Updates and background for this project (Digest)

• Introduction
• Juvenile crime and juvenile delinquency
• The development of a juvenile justice “system”
• The establishment of children’s courts
• Twentieth century developments
• Restorative justice
• The Young Offenders Act 1997 (NSW)

INTRODUCTION

2.1 In the case of young offenders, sentencing must be considered as part of a broader process of juvenile justice, where the injunction of applying the least restrictive form of sanction has particular importance and meaning. This is to ensure that sentencing practices take into account the youth of the offenders and the desire to prevent them from “graduating” into adult criminals. The sentiment has a long history. It can be given effect to in a number of ways, and historically it has been – ranging from a welfare approach to juvenile justice, to a “justice” approach, to diversion and restorative justice.

2.2 In light of the Commission’s endorsement of the policy of diversion underlying the contemporary approach to juvenile justice, and the Young Offenders Act 1997 (NSW) (“YOA”) in particular, a review of the historical evolution of this policy objective is instructive. However, in a report primarily concerned with sentencing, the historical description that follows can only be a brief précis of some key features.¹

JUVENILE CRIME AND JUVENILE DELINQUENCY

2.3 Cunneen and White have observed that both the phenomenon of juvenile crime and the concept of juvenile delinquency developed around the same time in the early 19^th century.² This observation stimulates an inquiry into the “relationship between the behaviours that are characterised as juvenile offending and the institutions and practices of the criminal justice system developed specifically to deal with youth”.³

2.4 It has been argued that the development of the concept of juvenile delinquency and the emergence of juvenile crime can be traced to changes brought about by the Industrial Revolution, in particular: the shift of populations from rural to urban societies; population growth; urbanisation; industrialisation; the breakdown of traditional methods of social control; and juvenile justice mechanisms that systematically detected juvenile offending.⁴

2.5 Another view of the effect of the Industrial Revolution places significance on the development of industrial capitalism, and the corresponding creation of an urban working class. Cunneen and White comment that “[n]ew systems of dealing with young people targeted the youth of this newly formed class”.⁵ Furthermore, the increased presence of working class youth, in conjunction with the materialisation of capitalist wealth in movable property, created an unprecedented potential for both juvenile crime and public concerns about delinquency.

2.6 This connection between a public “presence” of young people and public perception of juvenile crime remains an important factor in juvenile justice policy. Statistics both in New South Wales and other jurisdictions show that the majority of juvenile crime is property-related,⁶ and much of the interaction between young people and the police stems from the very public visibility of young people.⁷

2.7 In New South Wales, Seymour argues that two developments in the mid to late 1880s increased the numbers of juveniles coming before the magistrates’ courts. First, in 1850 an Act was passed extending summary jurisdiction to children under 14 charged with larceny or related offences.⁸ He suggests that this “probably encouraged the prosecution of some juveniles whose behaviour would previously have been ignored”.⁹

2.8 On the other hand, “the 1850 Act represented a substantial piece of discrimination in favour of children”.¹⁰ Although magistrates had, in the past, occasionally been discharging young offenders, the Act gave them the legal power to do so for the first time. The legislation provided that the court could dismiss the child with or without surety to be of good behaviour. Seymour also contends that the real significance of the 1850 Act was that “it paved the way for the development of Children’s Courts”.¹¹ The reason for this, he argues, is that:

the first step towards the creation of these courts was an acceptance of the notion that simple, speedy court procedures were appropriate for children. For these to be introduced, it was necessary for the existing rules on the jurisdiction of criminal courts to be modified. Trial by jury had to give way to summary trial.¹²

had the vagrancy charge not been available the police might well have turned a blind eye to the activities of children dwelling on the borderland of the criminal justice and child welfare systems.¹⁵

THE DEVELOPMENT OF A JUVENILE JUSTICE “SYSTEM”

2.11 The system of criminal law Australia inherited from England made few concessions to youth. From 1788 to the mid 19^th century, young offenders in the Australian colonies were subject to the same penalties as adults. Sentences were often harsh and out of proportion to the seriousness of the offence. Some magistrates and judges, however, took the view that young offenders should be treated differently from adults and used their powers to grant pardons, discharges, or conditional discharges, to avoid sending children to prison. Conditions attached included placing young offenders, particularly juvenile vagrants, in the child welfare institutions that developed in the early 19^th century.¹⁷ These approaches provide some early examples of a form of diversionary sentencing.

2.12 The development in Australia of a separate system for juvenile offenders was influenced by the agitation in England in the first half of the 19^th century for this reform.¹⁸ In addition, it came in response to the problem of absorbing the increasing number of young convicts transported from England.¹⁹ Young male convicts were apprenticed to boat-builders and carpenters, and females assigned as servants, as a way of removing them from adult convict barracks. The construction of the Carters’ Barracks in 1819,²⁰ with its training program and separate accommodation for boys under 16 introduced the following year, were further steps towards a separate system for juveniles.²¹ Seymour has described Carters’ Barracks as “Australia’s first special institution for juveniles”.²² The construction in 1833 in Port Arthur, Van Dieman’s Land, of dedicated accommodation for boy convicts at Point Puer was the next step taken in the development of special measures for juveniles.²³ Both Carters’ Barracks and Point Puer were criticised as brutal regimes, unsuited to reforming and deterring juvenile offenders.²⁴ Seymour, however, argues that in their attempts to develop reformative regimes that emphasised education and training, they “can be seen as forerunners of the industrial schools and reformatories which were established much later in the century”.²⁵

Industrial and reformatory schools

2.13 The establishment of the industrial and reformatory schools in the period 1863 to 1874 represented a major development in the creation of a separate and distinctive system for young offenders.²⁶ The establishing legislation gave courts the power to commit children to these schools for extended periods, for the purpose of training and education.²⁷ Unlike other States, New South Wales courts could not commit a young offender to a reformatory for trivial offences.²⁸ The release date was not set by the court; wide administrative discretion was given to the school to determine the child’s release. Committal to a school could be followed by a period of supervision in the community. The legislation also provided that school inmates could be apprenticed;²⁹ children could also be released “on licence” or “on trial” or be placed “at service”. Seymour suggests that these options paved the way for flexible sentencing.³⁰

2.14 The industrial and reformatory schools evolved out of charitable institutions, such as asylums and orphan schools.³¹ Seymour argues that when the first moves were made by the Australian colony to make special provision for children in trouble, it was neglected and destitute children who were the focus of attention. The institutions that evolved to deal with these children, namely asylums and orphan schools, provided “the foundations on which the industrial and reformatory schools were built”.³² Seymour observes that “some of the functions performed by these early institutions were taken over by the new schools, although the latter also catered for new categories of children, many of whom had previously been imprisoned as offenders or as vagrants.”³³

2.15 Seymour constructs an interesting argument that an appreciation of how similar the two types of schools were in aims and methods is vital to an understanding of the development of methods of dealing with young offenders. The existence of a system for dealing with non-offenders influenced both the methods employed for dealing with, and the attitudes towards, young offenders. From this can be traced the ambivalence which is still discernible in policies relating to young offenders ³⁴ There are thus, Seymour concludes, “historical, as well as philosophical, reasons for viewing young offenders in the same light as neglected children”.³⁵

