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CRIM2038 W2 M2 — Transcript

by Kev Dertadian · 8,052 words · 1,201 segments · language en · Watch on YouTube

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0:01Hello and welcome to the second module
0:04for week two. Here we're going to be
0:06talking about uh legislation and legal
0:09principles and just giving a basic
0:12overview of you know what are the
0:15international, national and uh local uh
0:20pieces of legislation but more
0:21importantly you know uh legal
0:24principles, ideas and processes that are
0:27involved in um the construction of the
0:31juvenile legal system and our approaches
0:33to it. Right? So just giving you a sense
0:35of you know what is the actual makeup
0:38the legal makeup of the system and how
0:40does it work and what kind of foundation
0:42does that build for uh how people
0:44actually experience these systems. So in
0:48the international um context in the
0:50international frameworks um there is a
0:53whole range of legislation and um uh and
0:58treaties that Australia has signed up to
1:01uh and they cover uh all of the things
1:04uh on this slide and of course more but
1:06these are the kind of ma main things. So
1:08basically international frameworks
1:10around young people and how they should
1:12be dealt with in the legal system um
1:15indicate that young people should not be
1:17subject to torture, should not be
1:19deprived of liberty arbitrarily, so
1:22imprisoned um or you know taken away uh
1:25from community or have having freedom
1:27removed from them. Um to be they have
1:30the right to not be separated from their
1:32parents unless considered in the child's
1:34best interest. Um which again can be
1:36highly politicized. something we learned
1:38a bit about in the previous module. Uh
1:41to be treated uh with respect for
1:44inherent dignity of the person, to be
1:46treated as innocent until proven guilty,
1:50access to legal
1:51representation. Um once charged um you
1:54know, young people should have their
1:56matter dealt with um without delay. So,
1:59you know, they shouldn't be they
2:01shouldn't be held um in legal
2:03institutions uh for long periods of time
2:06without having um having the the thing
2:09that they're brought to that institution
2:11for
2:12resolved. The matter should be heard by
2:14an impartial authority or judicial body
2:17and to be um compelled to give evidence.
2:20So they cannot be compelled to give
2:22evidence or testify. Um uh and then also
2:26have the the right to privacy respected
2:29at all stages. And that includes things
2:30like for example you know when juvenile
2:34um offenses are moved through the courts
2:37uh media coverage of those offenses is
2:41not allowed to include the name of the
2:43young person uh and uh so on and so
2:46forth. Right? So there are kind of legal
2:48protections around the uh privacy of
2:52young people going through these kinds
2:54of uh legal issues and that is um
2:58uh that is different I suppose to the
3:01way um the way adult adults are dealt
3:05with in this system. So you know you can
3:06name an adult uh in the media who's
3:09going through a court proceedings but
3:10you can't a child. Um and so what you'll
3:13notice here is that some of these things
3:15are specific to young people. some of
3:17these things um uh are generally
3:20applicable but are reaffirmed as also
3:23important for young people. So innocent
3:25and pro until proven guilty, you know,
3:27is a right uh that should be applicable
3:29to all people. But here it's uh in these
3:32international frameworks, it's
3:33reaffirming that this this relates to
3:35young people
3:36too. There are two broad human rights
3:39standards that lay out the material that
3:41I just um showed you. um not it isn't
3:45the sort of rights of children are not
3:47only contained in those um in these
3:50standards um but this is the majority of
3:54the material so that's the um standard
3:56minimum rules for the administration of
3:58juvenile justice and the UN convention
4:00on the rights of the child so uh the
4:03standard minimum is also known as the
4:05Beijing rules because it was developed
4:08um at a meeting in Beijing and um
4:11Australia has adopted these measures
4:14And then the abbreviation for the UN
4:17convention on the rights of the child is
4:19the CR C I should say. And Australia is
4:23also signary to the CROC. And so you can
4:27see that all of the rights that I've
4:28just outlined uh before um in in the
4:32previous slide are all rights that the
4:34Australian government has said that they
4:36will um provide to young people.
4:40One of the kind of key principles
4:42outlined in the Beijing rules which are
4:44really important for uh the way juvenile
4:46justice has um uh has been uh discussed
4:52in the international community but also
4:54has been beded down in uh sort of more
4:58than one you know state legislation
4:59around these things including in New
5:01South Wales is this idea of detention as
5:03a last resort. the idea that you really
5:05shouldn't be incarcerating children and
5:08young people unless it is absolutely the
5:10last thing uh the last option. So you
5:13know the Beijing rules sets this
5:15principle of detention as a last resort
5:18uh for young people and the rule uh
5:21states for example that the placement of
5:23a juvenile in an institution shall
5:25always be a dispossession of last resort
5:28uh for the minimum necessary period.
