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Bargen, Jenny --- "Kids, Cops, Courts, Conferencing and Children's Rights - A Note on Perspectives" [1996] AUJlHRights 5; (1996) 2(2) Australian Journal of Human Rights 209

Kids, Cops, Courts, Conferencing and Children's Rights - A Note on Perspectives

Jenny Bargen[*]


Since the late 1980's in almost every Australian State and Territory there has been growing interest in, discussion about, and adoption of various models of diversionary conferencing for young offenders. Most Australian models manifest several similarities to the New Zealand scheme of Family Group Conferencing which commenced operation in that country following the introduction of the Children Young Persons and their Families Act 1989.

While some schemes pay at least lip service to the idea of children's rights, a concern with the rights of children has not been the or even a paramount consideration in the minds of many of those responsible for introducing others. This omission seems to be particularly troubling in New South Wales, where the political arguments surrounding the introduction and operation of the various schemes operating have been quite fierce.

There are several Articles of the Convention on the Rights of the Child (CROC, ratified by Australia in December 1989) which are specifically relevant to a rights focussed discussion of conferencing. These include:

* Children's rights should be respected and ensured without discrimination of any kind (Article 2);

* The best interests of the child shall be a primary consideration in all actions concerning children (Article 3);

* Appropriate legislative, administrative and other measures shall be undertaken to implement the rights recognised in CROC (Article 4);

* The responsibilities, rights and duties of parents and extended families to provide guidance to the child in the exercise of the rights in accordance with the child's evolving capacities should be respected and facilitated (Article 5);

* Children who are capable of forming their own views should be give the opportunity to freely express these views. A child should be provided with the opportunity to be heard in any judicial and administrative proceedings affecting them, either directly or through a representative (Article 12);

* Both parents have common responsibilities for the upbringing and development of their child, in the best interests of the child. The State should provide assistance to parents in the performance of these responsibilities (Article 18);

Every child alleged as, accused of, or recognised as having infringed the penal law should be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society (Article 40). This article goes on to assert the following minimum guarantees for children accused of criminal offences

- the presumption of innocence;

- the right to be promptly informed of the charge(s) against them and to have legal or other assistance in the presentation of their defence;

- the right to have the matter determined expeditiously by a competent authority in a fair hearing with legal assistance and in the presence of parents or guardians;

- the right not to be compelled to testify or to confess guilt;

- the right to competent, independent and impartial review of decisions and measures imposed in consequence of decisions;

- assistance by an interpreter where required;

- respect for the child's privacy at all stages.

* Article 40 also allows for non-judicial measures for dealing with children who have infringed the penal law, provided that human rights and legal safeguards are fully respected.

1. Model 1: statutory schemes of conferencing

(i) New Zealand

The New Zealand scheme has many objectives which are no different from those found in juvenile justice policy elsewhere - holding the young offender accountable while enhancing their welfare, diversion from court, detention as a last resort, and the protection of children's rights.[1] In addition to these standard objectives, New Zealand has some unique and highly innovatory objectives - participation in decision making by young people and their families, strengthening of family bonds, victim involvement, consensus decision making and cultural appropriateness.

Unlike the position in many Australian models of conferencing, Family Group Conferences (FGCs) are convened only "for offences and offenders which are considered by the police to be too serious or persistent to be dealt with by warnings and informal police sanctions (such as apologies). There are two routes to an FGC, either by a "direct referral" to a Youth Justice Coordinator (YJC) or, when there has been an arrest and charges have been laid, by referral from the Youth Court."[2]

The FGC is thus the decision making hub of juvenile justice in New Zealand. Its processes have been described as follows:

The FGC is a meeting at a time and place chosen by the family and attended by the young person, the family (including the wider family), the victim, the police, the youth advocate (young person's lawyer) and any other people whom the family wishes to have present. It is arranged by the Youth Justice Co-coordinator (YJC) who acts as facilitator and mediator between family and the police, although the YJC can invite others to act as facilitator (especially if this is culturally important). Usually, after the introductions and greetings, the police describe the offence and the young person admits or denies involvement. If there is no denial, the conference proceeds with the victim describing the impact on him or her of the offence. Views are then shared about how matters can be set to rights. The family deliberates privately before the meeting reconvenes with the professionals and the victim to see if all are agreed on the recommendations and plans advanced by the family.[3]

The FGCs have been continuously monitored and regularly evaluated from their inception. Some objectives such as the constructive engagement of young people in decision-making, full victim participation, and responsiveness to cultural diversity remain to be fully achieved.

Maxwell and Morris found that many of the families and young people whom they interviewed in their research evaluating the FGCs felt much more involved in the process than they had in the (former) court process, which they had seen as "alien, remote and frustrating".[4] But this feeling was not shared by all the young people interviewed during the course of their extensive research. More than one third of the young people interviewed did not feel involved. "[Y]oung people answered questions about their involvement in a way which indicated that they were either excluded by the adults present (literally by the adults ignoring them almost entirely or by the way in which adults asked questions) or that they did not feel able to participate because of feelings of shame and embarrassment, or simply because they did not know what to say".[5] Few young people considered that they had in fact been a part to the decision made in the FGC. In contrast, parents were much more likely than young people to identify themselves as the decision makers. Some families identified police as "determining the outcome".[6]

For a number of reasons, including inadequate notice, victim participation occurred in less than half of the FGCs studied in the research conducted by Maxwell and Morris. For those victims who did attend their level of satisfaction with the outcome was less than that for all other participants.[7]

Maxwell and Morris found examples in their research

of both cultural processes in action and cultural conflict in action. ... In the view of the Maori researchers, most of the FGCs they attended were instances in which the interpretation of the Act or neglect of the intent of the Act resulted in culturally inappropriate processes taking place. They saw this situation arising from ignorance of the Act, a dearth of resources and mismanagement, rather than from any inherent faults in the legislation itself. [8]

The Children, Young Persons and Their Families Act is designed to facilitate culturally appropriate responses which will comply with the provisions of CROC and in particular, ensure the elimination of discriminatory treatment based on race. Given the detailed nature of the Act, the problems outlined by Maxwell and Morris may be resolved in time through adequate education of those working under the provisions of the Act and by making available the resources necessary for flexible, culturally sensitive implementation.

