Editors --- "Youth Affairs" [2000] AltLawJl 50; (2000) 25(3) Alternative Law Journal 139

• YOUTH AFFAIRS
• Mandatory sentencing and diversion programs
• Radical changes to Children's Court in Victoria
• Extended Queensland Police move-on powers to impact on young indigenous people
• Youth justice reform in Tasmania

YOUTH AFFAIRS

Mandatory sentencing and diversion programs

In early April, facing the threat of a back bench revolt to cross the floor, and what many regarded as the most significant threat to his leadership, Prime Minister John Howard met with NT Chief Minister Denis Burke in an at­ tempt to resolve the ongoing mandatory sentencing debate. As a result, on 10 April, Mr Howard announced to the parliament that the NT government had agreed to amend mandatory sentencing laws to ensure that they only apply to those aged over 18, and that police will be required to divert all juveniles arrested for minor offences before they are charged, to a diversionary program. The federal government also agreed to provide $5 million a year for diversionary programs including victim conferencing, drug and substance abuse diversion programs, and an Aboriginal interpreter service.

While the deal brokered by the Prime Minister and Mr Burke may have served to placate elements within the federal parliamentary Liberal party, and also to remove the issue from the front page of the daily newspapers, the campaign to see the end of mandatory sentencing will continue given that mandatory sentencing laws themselves have not been amended. Mandatory sentencing for young people under 18 will still exist in legislation, and there has been no movement at all to address mandatory sentencing laws for adults. The continuing devastating impact on children and young people as parents and older siblings are incarcerated for lengthy periods for trivial offences, will not be addressed until the laws are eventually repealed.

In addition, WA’s mandatory sentencing laws remain completely un­ touched, in spite of the fact that WA has the highest rate and the fastest growth in indigenous incarceration in Austr lia.

While additional resources for diversionary programs for young offenders in the NT, and for an indigenous interpreter service, are welcome, the process for implementation of the pro­ grams needs to be closely and independently monitored. Unfortunately, the record of the NT government on accountability and independent review is poor. Recent comments by the Chief Minister suggesting that the NT is happy to take the $5 million, but doesn't need assistance from anywhere else to develop appropriate diversionary programs gives little hope for improvement.

Radical changes to Children's Court in Victoria

Victorian Attorney-General Rob Hulls officially opened Melbourne's new Children's Court in April, announcing that the Children's Court will become an independent Court separate from the Magistrates' Court. The first president of the new Children's Court will be cur­ rent Senior Children's Court Magistrate, Ms Jennifer Coate, who will be appointed a County Court judge. The new profile and heightened status of the Children's Court is a significant step to­ wards raising awareness in the legal profession and the broader community of children's rights.

Other significant changes being considered, including raising the jurisdictional age limit of the Children's Court from 17 to 18, the development and expansion of diversion programs, and expansion of support programs for young offenders to reduce recidivism. This includes additional medium and long-term crisis accommodation sup­ port, and rebates to assist young people on methadone programs to allow them to continue on such programs.

In addition, following on from the government established Drug Policy Expert Committee (DPEC) Stage 1 Re­ port released in April, the Victorian government is seeking to implement an 18-month trial of multi-site injecting facilities in five targeted municipalities. However, the future of such an initiative requires the support of Independents in the Lower House, and agreement by the Coalition-dominated Upper House, for the necessary legislation to be passed. Even in the unlikely event that such support is forthcoming, it is likely that such facilities could only be accessed by those over the age of 18, with users under 18 being referred to youth outreach services.

Extended Queensland Police move-on powers to impact on young indigenous people

The Police Powers and Responsibilities Act 2000 (Qld) was passed by the Queensland parliament in March this year. The legislation represents a consolidation of different pieces of legislation, but has the effect of significantly widening existing move-on powers of police. Under the new legislation, police have the power to move on a person in the interests of public safety, public order, for the protection of the rights and freedoms of other persons, or if they consider that the person's presence 'causes anxiety to someone else'.

In addition, all malls throughout Queensland have been declared as prescribed places, in which police can exercise the move-on powers. Local councils can request for any place to be declared 'a prescribed place' in which the move-on powers can be exercised.

A recent research project undertaken by the Queensland Youth Advocacy Centre reveals the extent to which pre-existing move-on powers adversely impact on young people, particularly young indigenous people. Of the young people surveyed across Queensland:

• 52% were known to police prior to being moved on;

• 10% were moved on from areas not covered by the legislation;

• 57% were given a direction not covered by the legislation;

• 95% of respondents considered the move-on direction to be unfair, for reasons such as they were not doing anything, or that they were just sit­ ting and talking to friends; and

• 37% were indigenous young people.

The extended move-on powers represent a further curtailment on the freedom of movement and freedom of association of young people in public space in Queensland, given the manner in which these powers have been used in the past.

Youth justice reform in Tasmania

After almost three years awaiting proclamation, the Youth Justice Act 1997 (Tas) finally came into force in February, reforming much of the sadly neglected youth justice system in Tasmania. The new legislation formalises a process of diversion of young people from court and detention. Specifically, it provides a range of diversionary options to deal with young offenders, which include informal cautions by police, formal cautions administered by police, referral by police to a community conference (facilitated by an appointee of the Health and Human Services Department rather than a police officer) and, as a last resort, court proceedings.

The legislation represents a radical improvement on the disposition options under the previous legislation, the Child Welfare Act 1960 (Tas), which had been in place for nearly 40 years. This legislation provided for no diver sionary measures for young offenders. On conviction the Children's Court only had three options: to admonish and discharge the youth; remand the youth in custody for observation for a maxi­ mum period of three months; or make a finding that the child was either neglected or uncontrollable and declare the child to be a ward of the State.

Since the new legislation was implemented there have been some teething problems, particularly amongst police, concerning their role in the new diversionary processes. The new legislation only empowers specially authorised police officers to administer formal cautions. However, there are indications that police are choosing to incorporate key features of a community conference (shaming, victim participation etc) into the process leading up to the administration of a formal caution.

Also, under the new legislation any­ one under 18 cannot be imprisoned in an adult facility without a special court order on the grounds of exceptional security requirements. This is a significant change, given the recent history of Risdon Prison, Tasmania's only maxi­ mum security adult prison where, previously high security juvenile prisoners over 14 were often housed. In the last six months of 1999, there were five deaths in the prison, three of which were young people under 22 years of age.

Louis Schetzer

Louis Schetzer is Director, National Children s & Youth Law Centre, Sydney.

Thanks to Sarah Nicholson from North Melbourne Legal Service, Paul Spooner from the Queensland Youth Advocacy Centre, and Stephen Hall from Hobart Community Legal Service for their input.