2.16 With the use of options such as apprenticeships and licenses, and eventual dissatisfaction with industrial and reformatory schools, came the realisation that placement in the community could provide a complete alternative to institutional committal. The belief was formed before the end of the century that institutions, especially large ones, should only be used as a last resort for dealing with young offenders.³⁶

THE ESTABLISHMENT OF CHILDREN’S COURTS

2.17 At around the same time the industrial and reformatory schools were in use, separate children’s courts were created in Australia. The introduction in 1869 and 1870 in America by the State of Massachusetts of a system for prosecuting children separately from adults and replacing the police prosecutor with a “State agent” provided the impetus for this. The State agent enquired into a child’s family circumstances and presented the case in court.³⁷ The first Australian State to establish a children’s court was South Australia in 1890, followed by all other States early in the 20^th century. Polk calls children’s courts “the first great form of diversion”.³⁸

2.18 As noted in paragraph 2.8 above, Seymour argues that the establishment of children’s courts were a logical development of the extension of summary jurisdiction to certain offences introduced by the Act of 1850. Seymour argues that the first children’s courts were not completely new courts; “rather, they were modified courts of summary jurisdiction exercising special powers”.³⁹

2.19 The summary offences created by legislation in the 1870s and 1880s,⁴⁰ while intending to deal specifically with juvenile misbehaviour, were not strictly “status offences”, that is, behaviour that is not a crime if committed by an adult, such as school truancy, “uncontrollability”, “incorrigibility” or “running away from home”. The juvenile courts, however, introduced true status offences such as “being in danger of leading a lewd or immoral life”, “endangering one’s own welfare” and “being in need of care and protection”. In this way, Polk argues:

[T]he juvenile court became an explicit device for widening the mandate of control, from forms of strictly defined crimes to a wider set of concerns about the “conduct” of young persons thought to be in social “danger”. … In other words, from its inception the juvenile justice system was both a diversion (from the adult system) and an exercise in net-widening (in the sense that the boundaries of controlled behaviour were widened).⁴¹

Children’s courts in NSW

2.21 The Neglected Children and Juvenile Offenders Act 1905 (NSW) established children’s courts in New South Wales.⁴⁴ In addition to removing children from police courts, the Act eliminated jury trials for children and the risk of imprisonment on relatively minor matters. The Act laid the foundation for contemporary procedure. It required that children’s courts were to sit separately from other courts, and that special magistrates were to be appointed.⁴⁵ The legislation allowed for release on probation. Probation officers were attached to the children’s courts with the role of preparing background reports and conducting supervision. The use of probation became an important diversionary sentencing option for the children’s courts.⁴⁶

TWENTIETH CENTURY DEVELOPMENTS

2.22 In New South Wales, existing juvenile justice and child welfare laws were consolidated in the Child Welfare Act 1923 (NSW), which remained basically unaltered until the Child Welfare Act 1939 (NSW) (which in turn remained in force until 1988).

2.23 Throughout Australia in the first half of the century, adherence to the welfare model of justice that had dominated since the inception of the children’s courts continued.⁴⁷ However, in the 1960s, attitudes began to change. Some doubts about “child-saving”⁴⁸ policies had already begun to emerge in the 1920s and 1930s⁴⁹ and it was not long before the sole approach to juvenile justice was met with an alternative view. The prevailing view that the causes of juvenile offending, and the needs of the offender, ought to be addressed through treatment and education was balanced by a second view that focused primarily on the offence and called for firm punishment of the offender, both for deterrence and the public’s protection. Seymour argues that “[t]he subsequent history of the children’s courts can be seen as a search for the proper balance between” the two.⁵⁰

2.24 In the 1960s, the doubts about the children’s court and the welfare model of justice that had begun to emerge earlier became more pronounced.⁵¹ There was concern about: the effectiveness of rehabilitation policies; the protection of the young person’s legal rights; the potentially damaging impact of formal justice processes;⁵² coercive penalties for non-criminal matters; net-widening; indeterminate sentences⁵³ and administrative discretion; and injustice resulting from needs-based sentencing (lack of proportionality and consistency).⁵⁴ This led to replacement of the welfare model of justice with a more traditional “justice” approach, which placed greater emphasis on proportionality of punishment, the accountability of young people for their behaviour, and the protection of the young person’s legal rights.

2.25 By the time of a re-appraisal of children’s courts in the 1970s and 1980s, there was a new emphasis on the need to recognise children’s courts as part of the criminal justice system, and an emphasis on the features in common between children’s and criminal courts.⁵⁵ In New South Wales, a package of legislative reforms was introduced in 1987 to remove young offenders from the ambit of general child welfare legislation.⁵⁶

The development of diversion

2.26 Dissatisfaction with the welfare model of justice in the 1960s led to a second significant development: the diversion of matters away from “formal adjudication by a court to non-court procedures or programs”.⁵⁷

2.27 Unlike the approach taken in the USA, which was to divert young people to community-based treatment programs, the approach taken to diversion in Australia was to make use of warnings and counselling to keep young people out of court.⁵⁸ Beginning in the late 1950s, some Australian States had developed police cautioning and community aid panels.⁵⁹ In New South Wales, however, development of diversionary options was “marked by resolute ambivalence”.⁶⁰ There was some use of cautioning in the 1970s, though not on a systematic basis, as well as a proposal to adopt panels, but otherwise no structured diversionary program⁶¹ until an “expanded and properly formulated” police cautioning system was introduced in 1985.⁶²

2.28 In all Australian jurisdictions, the early aims of diversion were to avoid the potential stigmatisation of court proceedings and focus on the rehabilitation of the young offender. It was also hoped that diversion would result in: simpler and speedier resolution of matters; reduced costs; freeing up of court resources for more serious matters; reduced recidivism; and more meaningful participation in the justice process by young people and their families, eliciting a more positive response.⁶³

2.29 Writing in 1997 shortly before New South Wales passed the Young Offenders Act 1997 (NSW) (“YOA”), Wundersitz noted that it had been difficult to determine whether these aims had been achieved because many had not been evaluated.⁶⁴ The link between diversion and recidivism was, Wundersitz observed, ambiguous at best, with some American empirical studies showing reduced recidivism, others, increased recidivism, and others, no such link.⁶⁵ Also in the American context, both the link between diversion and reduced stigmatisation, and the labelling theory underpinning the belief that court processes stigmatise young people, have been questioned.⁶⁶

2.30 Wundersitz also noted that diversionary measures⁶⁷ have been criticised on the basis that they “net-widen”, bringing into the juvenile justice system young people who might otherwise have been ignored by police because of the trivial nature of their offences.⁶⁸ While the research she considers in support of this is American, there is research (either pre-YOA or in the early days of the YOA) in Australia reaching similar conclusions. This is despite the different approaches to diversion in the two countries.⁶⁹