Despite these negative findings, the general consensus is that the scheme has worked exceedingly well. The use of arrest has been minimised, the bulk of young people are effectively diverted from court and the number of incarcerated young people has been drastically reduced. Real problems remain in the areas of resources and the provision of adequate and accessible services to young people and their families.[9]

The role of the police

In the New Zealand approach to juvenile offending the police role is limited by the legislation. They must adopt low key responses to juvenile offending wherever possible. The potential for net widening is limited because only the more serious offences will be dealt with in an FGC. Police may caution the young person for minor offences but must refer the young person to the Youth Justice Co-coordinator, or to the Youth Court through the mechanism of arrest and charge, in all other cases. Police may participate in, but are not organisers of, nor meant to be principle decision makers in the FGCs. Even though the role of the police in the whole system of juvenile justice in New Zealand is therefore quite circumscribed, Maxwell and Morris found that of all those involved in FGCs, police expressed the highest level of satisfaction with the outcomes.[10] Given that many families and young people identified the police as the group which had most influence over the decisions and outcomes of FGCs, this finding is not entirely surprising. It does, however, underline concerns that it is difficult to ensure, even in a well thought out scheme which has as one of its objectives the empowerment of young people and their families, that the rights of children to be heard and to fully participate (according to their level of maturity) in all decisions concerning them are respected.

The role which the police should play in conferencing has been the focus of intense debate in many parts of Australia.[11] In all conferencing schemes in Australia, except the fledgling pilot operating in Victoria, the police play a much more significant part than they play under the New Zealand Act. The role played by police or allocated to police in supporting legislation could be said to be an indicator of the degree of recognition of or respect for children's rights apparent on the face of any conferencing scheme, as well as an indicator of the recognition or acceptance of research evidence concerning the generally problematic nature of the relations which exist between young people and police across Australia.[12] In their discussion of diversion, Blagg and Wilkie repeat the oft made assertion that police control of conferencing adds to "their already substantial arsenal of powers over young people",[13] and report on "[s]tudies of "police led" schemes [which] found that the system had a potential toward "net-widening" and "mesh thinning", where youths who could more appropriately be given a straight forward caution were expected to carry out reparative activities".[14] These concerns reflect a belief that children's rights to non-judicial measures which respect human rights and legal safeguards, to the presumption of innocence, to procedures which enable young people to express their own opinions and wishes and to be provided with an advocate in legal and other proceedings concerning them, may not be facilitated nor observed in a scheme of conferencing which is partially or wholly controlled by police.

(ii) South Australia

In early 1994 South Australia implemented a completely 'reconstituted' scheme of juvenile justice which aims to divert all but the most serious cases from the Youth Court through a three tiered system of cautioning, conferencing and court appearances. The statutory policies contained in the Young Offenders Act 1993 (SA) require that young people be held responsible for their offending, penalties must be sufficiently severe to deter further offending, and the community must be protected against violent or wrongful acts. Secondary objectives are that respect should be paid, where appropriate, to the strengthening of family relationships; to permitting young people to remain in a familiar environment and not unnecessarily interrupting their education, and to avoid the impairment of young people's sense of racial, ethnic and cultural identity. Compensation and restitution should be provided for victims in appropriate instances.[15]

When a young person allegedly offends they may be dealt with through four different mechanisms:

Informal cautions: given for very minor offences when a police officer thinks that no action other than a stern warning is necessary.[16]

Formal cautions: given for minor offences admitted by the young person where the police officer considers that the offence is too serious to warrant an informal caution but not serious enough to consider referring the young person to a Family Group Conference or to the Youth Court. Before administering the formal caution, the police must tell the young person that they are entitled to obtain legal advice and to ask that the matter be dealt with by the Youth Court. Parents, victims and any other adults who have a close association with the young person may be present when the formal caution takes place. After administering a formal caution, police can seek undertakings from the young person such as a promise to pay compensation or apologise to any victim of the offence or to carry out a period of community service not exceeding 75 hours. A written record is kept of the formal caution, which amounts to evidence of the commission of the offence and may be used in subsequent proceedings against the young person. Where the young person does not comply with the conditions imposed, he or she may be referred to a Family Group Conference or charged and sent to the Youth Court.[17]

This system of informal and formal cautioning is designed to divert the majority of young people from the more serious methods of dealing with their alleged offending, including from Family Conferences. The point of entry into the system by the young person as determined by the police depends on factors such as the seriousness of the offence and the extent of the harm caused; whether the young person has offended before and the likelihood that they will offend again; and whether or not the young person admits the offence.[18] Diversionary decision-making thus remains firmly in the hands of the police and, in addition to the difficulties inherent in police relations with young people outlined earlier, may continue to be infused, for example, with the discriminatory practices towards Aboriginal young people which were a feature of the previous system.[19] As Blagg and Wilkie suggest, "[c]autioning has not yet moved the situation beyond that which existed under the old system".[20]

Family Conferences: It is at this point that the South Australian approach is most like that in New Zealand. Youth Justice Co-coordinators (YJCs)[21] organise a Family Conference (FC) after receiving notification from the police of the offence, the victim and the offender. A police officer attends the conference, as do the victim and their support people. The young person and his/her parents, guardians, and anyone else who has a close association with them and whom the police consider may be able to usefully participate are invited to attend. The young person is also entitled to have a legal adviser present at the conference. The conference must reach consensus; both the young person and the police representative may veto decisions made by the conference . The FC can require the young person to enter into undertakings or pay compensation to the victim or carry out community service up to a maximum of 300 hours, although no agreement made by the FGC can exceed the limits imposed on sentences in the Youth Court. Where the young person fails to attend the conference, or the conference fails to reach consensus, or the young person does not comply with the agreements reached at the conference, the YJC must refer the matter to the Youth Court.[22]

