Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 05/1999 by Honor Figgis
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- Extent of juvenile crime: It is difficult to measure
accurately the nature and extent of juvenile crime. A 1998 self-reporting
survey of secondary school students in NSW found that nearly half of them
reported that they had participated in some form of crime in the last 12
months. The report concluded that juvenile offending is highly prevalent but
transient. A 1996 review of juvenile crime statistics concluded that the
overwhelming majority of juvenile crime is not serious': juvenile offending is
generally not violent in nature; is directed at property; is not organised';
when drug-related predominantly involves the use of cannabis; has not
significantly risen during the 1980s and 1990s; and is very transient (pp 1-4).
- Age of criminal responsibility: The minimum age for
criminal responsibility in NSW and most other Australian jurisdictions is ten;
in Tasmania it is seven and in the ACT it is eight. There have been calls for
the minimum age of criminal responsibility to be lowered below ten. The age at
which a juvenile becomes an adult for the purposes of the criminal law is 18 in
NSW; it varies between 17 and 18 in other jurisdictions (pp 4-6).
- Doli incapax principle: There is a
presumption at common law that a child under the age of 14 is not capable of
committing a crime because he or she does not know that the criminal conduct is
wrong. This presumption, which is known as the doli incapax [incapable of
crime] principle, means that the prosecution must prove beyond a reasonable
doubt that the child knew when the offence was committed that it act was wrong.
This presumption has been criticised on the grounds that it is unnecessary,
outdated, misguided, and illogical. It has been defended on the grounds that it
is a useful and necessary method of protecting children under 14 from the full
force of the criminal law, allowing for a gradual transition to full criminal
responsibility. There have been several proposals to abolish or modify the
presumption (pp 6-10).
- Parental responsibility: The importance of parents and
family life in influencing a child's involvement in crime has been brought into
focus by recent research linking juvenile crime to neglectful or abusive
parenting. This research has led to intense interest by policy-makers and
legislators in preventing child neglect, in order to reduce crime. Two broad
approaches to this problem can be seen: one is to provide training and support
to parents who may not be adequately raising their children; the other is to
compel parents to supervise their children, for example by returning
unsupervised children to their parents or by using criminal penalties against
parents who allow their children to break the law. Both these approaches have
found a place in New South Wales (pp 10-17).
- Diverting young offenders from court: Every Australian
jurisdiction has some form of diversionary scheme, although the form, emphasis
and scope of these schemes varies widely. The trend has been towards
establishing a statutory two-tier system of diversion, with police cautions as
the first level of response to juvenile wrongdoing, and family conferences at
the second level. Now, New South Wales, Queensland, South Australia and Western
Australia have statutory diversionary systems along these lines. Tasmania has
also enacted a similar system, although this legislation is yet to commence. In
the ACT and the Northern Territory, there are police-run family conferencing
pilot programs, and in Victoria a conferencing project is run by a charitable
organisation in association with the Children's Court and the police (pp
17-28).
- Evaluations or assessments of pilot conferencing projects have
been carried out in most jurisdictions. These reviews have largely been
positive, with reports that a large majority of victims, offenders and their
families were satisfied with the conferencing process. There have also been
some significant reductions in the number of juvenile criminal cases being
processed by Children's Courts. On the negative side, there have been some
concerns in several jurisdictions that referral rates to conferencing have been
lower than desired, particularly for indigenous youths. In addition, there is
some evidence of a net-widening' effect; that is, formal cautioning or
conferencing procedures may be used for children who would otherwise have
received a lower level of intervention, such as an informal warning or no
intervention at all (pp 17-28).
- Multi-agency teams: Measures such as the Juvenile
Justice Teams in Western Australia, and the Youth Offending Teams in the United
Kingdom, are an innovative means of engaging the multiple agencies concerned
with young people at risk - schools, health services, police, local government,
courts, and departmental officers - to avoid the potential for young people to
fall through the gaps' of a complex system (p 32).
- Public naming of serious juvenile offenders: In all
Australian States and Territories there are restrictions on publication of the
identity of juveniles involved in criminal court proceedings. There have
recently been calls in NSW and elsewhere for these laws to be relaxed to allow
serious violent juvenile offenders to be publicly identified. In the United
Kingdom the courts may allow juveniles to be named having regard to the public
interest, and in some Australian jurisdictions, the restrictions on naming
juveniles can be lifted in particular circumstances (pp 29-30).
- The arguments against naming serious juvenile offenders are
that: anonymity may enhance the child's prospects for rehabilitation; there
is a risk that some offenders may actually welcome the attention they receive
from being publicly named; the restrictions on identifying juvenile offenders
are consonant with Australia's international obligations to protect the privacy
of children in the criminal justice system; naming juvenile offenders is
unlikely to act as a deterrent, since most juvenile crime is largely unplanned
and impulsive; and there has not been a wave of violent crime by juveniles to
warrant a change in the law (p 30).
- The arguments in favour of naming serious juvenile offenders
are that: it would increase the personal accountability of young offenders
for their actions; it would increase public safety by alerting members of the
community to the presence of young offenders who have committed serious crimes;
it would prevent juveniles deliberately taking advantage of the special
protections available to them; naming juvenile offenders would act as a
deterrent to the young offenders themselves, and to other young people;
legislation allowing the naming of young offenders could be restricted to those
who are aged 17, who in some other Australian jurisdictions are currently
treated as adults for the purposes of the criminal law (p 30).