2.31 A further criticism is that diversionary measures fail to protect a young person’s legal rights by requiring an admission of the allegations without legal advice, and because of possible pressure to make admissions to avoid court processes and criminal records.⁷⁰ It is also suggested that police may proceed with a matter where there is insufficient evidence to prosecute, because proof of the allegation is not required.⁷¹

2.32 Barry, and others, have argued that diversion tends to rely on white, middle-class concepts and methodology with the result that it disadvantages young offenders who are less educated, less articulate and who may distrust the good intentions of the state, the latter particularly applying to Aboriginal people.⁷² The Commission does not agree with the premise of this argument, but we do note the existence of evidence that white, middle-class young offenders are more likely to be diverted than non-white, disadvantaged ones. University of New South Wales research found that, in the first three years of the YOA’s operation, “Aboriginal young people were significantly more likely to have been taken to court (64% compared with 48% for non-Aboriginal young people) and half as likely to be cautioned (14% vs 28%)”. ⁷³

2.33 Lastly, diversion may be seen to be objectionable when it results in greater intrusion into a young person’s life than had he or she been dealt with by a court. However, prior to the use in Australia of conferencing in the 1990s, this had been a problem more associated with America, with its diversion to programs, than with Australia, with its use of warnings and cautions. Further, if diversion achieves its aims of engaging young offenders and their families more meaningfully and reducing recidivism, then the intrusiveness is arguably justified.

2.34 As Wundersitz points out, whether or not the justifications for diversion have been borne out, and outweigh its dangers, it is now a firmly entrenched feature of juvenile justice and given legislative expression in many jurisdictions, including in New South Wales in the YOA.⁷⁴ It also gives effect to Rule 11 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice,⁷⁵ which provides that “consideration shall be given, wherever appropriate, to dealing with juvenile offenders without resorting to formal trial by the competent authority”.

Diversion and the review of juvenile justice in NSW

2.35 The Youth Justice Coalition conducted, in 19990, a significant review of juvenile justice in New South Wales. Its report, Kids in Justice, was an extensive critique of juvenile justice culminating in a “blueprint for the 1990s”.⁷⁶ The 1992 Legislative Council Standing Committee on Social Issues report, Juvenile Justice in New South Wales, commented that the Kids in Justice report was “[t]he most significant single piece of research in the area in recent times”.⁷⁷ More importantly in the long term, the policy aims proposed in the Youth Justice Coalition’s report brought into the debate on juvenile justice an awareness of the movement towards the use of “restorative justice” in dealing with young offenders. Its fundamental approach was that juvenile justice policy should be focused on: reorientation towards prevention; decriminalisation; increased diversion; priority given to community-based programs; and detention as a last resort and for the minimum period possible.⁷⁸ This position was formulated in the light of the United Nations Convention on the Rights of the Child,⁷⁹ and other international human rights instruments affecting juveniles.⁸⁰ Many of the report’s recommendations were implemented, including establishing the Department of Juvenile Justice⁸¹ and the Juvenile Justice Advisory Council. ⁸²

2.36 The first task of the Juvenile Justice Advisory Council was to review all legislation, practices and policies governing juvenile justice in New South Wales. The Council published its report in 1993⁸³ in which it “emphasised the need to instigate crime prevention strategies for keeping children and young people out of the processes of juvenile justice”.⁸⁴

Community Aid Panels

2.37 During the late 1980s and early 1990s in New South Wales, Community Aid Panels (“CAPs”), a police/magistrate initiative, were utilised in juvenile justice. The Wyong magistrate and a police officer stationed at Wyong introduced the first CAP to Wyong Local Court in 1987 to involve the community in the criminal justice process.⁸⁵ CAPs in Parramatta followed in the late 1980s. The process was not used as a means of trial diversion, but rather, as an opportunity for mitigation prior to sentencing. At the same time, it promoted the young offender’s rehabilitation and enabled him or her to make restitution to the community.

2.38 A young offender who consented to a referral and pleaded guilty to, generally, a first or minor offence could be referred to a CAP by the magistrate prior to sentencing. The magistrate then adjourned the case for approximately three months while the young offender attended the CAP and, with the panel members,⁸⁶ arrived at a plan to “undertake some form of community work, or educative or rehabilitative program”.⁸⁷ The court sentenced the young offender after assessment of his or her involvement in the panel process, community work and/or a program.

2.39 The program was not without its critics and there were some concerns about “theoretical, ideological and organisational issues arising from the impact of CAPs on young offenders”.⁸⁸ The panels were unregulated and occasionally inappropriate plans devised.⁸⁹ Despite these concerns, Juvenile Justice Advisory Council’s 1993 Juvenile Justice Green Paper recommended their continued use as an alternative to formal court proceedings.⁹⁰ By 1996, 75 CAPs were operating at various centres throughout New South Wales.⁹¹

2.40 CAPs were to be phased out for young offenders after the introduction of the YOA in April 1998, although it was subsequently discovered that some magistrates continued to refer children to the panels.⁹² Accordingly, in July 2002, the Chief Magistrate gave a ruling against their continued use.⁹³

RESTORATIVE JUSTICE

2.41 The early aims of diversion evolved into more complex aims of restoration, reconciliation, reintegration and healing, and the development of “restorative justice” theory. Dissatisfaction with the welfare and justice models of responding to juvenile crime, with their focus on rehabilitation and punishment respectively, shifted the focus to the role the victim should play in the justice process.⁹⁴ The restorative justice model is founded on the belief that “criminal behaviour is a conflict between individuals and that, when a crime is committed, it is the victim who is harmed rather than the state”.⁹⁵ Restorative justice has been described as “a collaborative and peacemaking approach to conflict resolution”.⁹⁶

2.42 A frequently cited description of restorative justice is that it is “a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.”⁹⁷ Its aim is to “promote accountability, healing and justice”.⁹⁸ In the context of dealing with young offenders, restorative justice has the following characteristics:

Classic restorative justice models use informal processes of negotiation and mediation, involving the offender, his or her family or supporters and where possible, the victim. The aim is to resolve the offences in a constructive way for all parties. Such resolution will encourage the young person to take responsibility, will include reparation in some form, and will assist in addressing the causes of offending.⁹⁹

2.43 Restorative justice is epitomised in conferencing.¹⁰⁰ Family group conferencing originated in New Zealand, although both Australia and New Zealand have been described as “laboratories of experimentation” in conferencing.¹⁰¹ The New Zealand model, given a legislative framework in the Children, Young Persons and Their Families Act 1989 (NZ) (“CYPFA”), represented a “distinct departure” from the justice model and “sought specifically to avoid the pitfalls of justice and welfare models”.¹⁰²

2.44 As the title suggests, the CYPFA involves the families of young people as much as possible,¹⁰³ putting “family support and victim satisfaction at the centre, rather than the perimeter, of reactions to offending by young people”.¹⁰⁴ The over-arching principles of the CYPFA,¹⁰⁵ contained in s 5, include: participation of the family in decision-making; maintaining and strengthening family bonds; and obtaining the support of the family and young person for the exercise of powers under the Act.¹⁰⁶ Hassall observes that the underlying philosophy of the CYPFA embraces “family responsibility, children’s rights, (including the right to due process), cultural acknowledgment and partnership between the state and the community”.¹⁰⁷