Youth Court: a young person will be charged and put before the Youth Court if they deny committing the offence; commit a serious offence; are `persistent offenders'; ignore formal cautions; ignore or fail to complete agreements entered into at an FC; or refuse to undertake community work.[23] Where the Youth Court finds a young person guilty of an offence, the Court may refer the matter back to a conference for resolution.[24]

While the SA conferencing scheme has some similarities to the NZ model on which it is based, there are a number of important differences. In New Zealand, conferences are the responsibility of Youth Justice Coordinators (YJCs) who are employed by the Department of Social Welfare. YJCs are drawn from a variety of backgrounds, such as social work, probation or the prison service.[25] "The YJCs are the managers of the youth justice system, information providers and facilitators, and mediators between young people, their families and the police, and between young people, their families and victims".[26] This arrangement takes responsibility for organising and running conferences out of the hands of criminal justice personnel and provides a buffer between young people and police which is stronger than that provided in South Australia and arguably absent in most of the other Australian models of conferencing. This buffer may be important, for example, in ensuring that the presumption of innocence is acknowledged by minimising the pressures to plead guilty[27] in order to avoid a court appearance, and that children's rights to participate in decisions which concern them are facilitated, in particular through the provision of legal advice and advocacy at critical points prior to and during the FCs.

In contrast, responsibility for preparing, organising and running FCs remains in the hands of criminal justice personnel in South Australia. The administering authority for Family Conferences in SA is the Department of Courts Administration. Youth Justice Co-coordinators (YJCs) are appointed by this Department in consultation with and with the approval of the Senior Judge of the Youth Court.[28] All Magistrates of the Youth Court are automatically designated as YJCs but unless some other YJC is not available (which may be the case, for example, in country areas), magistrates do not act as YJCs on a regular basis. This is potentially problematic because Magistrates who act as YJCs are being asked to perform a role which is essentially different from their usual adjudicative and dispositionary role in the (SA) Youth Court.[29]

Police are the gatekeepers who decide on eligibility for referral to the FCs. It follows that the gatekeepers rather than the YJCs have the primary responsibility for, and, more importantly from a rights perspective, the ability to control, the number or seriousness of the cases which YJCs are required to process. The power of the buffer against discriminatory decisions concerning eligibility for diversion at the gate is diminished in comparison to the potential of the New Zealand buffer to minimise inappropriate or discriminatory diversionary decisions.

In New Zealand, an FGC must be convened for every offence and all alleged offenders. In this way, the young person and their family play a significant part in decision making even when the offence is a serious one which must be dealt with by the Youth Court. In contrast, in South Australia opportunities for real participation by young people and their families are provided only when an FC is convened. YJCs can convene an FC only following a discretionary decision made by the police or by the Youth Court. As a result, young people and the families of young people who are alleged to have committed a more serious offence (and the victims of these offences) have limited opportunities for participation in decision making in South Australia.

For the more serious matters not referred to a YJC by the Youth Court, the young person, their family, `significant others', and any victim play little part in the decision making process in the Court.[30] The Youth Court does not take any welfare considerations into account, but unlike the New Zealand Youth Court, will not have the opportunity through an FGC to work with the young person, their family or the victim in shaping an appropriate response.

(iii) Western Australia

The Young Offenders Act 1994 (WA) came into operation during 1995. This Act, like the New Zealand and South Australian Acts, is designed to divert all but the most serious cases from the Youth Court, by formalising police cautioning and the pilot scheme of Youth (now Juvenile) Justice Teams (JJTs) which operated in two districts during 1993 and 1994.[31] The stated "main objectives" of the Act are to ensure the observation of the legal rights of children and young people involved with the criminal justice system,[32] to enhance and reinforce the role of responsible adults,[33] families and communities in minimising the incidence of juvenile crime, punishing and managing young persons who have committed offences, and rehabilitating offending young people towards responsible citizenship,[34] to integrate young offenders into the community, and to ensure that all dealings with young people under the Act are culturally appropriate and recognise and enhance cultural identity.[35] For a number of reasons it is not clear that the scheme of the Act will easily facilitate the achievement of these objectives.

The general principles which must be observed "in performing functions under the Act", are directed towards fair treatment of alleged young offenders, ensuring acceptance of responsibility for conduct by young offenders, protection of the community from illegal behaviour and the young offender from penalties more severe than those meted out to adults for similar offences, participation by victims in the criminal justice process, support for adults responsible for the upbringing of young people, taking non-judicial measures where appropriate, and dealing with young offenders in a way which strengthens family bonds, fosters the ability of families to develop their own means of dealing with offending by their children, and recognises the right of a young person to belong to a family.[36]

The model operating in Western Australia has features in common with the Wagga [see below] and South Australian models in that it is a front end, primary screening device which employs conferencing as a diversionary strategy. It differs from these others in that the diversionary system is managed by a multi-agency team comprising a police officer, youth justice worker, education officer and Aboriginal community worker in appropriate areas. ... [T]eams take referrals from the police where the offence "is not part of a well established pattern of offending" (s.24(a)). This provides some scope for the police to give more than one caution.[37]

As in South Australia, the young person may be referred to the team by the police prosecutor or the Children's Court and the team may refer the young person back to the police for cautioning or back to the Court, in cases where the team considers that they should not deal with the matter. Referral to a Juvenile Justice Team (JJT) is no guarantee that the young person will not have to appear before the Western Australian Children's Court. Where the Court refers a matter to a JJT, the Court can take the young person's response to the decisions of the team into account when sentencing. If the team's terms and conditions have been complied with, the Court must dismiss the matter.[38]