5:30Right? are really trying to just um
5:34significantly uh shrink the capacity for
5:40uh juvenile institutions to take young
5:42people away from their family um or away
5:45from community and house them in these
5:48facilities. Of course, it's important to
5:50remember that it's just a principle,
5:52right? that what is being described in
5:55these um what is being described in the
5:59international community as this kind of
6:01the principle of detention of a last
6:02resort even when applied in New South
6:05Wales legislation can be taken away um
6:08and undermined in in uh many kinds of
6:11legislation. So for example in the 2013
6:14in 2013 the state liberal national
6:16government removed the principle uh from
6:18the youth justice act of 1992 in
6:22Queensland. Right. So here you have a
6:26right that's beded down in international
6:28law that has been adopted by a state
6:31government but then the politics of the
6:33day makes it possible to remove that
6:35right to ignore that right um to treat
6:38it um without respect you know those
6:41kinds of things. So these um principles
6:44while beded down in various kinds of
6:47international or even local legislation
6:50are treated um differently according to
6:54the kind of politics of the
6:56day. Okay. So what is the Australian
6:59legisl legislative framework and what
7:01does it cover? It covers things like
7:03principles for dealing with young
7:05people, detention, uh sorry, definition
7:07of what a young person is according to
7:09law, um you know, Australian law, how
7:12police can proceed against young people
7:14in, you know, charging them with a
7:16juvenile offense, diversionary schemes
7:18for young people, special considerations
7:20for young people, establishment of and
7:24jurisdiction over children's courts, um
7:27what matters can be heard by children's
7:29courts, right? So you have children's
7:30courts, but you also have a series of
7:32important decisions around what kinds of
7:34offenses or cases a children's court is
7:38allowed to see and what kinds of cases
7:39get sent to adult courts. Um all sorts
7:42of appeal processes in Australian
7:44legislation, the options for sentencing,
7:47like what what options do judges have if
7:49a young person is convicted? What do
7:51they then have as options for sentencing
7:53them? uh restitution and compensation
7:56and establishment of the operation of
7:59juvenile detention facilities or
8:01basically child
8:03prisons. So what we're talking about
8:05here is um a legislative framework that
8:08is local, right? So this is Australian
8:11government, uh federal government, but
8:13usually what we're talking about is
8:15statebased legislation that says, you
8:17know, what powers do police have when
8:19they're dealing with young people? What
8:21kinds of offenses get uh can be sent to
8:24the juvenile court process? What kind of
8:26appeals processes do they have? A and
8:29what happens when a young person is
8:32sentenced? And importantly, you know,
8:34the the sort of the harshest or or most
8:38intense end of the juvenile system is
8:41that um we have juvenile or child
8:45prisons in Australia and in New South
8:47Wales, right? So children can be sent to
8:49prison and under what circumstances can
8:51they be sent
8:53there. So the main piece of legislation
8:56um that you know most of what we're
8:59talking about so far relates to uh in
9:02our local context is the Young Offenders
9:04Act of 1997 from New South Wales. So
9:07what does this act include? Well, it
9:09enshrines in in legislation a set of
9:11principles already established in
9:12international law about young people's
9:14relationship to the law. So many of
9:16those principles that we discussed in um
9:19uh that I covered I should say in
9:21international law um have been adopted
9:24in this act in New South Wales. And that
9:27includes things like um the right to
9:30obtain legal advice to be to to not have
9:33criminal proceedings
9:35um if alternatives are available. Uh to
9:39not have criminal proceedings used uh to
9:41meet welfare needs. uh to be able to
9:44remain in the community with the family
9:46wherever possible. Um to have parents
9:48and children included in the process. Um
9:52victims should be uh informed of actions
9:55uh that are taken under the act and
9:56Aboriginal and toouristr islander over
9:59representation as it's put here in
10:01particular is to be dealt with through
10:02diversionary means and measures. And so
10:06what you can see here is a set of um
10:08high-level principles that mimic or um
10:11reward uh the material in international
10:15law. And what I'm hoping you would have
10:17noticed already is that many of these
10:20principles and uh kind of uh uh
10:25commitments in legislation are not
10:27actually met in principle. I mean you
10:29know uh over representation will be
10:32dealt with by diversionary means is you
10:34know clearly not something that happens
10:36in the community
10:39um uh you know alternatives being
10:42provided we're available is something
10:44you know it's well known that it's that
10:46the options for alternative sentencing
10:48and alternative
10:50um processes around juvenile legal
10:54systems are very rare. They're
10:56underresourced. those kinds of things.