The Wagga scheme and “reintegrative shaming”

2.45 From 1991 to 1994, a police-run “effective cautioning” scheme¹⁰⁸ operated in Wagga Wagga.¹⁰⁹ This was the first example in Australia of family group conferencing.¹¹⁰ The CYPFA had a direct influence on the Wagga scheme through observation by members of the Policy and Planning Branch of the NSW Police Service.¹¹¹ The formal objectives of the scheme were:

(1) to ensure that the young offender understands the seriousness of his/her offence; (2) to minimise the opportunity of the young person re- offending; (3) to provide the young offenders with an opportunity to accept responsibility for his/her offence; (4) to ensure that family and significant others are made accountable; (5) to provide the victim(s) with some input into the cautioning process; (6) to improve the opportunity for victim restitution or compensation; (7) to provide police with an opportunity to contribute in a significant and satisfying way to the processing of young offenders.¹¹²

2.47 Braithwaite’s theory of reintegrative shaming identifies the factors that influence the choice to offend or not to offend and the conditions and processes that lead to successful shaming.¹¹⁵ The theory:

assumes that a person’s immediate decisions are directly influenced by informal processes of social control constituted by the interaction between external social disapproval and the internal constraints of conscience.¹¹⁶

2.49 Braithwaite maintains that without any process of reconciliation, traditional criminal justice sanctions simply operate to shame offenders publicly, thereby reinforcing the very social alienation that contributed to their offending in the first place. He argues that reintegrative shaming, unlike stigmatisation (“disintegrative shaming”), is positive because it is not open-ended but ends, after a finite period, in forgiveness; and because bonds of love or respect are maintained.¹¹⁷

2.50 The aim of the Wagga effective cautioning scheme was to include reintegrative shaming in a way that was positive for the offender by placing it within a context of reconciliation.¹¹⁸ The scheme sought to confront young offenders with the real impact of their offending on victims, in an out-of-court context and in a process of discussion between offender, victim and key family and community representatives, led and guided by the police officer. It emphasised restitution and reparation.

2.51 Although the scheme had been responsible for a substantial reduction in the number of matters referred to court,¹¹⁹ it was replaced in 1994 by a pilot scheme of Community Youth Conferencing introduced by the Attorney General’s Department and organised and run by local Community Justice Centres.¹²⁰ Despite being discontinued, the Wagga scheme “had an enormous influence on the development and location of conferencing in other parts of Australia”.¹²¹ It has been the subject of extensive study by criminal justice professionals throughout the world and has provided a blueprint for similar programs in a wide range of jurisdictions.¹²²

Community Youth Conferences

2.52 As noted above, a pilot scheme of Community Youth Conferencing (“CYC”) replaced the Wagga scheme in 1994.¹²³ The CYC pilot, together with revised training on informal and formal police cautioning, was established partly in response to the Government’s 1994 White Paper on Juvenile Justice.¹²⁴ The Juvenile Justice White Paper recommended “the establishment of a formal, integrated, consistent, accountable and co-ordinated framework to be known as Community Youth Conferencing”.¹²⁵ The CYC pilot was loosely based on the New Zealand Family Group Conference model and on the Wagga scheme. It was trialled in the six locations in which the Wagga scheme had operated and was run by Community Justice Centres using a mediation process. Community mediation was a court-alternative process available to young people, subsequent to police cautioning, but prior to court proceedings. It required voluntary participation by young offenders and a willingness to refer by police.

2.53 An evaluation of the CYC pilot in 1996 by Crown Prosecutor, Patrick Power found that police reluctance to refer and the lack of a co-ordinating statutory framework limited its success.¹²⁶ Nevertheless, the evaluation concluded that conferencing was an effective alternative to the traditional criminal justice process for young offenders. It recommended that legislation was needed to govern diversionary schemes for young offenders.¹²⁷

THE YOUNG OFFENDERS ACT 1997 (NSW)

2.54 As a result of Power’s evaluation of the CYC scheme, the government set up a working party, comprising representatives from the NSW Attorney General’s Department, Department of Juvenile Justice, NSW Police, Ministry for Police and Department of Corrective Services, to explore the implementation of a conferencing scheme for young offenders and to improve police cautioning.¹²⁸ The Working Party decided that the New Zealand model was the most appropriate model of conferencing for young people in New South Wales.¹²⁹

2.55 In developing a conferencing scheme, the Working Party:

took into account the need for a system which is formal and integrated and which is consistent, accountable and co-ordinated. Underlying the proposed scheme is the philosophy that young people should be held accountable for their offending behaviour; families and victims should be involved in making decisions about young people’s offending behaviour and the main focus of the conference should be to put right the wrong dome to the victim. In addition, conferences should aim to deal with young people in a way that acknowledges their needs and that will give them the opportunity to develop in responsible, beneficial and socially acceptable ways.¹³⁰

2.57 The consultation process was extensive,¹³³ complemented by observation of a range of diversionary schemes, especially the New Zealand model on which the YOA was largely based. Others examined were the Wagga scheme, the South Australian scheme of police cautions and family conferences under the Young Offenders Act 1993 (SA), and CYCs.¹³⁴ The conferencing process as it had operated under the Wagga scheme was rejected in favour of the New Zealand model of non-police run conferencing. It was also decided that conferencing should not be used for minor offences, which should be dealt with by way of warning or caution. In addition, it was decided not to involve victims in the cautioning process, as the Wagga scheme had done. Where the Young Offenders Bill differed from the New Zealand model was in not adopting a mandatory referral system in relation to conferencing.

2.58 The Act that resulted established “a scheme that provides an alternative process to court proceedings for dealing with children who commit certain offences through the use of youth justice conferences, cautions and warnings”.¹³⁵ The YOA also states as its objects that the purpose of the scheme is to provide “an efficient and direct response” to offending¹³⁶ and to use conferencing to enable a community-based response; emphasise restitution and taking responsibility; and meet the needs of victims and offenders.¹³⁷

2.59 The principles that are to guide the operation of the YOA are that:

• the least restrictive form of sanction is to be applied;
• children who are alleged to have committed an offence are entitled to be informed about their right to obtain legal advice and to have an opportunity to obtain that advice;
• criminal proceedings are not to be instituted if there is an alternative and appropriate means of dealing with the matter;
• criminal proceedings are not to be instituted solely to provide any welfare assistance or services to the child or the child’s family;
• where appropriate, children who are alleged to have committed an offence should be dealt with in their communities in order to assist their reintegration and to sustain family and community ties;
• parents are to be recognised and included in justice processes, including being recognised as being primarily responsible for the development of children; and
• victims are entitled to receive information about their potential involvement in, and the progress of, action taken under the Act.¹³⁸

2.61 The YOA also provided for the establishment of the Youth Justice Advisory Committee, (“YJAC”) consisting of members from various agencies, including the Juvenile Justice Advisory Council, Juvenile Crime Prevention Advisory Committee, the Attorney General’s Department, Department of Juvenile Justice, the police and the Office of Children and Young Persons in the Cabinet Office, as well as a representative of victims.¹⁴⁰ Many of the initial members of YJAC had been on the Working Party that developed the YOA. The role of YJAC is to advise the Attorney General and the Director General of Juvenile Justice on: the making of regulations; the preparation of guidelines for conferences; selection and training of conference convenors; and the review and monitoring of the YOA.¹⁴¹ The setting up of a multi-agency body like YJAC, as well as the roles given it, helped to ensure successful implementation of the YOA.¹⁴² This was also promoted by the setting up, soon after the introduction of the YOA, of the Youth Justice Conferencing Directorate as an independent unit within the Department of Juvenile Justice, to take responsibility for the operation of youth justice conferences.