Like New Zealand, South Australia (and incidentally, Queensland[39]) cautioning now has a legislative basis in Western Australia.[40] Police may administer a caution to young offenders instead of laying charges in appropriate circumstances. Factors which indicate that a caution should not be administered include the seriousness of the offence and the number and seriousness of previous offences committed by the young person. Unfortunately, "the legislation lacks the clear bias towards cautioning noted in the South Australian system".[41] While police must consider whether it might be more appropriate to administer a caution or even take no action, than to arrest and charge,[42] the police decision whether or not to administer a caution remains essentially discretionary.[43] Unlike South Australia, where gatekeeping decisions are the responsibility of a senior police officer, or New Zealand, where gatekeeping is largely in the hands of the YJCs, in Western Australia the arresting officer has the role of gatekeeper.[44] The offences which cannot be referred to a JJT are set out in two schedules appended to the Act and include a wide range of offences which would usually be referred to a New Zealand Family Group Conference or a South Australian Family Conference. As in South Australia, but not in New Zealand, police play a significant role both in screening decisions and in the work of the JJTs.

Unlike New Zealand but like South Australia, the co-coordinator of a Western Australian JJT is an officer of the Ministry of Justice. The only other mandatory member of a JJT is a Police Officer appointed by the coordinator on the nomination of the Police Commissioner.[45] Where practicable, the coordinator will also appoint a representative of the Education Department, a person who is a member of the young person's ethnic or minority group, and anyone else who the co-coordinator wish to include in the team.[46]

While victims, responsible adults, the co-coordinator and all other members of the JJT must make an unanimous decision concerning how to deal with the matter, there is little in the legislation to suggest that the young person has any right to participate in the decision-making other than to decide to opt out of the conference proceedings.[47] The young person must agree to comply with the terms specified by the team, but the team may either impose further terms on the young person or send the matter back to the police or the court if it considers that the young person has not complied or is not complying with their terms.[48] JJTs cannot make orders for restitution or compensation but may record undertakings or agreements by the young person to provide restitution or compensation.[49] These provisions are in sharp negative contrast to the provisions made for young people's participation in conferencing in both New Zealand and South Australia outlined in earlier sections of this article.

2. Model 2: non-statutory schemes of conferencing

Non-statutory conferencing schemes do not form part of a comprehensive statutory scheme of juvenile justice. The problems which flow from a lack of a legislative base include inconsistencies in methods of conferencing across sites, incomplete and inconsistent data sets, problems in comparability with existing data on cautioning and court outcomes, problems in the generalisation of evaluation findings, and difficulties in measuring the use of discretion.

(i) Wagga Wagga, NSW

In 1991 sections of the New South Wales Police Service introduced what they called `an effective cautioning scheme' in the southern city of Wagga Wagga.[50] The advantages and disadvantages of the philosophy and practice of the Wagga model have been the subject of vigorous debate in a multitude of forums.[51] The scheme operated in Wagga Wagga until 1994 when it was replaced by a pilot scheme of Community Youth Conferencing introduced by the Attorney-General's Department and organised and run by local Community Justice Centres.[52] The Wagga scheme has had an enormous influence on the development and location of conferencing in other parts of Australia.

The aim of the conference is to shame the young person for the offending behaviour and then to `successfully reintegrate' the young offender into the community. This is in contrast to the aim of the conference in New Zealand and perhaps in Western Australia, which is to mend broken bonds within the family structure and empower young people and their families towards this goal through the provision of adequate resources and referral to appropriate agencies.

The instigators of the Wagga scheme drew on the New Zealand model of FGCs and from criminologist John Braithwaite's theories of reintegrative shaming.[53] However, because they were working mostly from a police perspective, which includes a belief that young offenders are treated leniently by the courts, and that the traditional juvenile justice system does not allow any space for the voices of victims, it was decided that police should be the main actors in the Wagga Wagga model. Police decide which young people are eligible for attendance, which other people should attend, and how the conference should be organised and operated. "[T]he conferencing format and victim involvement exists solely as optional alternatives for the police to pursue at their discretion. ... the police, rather than Youth Justice Coordinators, run the conferences, contact victims and supervise outcomes." [54]

To police participating in the Wagga scheme, the participation of people who have been harmed by the offence is critical to the fulfilment of the aim of shaming, but more importantly for the police, their inclusion means that victims have a real say in the decisions made at the conference concerning the young person. The aim of the cautioning conferences is said to be "to reach a collective decision about how best to repair the damage and minimise further harm arising from the incident".[55]

In order to provide a sense of legal legitimacy, reliance was placed on the common law powers of police officers to caution for minor offences.[56] Eligibility for referral is the same as that for 'ordinary' cautioning, which, carries the potential for discriminatory discretionary decisions, particularly those concerning indigenous or 'ethnic' young people. Only first or minor offenders who admit guilt are eligible for referral to this extended form of cautioning. The young person is not given an opportunity to obtain legal advice on the decision about whether or not to plead guilty. Unlike in both New Zealand and South Australia, is the young person is not permitted to have a legal adviser present at the conference. Young people's rights not to be compelled to confess guilt, and to be provided with the opportunity to be heard, either directly or through an advocate, are obviously at risk here.

The police who initiated this scheme were absolutely convinced of its worth in improving police understanding of young people and their families and in providing a relatively good venue for victims. One part of a nine-month evaluation of the scheme in 1993, using data from January 1990 to mid October 1993, focussed on the question of reapprehension rates but found no significant difference in these rates before and after the introduction of the scheme.[57] Even though the police were cautioning far more frequently because they believed in the worth of the scheme, the percentage of young people who were apprehended by the police for a further offence after having been cautioned did not change. Victims and parents interviewed by the evaluators some time after participating in a conference were all enthusiastic about the benefits of the scheme. In comparison to the numbers of interviews recorded of parents, victims and other professionals who had participated in a conference, few young people were asked their opinion of the conference.