2.62 The Commission has described the process leading to the enactment of the YOA to demonstrate the extent to which it is underpinned by restorative justice theory and to stress the importance of the influences shaping its policy objectives - objectives the Commission wholeheartedly endorses.

2.63 Chapter 3 continues with an examination of the YOA in the context of the modern approach to juvenile justice and the role of police discretion in the juvenile justice system.

1. In the review of developments from the early 19th century to the 1980s, the Commission has relied to a large extent on John Seymour’s excellent account contained in the first three chapters of J Seymour, Dealing With Young Offenders (Law Book Company, 1988), in which he gives an extensive and detailed description and analysis of the historical background to juvenile justice.

2. See C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia (Oxford University Press, Melbourne, 2002) at 8. According to American academic, Thomas Bernard, one of the first uses of the term “juvenile delinquency” was in the Report of the Committee for Investigating the Causes of the Alarming Increase of Juvenile Delinquency in the Metropolis, a report published in London in 1816: T J Bernard, The Cycle of Juvenile Justice (Oxford University Press, New York, 1992) at 42.

3. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 8.

4. T J Bernard, The Cycle of Juvenile Justice at 8 and 43-48.

5. C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 9.

6. Twenty-three per cent of “offence[s] proven” in the Children’s Courts were for theft and related offences, with a further 6% being for property damage: New South Wales Bureau of Crime Statistics and Research, New South Wales Criminal Courts Statistics 2003 (New South Wales Bureau of Crime Statistics and Research, 2004), Table 2.1 at 59-60. It is also interesting to note that 9% of “offence[s] proven” were for public order offences: Table 2.1 at 60.

7. See Chapter 3.

8. An Act for the more speedy trial and punishment of juvenile offenders of 1850 (NSW) (14 Vict No. 2). J Seymour, Dealing With Young Offenders at 27. The defendant could choose a summary trial, but it was not mandatory.

9. Seymour at 34.

10. Seymour at 31.

11. Seymour at 27.

12. Seymour at 27.

13. Seymour at 34-35.

14. For example, Criminal Law Amendment Act of 1883 (NSW). This Act only applied to young males.

15. J Seymour, Dealing With Young Offenders at 34.

16. Seymour at 35. Seymour submits that this analysis of the effect of the legislative changes is consistent with Anthony Platt’s thesis of the “invention of delinquency”, developed in A M Platt, The Child Savers: The Invention of Delinquency (2nd edition, University of Chicago Press, 1977). It has been argued that Platt’s views “provided the turning point for welfare history by ushering in a new orthodoxy commonly called the ‘social control’ perspective”. This perspective “was based on the perceived failure of reformist legislation to significantly alter the distribution of wealth and power in society. Social policy was viewed as one element in a number of social, economic, political and ideological controls whereby inequalities were perpetuated or enhanced”: R Kerr, “Writing welfare history: An historiographical jigsaw?” (Proceedings, Western Australian Institute for Educational Research Forum, 1996) http://education.curtin.edu.au/waier/forums/1996/kerr.html; see also J Mcnicol, The Movement for Family Allowances 1918-1945: A Study in Social Policy Development (Heinemann, London, 1980).

17. Seymour at 8-10.

18. Seymour at 10-11.

19. Seymour at 11: “By the end of the 18th century it had become common for capital sentences passed on juveniles to be commuted to transportation”, citing L Radzinowicz and R Hood, A History of English Criminal Law and its Administration from 1750: Vol 5 – The Emergence of Penal Policy (Stevens and Sons Ltd, London, 1986) at 138.

20. These were barracks to house (initially) adult convicts, who cared for horses, carts and bullocks. Male juvenile convicts were admitted the following year.

21. Seymour at 12-13. The boys in Carters’ Barracks were government apprentices and trained to work as tradesmen, such as blacksmiths, carpenters, painters and shoemakers. The boys were kept in the Barracks for up to three years and assigned to work as servants, for a term up to seven years, on their release. However, after 1834-1835, Carters’ Barracks was no longer used and convict boys were assigned directly on arrival in Australia. Its demise was most likely attributable to institutional failings; the harsh regime was criticised, but more particularly, the grouping together of young criminals was thought to have mutual harmful influences. Seymour comments that this implies “a very early recognition of the pressures … which can operate in institutions for young offenders”: at 13.

22. Seymour at 13.

23. Seymour at 13-14. A further early example of the use of apprenticeships to deal with young offenders is also discussed by Seymour (at 14): between 1842 and 1852, a scheme was instituted to send boys from Britain’s Parkhurst Prison to Western Australia, Van Dieman’s Land and New Zealand. (Parkhurst was designed especially for boys and was built on the Isle of Wight.)

24. Seymour at 14, referring to R Hood and L Radzinowicz, A History of English Criminal Law and its Administration from 1750, Volume 5: The Emergence of Penal Policy at 140.

25. J Seymour, Dealing With Young Offenders at 14. However, as Seymour highlights (at 14), industrial schools and reformatories in Australia were not modelled on Carters’ Barracks or Point Puer. Rather, they were modelled on English examples. See below for further discussion of industrial and reformatory schools in Australia.

26. Tasmania was the first State to pass legislation with the short-lived The Industrial Schools Act (27 Vict No 24) in 1863, which was replaced by The Industrial Schools Act 1867 and The Training Schools Act 1867. Next, Victoria passed The Neglected and Criminal Children’s Act 1864; Queensland passed the Industrial and Reformatory Schools Act 1865; New South Wales passed the Industrial Schools Act 1866 and the Reformatory Schools Act 1866; South Australia passed The Destitute Persons Relief Act 1866 and The Destitute Persons Relief and Industrial and Reformatory Schools Act 1872; and Western Australia passed The Industrial Schools Act 1874: see Seymour at 37-41 and Appendix 1.

27. See Seymour at 41-45. Seymour discusses the legislation in full at 48-52.

28. Pursuant to the Reformatory Schools Act 1866, an offence had to be punishable by imprisonment of 14 days or more before the courts were able to refer a child offender to a reformatory.

29. In New South Wales, apprenticeship was available for those dealt with under the Industrial Schools Act 1866. There was no similar provision under the Reformatory Schools Act 1866: Seymour at 50.

30. Seymour at 51.

31. See Seymour at 15-21 for a discussion of asylums and orphan schools in Australia in the early 19^th century.

32. Seymour at 3.

33. Seymour at 63.

34. The oscillation between welfare models of justice and a “justice” approach to juvenile offending is discussed below at para 2.23-2.24.

35. Seymour at 64. See also the discussion of asylums and orphan schools at 15-21.

36. Seymour at 64.

37. Seymour at 68.

38. K Polk, “The search for alternatives to coercive justice” in F Gale, N Naffine and J Wundersitz (ed) Juvenile Justice: Debating the Issues (Allen & Unwin, Sydney, 1993) at 110.

39. J Seymour, Dealing With Young Offenders at 27

40. See para 2.9 above.

41. K Polk, “The search for alternatives to coercive justice” at 110.

42. Acts establishing such courts generally gave them jurisdiction over both criminal and welfare matters, so that these concerns were held to be paramount in respect of neglected children: C Cunneen and R White, Juvenile Justice: Youth and Crime in Australia at 19.

43. J Seymour, Dealing With Young Offenders at 71.

44. While New South Wales was the first jurisdiction to technically pass a children’s court statute, there had been piecemeal reform in South Australia prior to the enactment of the New South Wales legislation. See Seymour at 76-87 for a discussion of the first statutes establishing children’s courts in Australia.

45. Neglected Children and Juvenile Offenders Act 1905 (NSW) s 9.

46. Probation was regarded as one of the foundations on which the new children’s courts were built, yet, paradoxically, it was a notion that developed quite separately and independently: J Seymour, Dealing With Young Offenders at 88. The Neglected Children and Juvenile Offenders Act 1905 (NSW) allowed release on probation but without clear detail; it made no reference to supervision nor to the appointment of probation officers. For a general discussion of how probation was included in the various State Acts establishing Children’s Courts, see Seymour at 90-92.

47. The welfare model had been underpinned by the positivist school of criminology. This was the acceptance, in the late 19th and early 20th centuries, that the causes of criminal behaviour could be understood and predicted, and that scientific method could be applied to identifying the factors that led to criminal behaviour: I O’Connor, “Models of juvenile justice” in A Borowski and I O’Connor (ed), Juvenile Crime, Justice & Corrections (Addison Wesley Longman Australia Pty Ltd, Melbourne, 1997) at 231. The welfare model emphasised the needs of the young person over his or her behaviour, looked at the behaviour in the context of social and economic factors outside his or her control, and focused on rehabilitation rather than punishment: New South Wales, Attorney General’s Department, Report of the New South Wales Working Party on Family Group Conferencing and the Juvenile Justice System (Discussion Paper, 1996) (“Family Group Conferencing and Juvenile Justice System Report”) at 2.

48. Seymour warns against the dangers of using this term, which was coined by analysts of 19th century reforms in the United States, for fear of obscuring differences in developments in juvenile justice systems in the two countries: Seymour at 65-66.

49. There was some concern about indeterminate sentences and disproportionate sentences, which were expressions of the court’s paternal approach to the young offender, focusing more on the needs of the child and less on his or her culpability. Others, on the other hand, questioned the leniency shown by the courts: Seymour at 119-121, 131-136.

50. J Seymour, Dealing With Young Offenders at 136.

51. O’Connor notes that the juvenile justice literature since the mid 1960s has been dominated by the failure and injustices of the welfare model, detailing the harm suffered by children at the hands of child welfare bureaucracies: I O’Connor, “Models of juvenile justice” at 234.

52. J Wundersitz, “Pre-court diversion: The Australian experience” in A Borowski and I O’Connor (ed), Juvenile Crime, Justice & Corrections at 271. Critically, assumptions about the causes of delinquency, and the system’s capacity to treat those causes, were being questioned: J Seymour, Dealing With Young Offenders at 163-164.

53 There was concern with indeterminate sentences, not proportionate to the offence, for the purposes of rehabilitation.

54. It was suggested that juveniles could end up spending longer in custody than adults, with little effect on the rate of recidivism: Western Australia, Department for Community Services, Report on the Review of Departmental Juvenile Justice Systems (1986) at 21-25. See also I O’Connor, “Models of juvenile justice” at 234.

55. From their establishment, children’s courts had sought to combine the characteristics of both criminal courts and specialist welfare tribunals: J Seymour, Dealing With Young Offenders at 162.

56. Children (Care and Protection) Act 1987 (NSW); Children (Community Service Orders) Act 1987 (NSW); Children’s Court Act 1987 (NSW); Children (Criminal Proceedings) Act 1987 (NSW); and Children (Detention Centres) Act 1987 (NSW).

57. This is Wundersitz’s definintion of “pre-court diversion” (at 270). Wundersitz further notes (at 271) that the move at this time towards pre-court diversion embodied the interrelated concepts of diversion, deinstitutionalisation, decarceration and decriminalisation: J Wundersitz, “Pre-court diversion: The Australian experience”.

58. Wundersitz at 272.

59. The most important of these were the police cautioning schemes developed in Victoria in 1959 and Queensland in 1963 (Queensland established Juvenile Aid Bureaux, which were responsible for warning and counselling offenders); and the Children’s Panels established in Western Australia in 1964 and South Australia in 1972 (Juvenile Courts Act 1971 (SA)). Both States became dissatisfied with the Children’s Panels and they were disbanded by the late 1980s: J Wundersitz, “Pre-court diversion: The Australian experience” at 274-275. Seymour argues that, while informal handling of some juvenile cases had always been present in the Australian system, this had been a practice that was tolerated rather than an official, promoted one: J Seymour, Dealing With Young Offenders at 146-147.

60. Seymour at 161.

61. The Community Welfare Act 1982 (NSW) established screening panels, whose function was to determine whether action should be taken against a child and, if so, whether the child should be prosecuted, cautioned or required to take part in a conference. However, the relevant parts of the Act were never brought into operation: Seymour at 161-162.

62. J Seymour, Dealing With Young Offenders at 162. The NSW Police Commissioner’s Instructions set out procedures and guidelines for warnings and cautions. Wundersitz notes (at 273-276) that, even after it was formally adopted in 1985, the police cautioning system failed to attract any real support from either the police or the government of the day. As such, its use was comparatively limited. Between 1980 and 1985, the rate of young offenders cautioned was, on average, only 6%. In the years immediately following the introduction of the new scheme, the rate of young offenders cautioned increased to 21%. However, by 1990-91, the rate had dropped down again to 12%. In contrast, the rate of young offenders cautioned in Queensland throughout the 1980s remained just under 70%. Similarly, the rate of cautioning in Victoria over the same period averaged 61%: J Wundersitz, “Pre-court diversion: The Australian experience”.

63. Wundersitz at 275.

64. Wundersitz at 275.

65. Wundersitz at 277.

66. Wundersitz at 277-278. As with the relationship between recidivism and diversion, there is a lack of evaluation of the relationship between stigmatisation and diversion in the Australian context.

67. Again, it needs to be remembered that, as Wundersitz is writing in 1997, diversionary measures under the YOA are not under the spotlight.

68. Wundersitz at 278.

69. See Wundersitz at 278-279.

70. Wundersitz at 279. Protection of a young person’s legal rights under the YOA, and in particular access to legal advice, is discussed in detail in Chapter 5.