The Wagga Wagga model has now been adopted to varying extents in juvenile justice in Queensland,[58] the ACT[59] and Tasmania,[60] and a variant (known as Community Accountability Conferences) operates in schools in Queensland and New South Wales as an option for dealing with harmful behaviour (by students) within the school. Police are involved.[61]

(ii) Community Aid Panels in NSW

Community Aid Panels (CAPs)[62] have been operating for both adults and juveniles with little supervision or regulation other than that of the local magistrate in many districts in New South Wales since 1987. Little research has been undertaken on their operation or outcomes. Estimates of the number of CAPs and their modes of operation are therefore difficult to obtain. One of the few published evaluations of a CAP outlined their operation in the following way:

Attendance at the panel is promoted as voluntary, agreed to after an initial appearance before the magistrate at which the person admits guilt. The magistrate then adjourns the case for approximately three months, during which the volunteer attends the panel and as a result of a "full" discussion with the panel members on the background of the offence, agrees to voluntarily undertake some form of community work, or educational or rehabilitative program appropriate to the circumstances of the offence. When the case returns to court the magistrate has the discretion to include the community work as a mitigating factor in sentencing.[63]

The Social Issues Committee of the Upper House of the New South Wales Parliament conducted an inquiry into all aspects of juvenile justice in NSW, including the CAPs, during 1992 and 1993. The committee recommended that CAPs should ultimately be phased out of operation and replaced with a properly trialed network of Children's Panels.[64] Unfortunately, their proposals on the form and operation of the panels did not extend to the protection of children's rights to be free from pressures to plead guilty, equality in treatment, or access to advocacy and participation in decision making, all of which are clearly at risk in the operation of the CAPs themselves.

(iii) Community Youth Conferencing in NSW

Following the release of the White Paper on Juvenile Justice by the (previous) coalition government[65] a pilot scheme of Community Youth Conferencing (CYC) was introduced in 6 districts (including Wagga Wagga) of New South Wales in late 1994. The pilot is continuing under the Labor government. The CYC is based on principles of family and victim participation, and an acceptance of responsibility and accountability for the offence by the offender. Each pilot is responsible to a government appointed CYC Council, which includes representatives from Community Justice Centres (CJCs), the Police Service, the Departments of Juvenile Justice and School Education and the community, and is chaired by the Deputy Chief magistrate of the Local Court. The Council is responsible for issuing guidelines and for overall monitoring of the pilot scheme. The CJC is responsible for training co-coordinators for the scheme. Police may be trained and act in this role. The outcome of a conference may include any combination of an apology, restitution or money reparation to the victim, or community reparation in the form of work in the community.

Limitations on outcomes are similar to those imposed in South Australia and Western Australia. Agreements (which must be unanimous) made at the meeting must be no harsher than the orders which could be imposed by the Children's Court for a similar offence in similar circumstances. As in South Australia and Western Australia, the NSW Children's Court can refer a young person to a conference where the Court considers that the matter has been inappropriately put before it, or as a way of involving a wider group of people in the decision about what orders to make concerning the young person - a small post-hoc protection for young people against inappropriate or discriminatory decisions concerning eligibility made by the police. Officers of the Department of Juvenile Justice are responsible for monitoring compliance with outcome plans.

Police role

The police play a major screening role in the CYCs, effectively controlling the number and seriousness of the matters which are referred to the CJCs for conferencing. This role is similar to that played by the police as gatekeepers in South Australia, and obviously carries with it the same potential for the breaches of young people's rights discussed in the South Australian section.

Police may caution an alleged offender, refer the matter to a CYC or institute court proceedings via arrest and charge. In stark contrast to the position in South Australia, Western Australia and Queensland, cautioning in New South Wales is not regulated by legislation. Cautioning guidelines are to be found in the Police Instructions issues by the Commissioner of Police and are vulnerable to unregulated, uneven and discriminatory application.[66] After deciding not to caution, police must either refer the young person to the CJC responsible for organising and running a CYC, or arrest and charge them. Car theft, sexual assault and a number of other more serious offences cannot be referred to a CYC by the police but must be dealt with by the Children's Court. Eligibility for referral to a CYC depends on an admission of guilt by the young person. No legal advice is made available at this point but the parents/guardians of the young person should be present when this decision is made. Once an admission of guilt has been obtained, a review panel consisting of senior officers allocated the responsibility makes a decision concerning whether the offence can and should be referred to a CYC. The young person (in the presence of his/her parent(s)) must also consent to the referral of the matter to the CYC. Again, no legal advice is made available at this point. In South Australia, legal advice must be made available to the young person at each of the points at which it is missing in the CYC processes described in this paragraph. Once again, the rights of children and young people to be free from pressures to admit guilt, and to advice on whether a CYC is an appropriate option are neither facilitated nor respected in this form of conferencing.

Conference coordinators

Responsibility for organising and conducting CYCs does not lie with criminal justice personnel as in South Australia and Western Australia, or with welfare personnel as in New Zealand, but with mediators employed by the network of Community Justice Centres operating under the Attorney-General's umbrella. A CJC in each of the districts in which the pilot is operating takes responsibility for organising and running the CYC once the matter is referred to it by the police. Once the police notify the CJC of the referral, and provide contact details concerning the alleged offender, their family, and any victim of the offence, the CJC is responsible for contacting the young person and their support people and any victim and their support people and arranging a suitable time for the conference. Two specially trained mediators and a police officer responsible for presenting the 'facts' of the alleged offence attend the conference.

Engagement of young people and their families

There is little in the information available on CYCs to indicate whether measures will always be taken to ensure that the involvement of young people in decision making in CYCs will be equal to that of all other participants. The young person, his or her parents and significant other adults, any victim and their support person(s), the arresting officer, and two `mediators' specially trained by the CJC for the purpose of CYCs are participants. Unlike in New Zealand and South Australia the young person is not permitted to have a legal adviser present at the conference. Other than limited and unreliable anecdotal evidence, no information is available concerning the perceptions of young people or their families concerning the CYCs.