71. Wundersitz at 279.

72. M Barry, “Informal processing: The South Australian experience” in F Gale, N Naffine and J Wundersitz (ed) Juvenile Justice: Debating the Issues at 116, cited in J Wundersitz “Pre-court diversion: The Australian experience” at 280. Wundersitz (at 280) cites a South Australian study that found that “Aborigines were consistently under-represented in the number of youths being referred to Aid Panels but over-represented in the numbers directed to court. The difference in referral was traced to the operation of both race and class bias”. For further discussion of this study see F Gale, B Bailey-Harris and J Wundersitz, Aboriginal Youth and the Criminal Justice System: The Injustice of Justice? (Cambridge University Press, Cambridge, 1990).

73. J Chan, S Doran, E Maloney and N Petkoska, with J Bargen, G Luke and G Clancy Reshaping Juvenile Justice: A Study of the Young Offenders Act 1987 (Final Report, School of Social Science and Policy, University of New South Wales, 2003) at 166. “Note, however, that Aboriginal and non-Aboriginal young people were given warnings or referred to conferences at approximately the same rates (around 20% and just over 3% respectively)”: at 166.

74. J Wundersitz, “Pre-court diversion: The Australian experience” at 280.

75. Adopted by General Assembly Resolution 40/33 of 29 November 1985 (the “Beijing Rules”).

76. Youth Justice Coalition (NSW), Kids in Justice: A Blueprint for the 1990s (Full Report of the Youth Justice Project, Law Foundation and Youth Justice Coalition, Sydney, 1990). See also A Pisarski, Nobody Listens: The Experience of Contact between Young People and Police (Youth Justice Coalition NSW, Sydney, 1994).

77. New South Wales, Legislative Council, Standing Committee on Social Issues, Juvenile Justice in New South Wales (Report No 4, 1992) at 18. Comments on the Kids in Justice report’s recommendations can be found throughout the Committee’s report.

78. Kids in Justice: A Blueprint for the 1990s at 10. Other key recommendations dealt with matters such as: culturally and ethnically appropriate official responses to young offenders; family involvement; the training of juvenile justice personnel; and the establishment of a separate department of juvenile justice and a ministerial advisory committee (ultimately the Juvenile Justice Advisory Council), and of a juvenile crime prevention section (and community advisory body) in the Attorney General’s Department.

79. United Nations Convention on the Rights of the Child, opened for signature on 20 November 1989 by General Assembly resolution 44/25, entered into force 2 September 1990, in accordance with article 49, Art 37(b). Australia ratified the instrument on 17 December 1990 and it came into effect for Australia on 16 January 1991. On 22 December 1992, the Attorney-General made the Convention an international instrument within the terms of the Human Rights and Equal Opportunity Act 1986 (Cth) pursuant to s 47(1). “This does not make the Convention part of Australian domestic law, however, breaches can be reported to the Commission”: Australia, the Commonwealth Parliament Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child (17th Report, CanPrint Communication Pty Ltd, Canberra, 1998) at 11.

80. See United Nations Standard Minimum Rules for the Administration of Justice (“Beijing Rules”), Rules 13 and 19.

81. It was originally established as the Office of Juvenile Justice in the Department of Corrective Services but, after lobbying, was made independent of Corrective Services and reported directly to the Minister for Justice: J Bargen, “Going to court CAP in hand” (1992) 4(2) Current Issues in Criminal Justice 117 at 118.

82. There was, however, some criticism that there was only limited implementation of the report’s policy aims: T Anderson, S Campbell and S Turner, Youth Street Rights – A Policy & Legislation Review (University of Technology Sydney’s Community Law and Legal Research Centre and the Youth Justice Coalition Sydney, 1999) at 20: “The Youth Street Rights project believes that some of these policies have in fact been considered during the intervening period, some of them have been compromised and some have been ignored”.

83. Juvenile Justice Advisory Council of NSW, Future Directions for Juvenile Justice in New South Wales (Report, 1993).

84. J Chan, J Bargen, G Luke and G Clancey, “Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997” (2004) 28 Criminal Law Journal 72 at 76.

85. J Bargen, “Going to court CAP in hand” at 120.

86. Unlike youth justice conferencing, victims did not participate in the panel.

87. J Bargen, “Going to court CAP in hand” at 121.

88. Bargen at 125.

89. One anecdote reports a young Aboriginal person being required to sweep pavements wearing a t-shirt printed with the slogan “I’m a thief”.

90. Juvenile Justice Advisory Council of NSW, Future Directions for Juvenile Justice in New South Wales. The Council also found a need to develop effective and regulated intervention for young offenders that empowered the victim.

91. Family Group Conferencing and Juvenile Justice System Report at 6.

92. CAPs being for first and minor offences, it was inappropriate to bring young offenders into the court processes who could have been dealt with by the diversionary options of the YOA.

93. Chief Magistrate’s Circular No 398 (issued 15 July 2002).

94. This was given additional impetus by the growing political influence of victim lobby groups: J Wundersitz, “Pre-court diversion: The Australian experience” at 281.

95. Wundersitz at 281.

96. New Zealand, Restorative Justice Network, Restorative Justice in New Zealand: Best Practice (Ministry of Justice, Wellington, 2004) at 23.

97. T F Marshall, Restorative Justice: An Overview (United Kingdom, Home Office Research Development and Statistics Directorate, 1996) at 5.

98. New Zealand, Restorative Justice Network, Restorative Justice in New Zealand: Best Practice at 23.

99. JUSTICE, Restoring Youth Justice: New Directions in Domestic and International Law and Practice (2000) at 13. JUSTICE is the British section of the International Commission of Jurists.

100. See Chapter 7, which deals with youth justice conferencing under the Young Offenders Act 1997 (NSW).

101. K Daly, “Conferencing in Australia and New Zealand: variations, research findings and prospects” in A Morris and G Maxwell (ed), Restorative Justice for Juveniles: Conferencing, Mediation and Circles (Hart Publishing, Oregon, 2001), Ch 4, at 59 and 63.

102. I O’Connor, “Models of juvenile justice” at 243.

103. In the case of Maori young people, this includes their recognised kin networks, the whanau, hapu, and iwi. The situating of family group conferencing within whanaungatanga, or kinship relationships, aims to ensure that the process is embedded in the community and to avoid the potential limitations of conferencing for indigenous young offenders referred to in Chapter 7 at 7.45 and 7.48-7.49.

104. J Chan, J Bargen, G Luke and G Clancey, “Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997” at 76.

105. The principles contained in s 7 of the Young Offenders Act 1997 (NSW) were modelled on those in the Children, Young Persons and Their Families Act 1989 (NZ). The first version of the Children (Criminal Proceedings) Act 1987 (NSW) was drafted at or around the same time as the Children, Young Persons and Their Families Act 1989 (NZ) so it is possible that there were exchanges of influences in the formulation of the principles in these two Acts.

106. Other principles are: taking into account the effect of decisions on a young person’s welfare and family stability; considering the young person’s wishes; and implementing decisions within an appropriate time-frame.

107. I Hassall, “Origin and development of Family Group Conferences” in J Hudson, A Morris, G Maxwell and B Galaway (ed), Family Group Conferences: Perspectives on Policy and Practice (Federation Press, Sydney, 1996) at 19.

108. Terrence O’Connell referred to the process as “effective cautioning”: D Moore and L Forsythe, with T O’Connell, A New Approach to Juvenile Justice: An Evaluation of Family Conferencing in Wagga Wagga (Charles Sturt University, Wagga Wagga, 1995) at 11.

109. See D Moore, “Facing the consequences” in L Atkinson and S Gerull (ed), National Conference on Juvenile Justice: Conference Proceedings No. 22 (Australian Institute of Criminology, Canberra, 1993) at 203-220.

110. See D Moore and L Forsythe, with T O’Connell, A New Approach to Juvenile Justice: An Evaluation of Family Conferencing in Wagga Wagga.

111. K Daly, “Conferencing in Australia and New Zealand: variations, research findings and prospects” at 59 and 63.

112. B Coates, N Couling, K Dymond and J Jamieson, Report on Support for Young Offenders Who Have Been Subject to the Wagga Wagga Police Cautioning Process (Charles Sturt University, Wagga Wagga, 1992).

113. J Braithwaite, Crime, Shame and Reintegration (Cambridge University Press, Cambridge, 1989). For further discussion of this theory see J Braithwaite and P Pettit, Not Just Desserts: A Republican Theory of Criminal Justice (Clarendon Press, Oxford, 1990) and K Daly and H Hayes, Restorative Justice and Conferencing in Australia (Australian Institute of Criminology, Trends & Issues in Crime and Criminal Justice No 186, Canberra, 2001) at 2. Reintegrative shaming theories preceded restorative justice theories, the latter developing from an unease with an emphasis on shaming. Braithwaite’s approach is now only one of several models of restorative justice. There are other forms that do not incorporate reintegrative shaming. While Braithwaite’s theory has been highly influential in Australia and overseas, it is not without its critics: see, for example, R Watts, “John Braithwaite and Crime, Shame and Reintegration: some reflections on theory and criminology” (1996) 29 Australian and New Zealand Journal of Criminology 121, especially at 122 where Watts criticises the acclaim given to Braithwaite’s work as “a sign both of intellectual desperation and of a pervasive nostalgia for a return to ‘community’”.

114. I O’Connor, “Models of juvenile justice” at 243.

115. O’Connor at 244.

116. O’Connor at 244.

117. J Braithwaite, Crime, Shame and Reintegration at 100-101.

118. JUSTICE, Restoring Youth Justice: New Directions in Domestic and International Law and Practice (London, 2000) at 38. “Although the concept of reintegrative shaming is thought to be the theory underpinning restorative justice, the two should not be conflated. In general, reintegrative shaming focuses on how a conference may affect an offender. Restorative justice assumes a broader set of interactions between an offender and victim (and their supporters) where recognition of the “other” is expected to encourage a more empathic orientation in the offender and a more sympathetic orientation by the victim to the offender’s situation. This distinction is important in understanding the different emphases taken in research on conferencing.”: K Daly and H Hayes, “Youth Justice Conferencing and Re-Offending” (2003) 20(4) Justice Quarterly 725 at 729.

119. D Moore and L Forsythe, with T O’Connell, A New Approach to Juvenile Justice: An Evaluation of Family Conferencing in Wagga Wagga, Chapter 5 at 28. See also D Moore, “Evaluating Family Group Conferences – some early findings from Wagga Wagga” in D Biles and S McKillop (ed) Criminal Justice Planning and Co-Ordination (Australian Institute of Criminology, Canberra, 1994).

120. See J Bargen, “Kids, cops, courts, conferencing and children’s rights – a note on perspectives” in M Jones and L Basser Marks (ed), Children on the Agenda – The Rights of Australia’s Children (Prospect Publishing, Sydney, 2001) at 220.

121. Bargen at 220.

122. The Wagga Wagga model was adopted to varying extents in juvenile justice in Queensland, the ACT and Tasmania. For a discussion of the ACT model see D Moore and J McDonald, “Achieving the ‘good community’: A local police initiative and its wider ramifications” in K M Hazlehurst (ed), Perceptions of Justice: Issues in Indigenous and Community Empowerment, Australia and New Zealand (Central University Press, Queensland, 1995) at 142. A variant, known as Community Accountability Conferences, operated in schools in Queensland and New South Wales as an option for dealing with harmful behaviour (by students) within the school: see D Moore, “Pride, shame and empathy in peer relations: a case study with implications for theory in practice, in education and criminal justice”, in K Oxenberry, K Rigby and P Slee (ed), Children’s Peer Relations: Co-Operation and Conflict: Conference Proceedings (Institute of Social Research, University of South Australia, 1994) at 212-23.

123. K Daly, “Conferencing in Australia and New Zealand: variations, research findings and prospects” at 69.

124. New South Wales, Department of Juvenile Justice, Breaking the Crime Cycle: New Directions for Juvenile Justice in New South Wales (White Paper, 1994)

125. Family Group Conferencing and Juvenile Justice System Report at iii.

126. P Power, An Evaluation of Community Youth Conferencing in New South Wales (Report to the NSW Attorney General, unpublished, 1996).

127. Power at 209.

128. Family Group Conferencing and Juvenile Justice System Report at iii.

129. Family Group Conferencing and Juvenile Justice System Report at iv.

130. Family Group Conferencing and Juvenile Justice System Report at iv.

131. Family Group Conferencing and Juvenile Justice System Report at vi.

132. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 18 June 1997, Speech of the Hon I Cohen at 10492 on the Young Offenders Bill 1997.

133. Over 50 submissions were received to the Working Party’s report. The youth sector and other community groups participated in the consultation process. There was initially strong criticism and objections to the conferencing process, including from sections of the police, victims’ groups and some magistrates. However, there was commitment by, and co-operation between, key government and criminal justice agencies. When the Young Offenders Bill was introduced into Parliament, there was support from all sides of politics: J Chan, J Bargen, G Luke and G Clancey, “Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997” at 78.

134. J Bargen, “The Young Offenders Act 1997: Is the diversionary scheme being diverted?” (2000) 12(3) Judicial Officers Bulletin 17 at 17.

135. Young Offenders Act 1997 (NSW) s 3(a). These diversionary responses to offending by young people are dealt with in depth in Chapters 6 and 7.

136. Young Offenders Act 1997 (NSW) s 3(b).

137. Young Offenders Act 1997 (NSW) s 3(c).

138. Young Offenders Act 1997 (NSW) s 7.

139. J Chan, J Bargen, G Luke and G Clancey, “Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997” at 79.

140. Young Offenders Act 1997 (NSW) s 70(1).

141. Young Offenders Act 1997 (NSW) s 70(2).

142. The success factors cited have been: broad and on-going consultation with major stakeholders; commitment and co-operation of stakeholders; solid inter-agency relationships (especially the partnership that developed between the Department of Juvenile Justice and the police); and transparency of the implementation process: J Chan, J Bargen, G Luke and G Clancey, “Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997” at 81.