In the first six months of operation, only 98 young people were referred to CYCs in all regions of operation. The majority were Australian born, English speaking and still at school. The most common age was 15. About 30% were girls. Few conferences had been staged in 3 of the 6 areas and none had occurred in one. No information is available on the satisfaction with CYCs by any of the participants or on the extent to which the pilot is meeting its goals.[67]

While the CYCs bear some similarity to the New Zealand, South Australian and Wagga Wagga models, the differences are significant When considered together with some of the further shortcomings pointed out in the previous paragraphs, these differences may indicate a failure to incorporate in the design of the CYCs the minimum requirements for non-judicial methods for dealing with children who have infringed the penal law which are set out in Article 40 of CROC - full respect for human rights and legal safeguards.

(iv) Victoria

A `Juvenile Justice Pilot Project on Group Conferencing' for second and later young offenders referred by the Children's Court commenced operation in Victoria in April 1995. The pilot operates out of three Court locations and is organised and operated by a specially appointed person employed by a non-government youth agency.[68] According to the Program Description and Implementation Plan published by the agency[69] the key features of the Group Conferencing Project are that it is court referred; following a second or further court appearance; where a young person pleaded guilty or was found guilty; primarily focussed on building support for the young person; a further focus on victim-offender reparation or restitution as a vehicle for making amends for the offence in the overall plan; designed to empower the young person, family and/or significant others in deciding on outcomes; based on the New Zealand model of Family Group Conferences; and draws on the outcomes of other pilots operating for some months in Western Australia, South Australia and New South Wales.[70]

The project is designed to incorporate features of the New Zealand model which have been found to best meet the aims of that scheme and to address the issues which have arisen in evaluations[71] or raised in criticisms of conferencing by informed commentators.[72]

Responsibility for organising and running a conference is not in the hands of criminal justice or indeed any other government personnel. Legal advice is assured for young people at all stages of the procedure. Police do not play a major role in the conferences. The right to the presumption of innocence is addressed in the only way presently known to the criminal justice system, flawed as it is,[73] by putting the young person before the Court. Issues of gender, ethnicity and culture are addressed in the model. Every effort is made to ensure that the rights of the young person are respected and preserved during the conduct of the conference, and that appropriate referrals are made for the family and young person to supportive services already operating in the district.

The overall goal is to empower the family and the community of interest, including the victim, to deal more effectively with the young person's offending behaviour. Roles and expectations for 'Key Agencies and Participants'[74] are carefully defined.

Of all the schemes presently operating in Australia, this Victorian pilot appears to have the potential to meet many of the criticisms mentioned in earlier sections of this article. The pilot is still in its infancy and may prove to be generally unacceptable to governments on economic grounds. Enormous resources (both financial and human) will have to be expended on each conference in order to meet the ambitious goals of this project. Compared with the extensive resources already expended in juvenile justice systems,[75] which show far less respect for the rights of children and young people and has a proved track record in alienating children and young people from their families and for being culturally insensitive,[76] this may in the long run not be too high a price to pay.

Children's Rights and conferencing.

The UN Convention on the Rights of the Child, ratified by Australia in December 1990[77] requires that participating states seek to ensure that the rights of children (that is, those under 18 years of age) to be heard, to be protected from abuse and to participate in all decisions concerning their lives be acknowledged and respected by all tiers of government. Children should not be discriminated against on any grounds. They should be provided with full information about any decisions or actions which will affect them. They should have equitable access to justice through the legal system and be able to choose an advocate to assist them to put their own views in any decision making process which will affect them. They should not be separated from their families unless this step is in their best interests, properly determined by both the child and the relevant authority.

CROC does not as yet have anything other than persuasive power in law in Australia to date.[78] State governments do not formally have any mandatory obligations to ensure that the rights of children and young people are acknowledged and respected by government authorities.[79] However, the provisions of CROC can be used as a benchmark against which to measure the developments described above from the perspective of children and young people. It is from this perspective that the developments in New South Wales in particular (and those which have adopted the Wagga Wagga model in other States and Territories) are of most concern. At least in the New Zealand, South Australian and Western Australian statutory schemes and in the Victorian pilot there is a clear acknowledgment of the need to facilitate the protection of children's rights through weaving procedural and other safeguards into the fabric of the scheme. In New South Wales, however, the concept of the rights of children and young people seems to have been almost completely forgotten. After her comprehensive analysis of each stage of the New Zealand Family Group Conferencing from an offender's rights perspective, Kate Warner concluded that

Family Group Conferences have great appeal. They appear to have something for everyone. But in the process of providing alternative ways of dealing with young offenders, empowering families and victims, are the rights of the offender sacrificed? ... Due process considerations at the police investigatory stage may be less open to scrutiny. The issue of guilt may be glossed over. There may be no adequate opportunity to challenge the version of the facts accepted by the FGC. The ideals of proportionality, frugality and consistency of punishment may be undermined by FGC outcomes. It is acknowledged that the traditional legal system is not exemplary in these respects, that the practice of the law does not always measure up to the rhetoric and a rights based approach can be a front for a punitive response. The shortcomings of the traditional legal system are plentiful. The challenge of FGCs is to ensure that its positive features are not lost.[80]

Taking Warner's criticisms seriously and seeking to respect the rights of children and young people in any of the forms of conferencing described earlier in this article would mean doing more than is the case presently in almost all schemes except perhaps the Victorian pilot. In New South Wales, none of the voluminous literature produced by Moore and others[81] pays even lip service to this aspect. The Wagga Wagga model is designed to ensure that victims' interests are acknowledged and protected and that children and young people are shamed and reintegrated, but the voices of children and young people seem to be missing from the polylogue thus created.[82] The CYC model, too, talks little about protecting rights and much about holding young people accountable. As Warner notes, the traditional legal system is not perfect. But any alternative system must ensure that it is less, not more imperfect than the one it seeks to replace.


[*] Faculty of Law, University of New South Wales. A condensed version of this paper appeared in (1995) 3(4) Rights Now! (the newsletter of the National Children's and Youth Law Centre).

[1] Maxwell, G "Family Decision-Making in Youth Justice: The New Zealand Model" in Atkinson L and Gerull S (eds), National Conference on Juvenile Justice: Conference Proceedings No. 22, Australian Institute of Criminology, Canberra, 1993.

[2] Maxwell G and Morris A, "The New Zealand Model of Family Group Conferences" in Alder C and Wundersitz J (eds) Family Conferencing and Juvenile Justice: The Way Forward or Misplaced Optimism? Australian Institute of Criminology, Canberra, 1994 at 18.

[3] Maxwell, op cit at 118; Maxwell and Morris, ibid at 18.

[4] Maxwell and Morris, op cit at 30.

[5] Maxwell and Morris, op cit at 31.

[6] Maxwell and Morris, op cit at 32.

[7] Maxwell and Morris, op cit at 32-35.

[8] Maxwell and Morris, op cit at 37.

[9] See Maxwell, op cit, and Maxwell and Morris, op cit.

[10] Maxwell and Morris, op cit at 34.

[11] See for example, Moore D and O'Connell T, "Family Conferencing in Wagga Wagga: A Communitarian Model of Justice" in Alder Wundersitz op cit note 2 at 45-74; and Blagg H and Wilkie M, Young People and Police Powers, Australian Youth Foundation, Sydney, 1995, at 59-72.

[12] See, for example, Alder C, O'Connor I, Warner K and White R, Perceptions of the treatment of juveniles in the legal system, National Clearinghouse for Youth Studies, Hobart, 1992; White R and Alder C (eds) The Police and Young People in Australia, Cambridge University Press, Melbourne, 1994; Youth Justice Coalition, Nobody Listens: the experience of contact between young people and the police, Youth Justice Coalition and Youth Action and Police Association, Sydney, 1994; Blagg and Wilkie, ibid.

[13] Blagg and Wilkie, op cit at 64.

[14] Blagg and Wilkie, op cit at 63.

[15] Young Offenders Act 1993 (SA), s 3.

[16] Young Offenders Act 1993 (SA), s 6.

[17] Young Offenders Act 1993 (SA), ss 7, 8.

[18] Young Offenders Act 1993 (SA), ss 6-8.

[19] See Gale F, Bailey-Harris R and Wundersitz J, Aboriginal Youth and the Criminal Justice System: The injustice of justice? Cambridge University Press, Cambridge, 1990, for strong research evidence suggesting that discriminatory decisions by police concerning Aboriginal young people are further compounded as the young person was processed through the South Australian juvenile justice system prior to the introduction of the Young Offenders Act 1993 (SA). For similar research findings in NSW, see Luke G and Cunneen C, Aboriginal Over-Representation and Discretionary Decisions in the NSW Juvenile Justice System, Juvenile Justice Advisory Council, Sydney, 1995. Such discriminatory practices constitute a clear breach of Article 2 of the CROC.

[20] Blagg and Wilkie, op cit note 11 at 65.

[21] Magistrates of the Youth Court and other specially appointed persons. See Young Offenders Act 1993 (SA), s 9.

[22] Young Offenders Act 1993 (SA), ss 7, 10-12.

[23] Young Offenders Act 1993 (SA), ss 16-21. See also Youth Court Act 1993 (SA).

[24] Young Offenders Act 1993 (SA), s 17(2).

[25] Maxwell and Morris, op cit note 2, at 20.

[26] Ibid.

[27] See for example Wundersitz J, Naffine N and Gale F, "The Production of Guilt in the Juvenile Justice System: The Pressures to 'Plead'", (1991) 30 (3) The Howard Journal 192-206.

[28] Young Offenders Act 1993 (SA), s 9.

[29] Which is also subject to scrutiny from more senior members of the Youth Court and by the (SA) Supreme Court. See Youth Court Act 1993 (SA), Part 5.

[30] See O'Connor I and Sweetapple P, Children in Justice, Longman Cheshire, Melbourne, 1988 for research evidence from Queensland concerning the alienation children, young people and their parents feel from the processes of the Children's Court.

[31] The pilot scheme was closely modelled on the New Zealand scheme of Family Group Conferences. See Hakiaha, M "Youth Justice Teams and the Family Meeting in Western Australia: a Trans-Tasman Analysis", in Alder and Wundersitz op cit note 2, pp 103-119 for a description of the operation of this scheme and a comparison with the New Zealand FGCs .

[32] Young Offenders Act 1994 (WA), s 6(c).

[33] This person may be a parent, guardian or other person who has responsibility for the day to day care of a young person although the regulations made under the Act may exclude certain persons who otherwise fall within the definition. See Young Offenders Act 1994 (WA), s 3.

[34] Young Offenders Act 1994 (WA), s 6(d).

[35] Young Offenders Act 1994 (WA), s 6(e) and (f).

[36] Young Offenders Act 1994 (WA), s 7.

[37] Blagg and Wilkie, op cit note 11 at 65-66.

[38] Young Offenders Act 1994 (WA), ss 32, 33.

[39] Juvenile Justice Act 1992 (Qld), Part 2, Divisions 1 and 2.

[40] Young Offenders Act 1994 (WA), Part 5, Division 1.

[41] Blagg and Wilkie, note 11, at 66.

[42] Young Offenders Act 1994 (WA), s 22B.

[43] Young Offenders Act 1994 (WA), s 22.

[44] Blagg and Wilkie, op cit note 11 at 66. See Young Offenders Act 1994 (WA), ss 22A-23A.

[45] Young Offenders Act 1994 (WA), s 37(1).

[46] Young Offenders Act 1994 (WA), s 37(2).

[47] Young Offenders Act 1994 (WA), s 32(2) and (3).

[48] Young Offenders Act 1994 (WA), s 32(4).

[49] Young Offenders Act 1994 (WA), s 32(5).

[50] See Moore D, Facing the consequences", in Atkinson and Gerull op cit note 1, pp 203-220; O'Connell T, "Wagga Wagga Juvenile Cautioning Program: "It May Be The Way To Go", in Atkinson and Gerull, pp 221-232.

[51] See, for example, Alder and Wundersitz, op cit note 2; Blagg and Wilkie, op cit note 11 at 61-65.

[52] See section (iii), below.

[53] Braithwaite J, Crime, Shame and Reintegration, Cambridge University Press, Cambridge, 1989. See also Moore D and McDonald J, "Achieving the `Good Community': A local police initiative and its wider ramifications", in Hazlehurst K.M. (ed), Perceptions of justice: issues in indigenous and community empowerment, Australia and New Zealand, Central University Press, Queensland, 1995, pp 142-175.

[54] Blagg and Wilkie, op cit note 11 at 62-63.

[55] Moore and McDonald, op cit note 53.

[56] See Moore, and O'Connell, op cit note 1.

[57] Moore D and Forsythe, L A New Approach to Juvenile Justice: An Evaluation of Family Conferencing in Wagga Wagga, Centre for Rural Social Research, Charles Sturt University, Wagga Wagga, 1995

[58] The Wagga model is being trialed in four geographically distinct regions, according to information provided to the author by the Queensland Youth Advocacy Centre.

[59] The Federal Police have now adopted the Wagga Wagga model in the ACT. Conferences are convened for both adults (for a restricted number of offences, one of which is drink driving) and for young people. A large evaluation project is being conducted in Canberra on the use and effectiveness of reintegrative shaming conferences. The project will compare the effects of conferencing with those of a court appearance and will evaluate comparative costs, rates of victim participation and of participant satisfaction, and the degree of procedural justice for each form of intervention. See Moore and McDonald, op cit, note 53. See also Strang H, "Replacing Courts with Conferences", (1995) 11 (2) Policing 212-220..

[60] A 12 month state wide trial, of a conferencing scheme based on the Wagga Wagga model commenced operation in Tasmania in April 1995. It is rumoured that draft juvenile justice legislation is presently before the Tasmanian parliament which includes provisions on family conferencing.

[61] Moore D B, "Pride, shame and empathy in peer relations: a case study with implications for theory in practice in education and criminal justice", in Oxenberry K, Rigby K and Slee P (eds), Children's Peer Relations: co-operation and conflict: Conference Proceedings. Institute of Social Research, University of South Australia, Adelaide, 1994, pp 212-235.

[62] See Bargen J, "Going to Court CAP in Hand: A Preliminary Evaluation of a Community Aid Panel", (1992) 4 (2) Current Issues in Criminal Justice 117-140 for a full description of CAPs.

[63] Ibid at 121.

[64] Standing Committee on Social Issues Report No. 4, Juvenile Justice in New South Wales, Parliament of New South Wales Legislative Council Standing Committee on Social Issues, May 1992.

[65] NSW Government, White Paper: Breaking the Crime Cycle. New Direction for Juvenile Justice in NSW, NSW Government, Sydney, 1994. The information contained in this section is drawn from the White Paper and the various (unpublished) documents on CYCs on file with the author.

[66] See Luke and Cunneen, op cit note 19 for research evidence on the compounding effects of discrimination cautioning decisions concerning Aboriginal young people in NSW; and see Blagg and Wilkie (op cit note 11), Chapter 5 for a rights focussed discussion of cautioning.

[67] Information obtained from the NSW Department of Juvenile Justice, October, 1995.

[68] Mission of St James and St John, Juvenile Justice Pilot Project on Group Conferencing: Program Description and Implementation Plan, Mission of St James and St John, Melbourne, 1995.

[69] Ibid.

[70] Mission of St James and St John, op cit at 6.

[71] Some of these are outlined in the earlier section of this article on New Zealand Family Group Conferencing

[72] See, in particular, Alder and Wundersitz, op cit note 2.

[73] See, for example, O'Connor and Sweetapple, op cit, note 30, and Wundersitz, Wundersitz, Naffine and Gale, op cit, note 27.

[74] `Key Agencies and Participants' include the young person, their families and significant others and community representatives, victims, legal representatives, police, courts, and the Department of Health and Community Services (Victoria).

[75] See Potas I, Vining A and Wilson P, Young People and Crime: Costs and Prevention, Australian Institute of Criminology, Canberra, 1990, which attempts `to assess the costs of benefits to the nation from the expenditure on juvenile crime prevention and the juvenile justice system' (at Preface).

[76] See, for example, the papers collected in Atkinson and Gerull op cit note 1; see also Youth Justice Project, Kids in Justice: a blueprint for the '90's, Youth Justice coalition and Law Foundation, Sydney, 1990; O'Connor and Sweetapple, op cit note 30; and Report of the Girls in Care Project, Girls at Risk, Women's Coordination Unit, Sydney, 1995.

[77] See National Children's and Youth Law Centre, Australian Children's Charter: A Charter of Rights for Children and Young People in Australia, Draft for Consultation, Australian Youth Foundation and NCYLC, Sydney, 1995.

[78] See Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 128 ALR 353.

[79] Sandor D, "Mandatory Reporting Laws: adolescents and their right to be heard", (1994) 5(4) Criminology Australia 17-22.

[80] Warner K, "The Rights of the Offender in Family Conferences" in Alder and Wundersitz, op cit note 2, pp 141-152, at 151

[81] See Moore D and Forsythe L, op cit note 57; Moore and McDonald, op cit note 53; and Moore, op cit note 61.

[82] Moore and McDonald, ibid.

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