10:58And also, you know, things like to have
11:01um uh to not have welfare needs met with
11:05criminal proceedings is really a an
11:09overpromise here that the juvenile
11:11system has uh has not met, right? uh
11:14most young people in the juvenile system
11:17have serious um needs that are not being
11:20met and that are you know clearly being
11:23punished via the uh via the juvenile
11:26system. So really important to be
11:28critical about what legislation says
11:30versus what actually happens through
11:32these institutions and what that
11:34legislation is enabling
11:36um as in terms of a process to happen to
11:40young
11:42people. Discretion is a really um
11:45important idea that is kind of discussed
11:47a lot in um in and around discussions of
11:51the way young people are dealt with and
11:53the way young people are are or should
11:56be dealt with by the juvenile legal
11:57system. Termin discretion is one of
11:59those things where you know most people
12:01uh when they're using the term
12:02especially in public discourse tend to
12:04use the term in a way that says this is
12:07something that is really important
12:09special a special interest for young
12:12people is the ability for um uh for
12:15discretion to be deployed in the way
12:17that police and courts deal with young
12:19people. And while the term is often uh
12:22often signals to many in the community
12:25the capacity for for example police
12:27officers to decide to not charge a young
12:30person, it's actually um a bit more
12:32complicated than that. And I want to uh
12:34open up uh what we mean by the term
12:37discretion. So discretion can be kind of
12:39broadly divided into informal discretion
12:42and discretion inscribed in law.
12:44informal discretion uh which uh is the
12:47form of discretion I think that happens
12:49most often is the one that's least
12:51discussed in the public um and is not
12:54spoken about very much in the media or
12:56even in academic literature and this is
12:58largely because it involves um a
13:01discussion of how the political
13:02motivations of police departments as
13:04well as individual police officers are
13:06operating. So informal discretion is
13:09about where police departments choose to
13:11patrol um as in what suburbs and what
13:14parts of those suburbs. It also involves
13:16what they choose to focus on during
13:19formal patrols and the launching of
13:22investigations. And finally when they do
13:24see crime in the field uh there is a
13:27level of kind of discretion involved in
13:30um things as as basic or simple as you
13:33know the decision to chase someone or
13:35not. This can involve human uh
13:38considerations such as whether or not an
13:40officer thinks um thinks that they can
13:44catch up to a young person, but it can
13:45also uh encompass more sinister
13:48prejudices such as those against or or
13:51biases towards uh queer communities,
13:54ethnic minority youth, so on and so
13:56forth. Right? So, these are the kinds of
13:58discretion that police are deploying all
14:00the time and that we're really not
14:02talking about. discretion is actually
14:04part of the job as a police
14:08officer. Now, that's one kind of
14:10discretion. That's informal discretion.
14:12But there is also kind of discretion
14:14inscribed in law uh which is what
14:16usually is being discussed in policy
14:18conversations. And this is where uh you
14:20know legal powers are provided to police
14:22officers to differentiate their response
14:25to the kinds of offenses they observe or
14:27investigate. So for instance, young
14:29people um uh or the young offenders act
14:32I should say of uh outlines a series of
14:35discretionary measures that police
14:37officers uh are you know given the power
14:40to take um and and sort of encouraged to
14:44take I suppose by officially laying this
14:47down in legislation. And this means the
14:49kind of difference between who gets
14:51arrested or is summoned to court on the
14:53one hand uh or who gets a caution or or
14:57referral to a youth justice conference
14:59on the other hand. And we'll talk a
15:01little bit more about some of those
15:02things um as well because often what
15:04we're talking about is discretion to
15:06charge or discretion to divert from the
15:09from the juvenile system.
15:11So diversion then um is often what is
15:17being encouraged through the application
15:19of um the application of uh
15:23discretionary measures in law. Now
15:26diversion uh diversionary measures can
15:29be used as a as a form of uh diversion
15:32from right what do we mean by from here?
15:35It can be from court or it can be from
15:37detention as in you know prison. So the
15:40ver uh the the term is used to describe
15:44a series of options available to police
15:47officers and courts as alternatives to
15:50processing young people through the
15:51juvenile legal system or at the very
15:54least minimizing the harsh impacts of
15:56their contact with the system. So
15:58broadly speaking um uh diversion there
16:03are two kinds of diversion that that I
16:05that I just mentioned before. So, uh,
16:07police officers, um, are empowered to
16:11make decisions to divert young people
16:13from court via, um, uh, via a range of
16:18means that are listed here. So, when we
16:21say from court, it means a police
16:23officer is the one doing the diversion.
16:25So, the police officer will decide to
16:27issue a warning, provide a caution, or
16:29refer to youth justice conference. So,
16:32what do each of these mean? A warning is
16:34an um educative response that warns uh a
16:38young person or seeks to warn a young
16:40person that
16:42um of the potential consequences uh of
16:46what they what they've been caught
16:49doing, I suppose. Right. So, this is
16:51educative. it isn't kind of officially
16:53jotting down um and keeping record of um
16:59the potential um
17:02consequences of the action. It's just
17:05telling the young person this is um this
17:08is what could happen in the future if
17:10you do this this kind of stuff again.
17:13And that sounds, you know, like a light
17:16uh light approach or the lightest kind
17:18of approach uh you might imagine, but we
17:21got to remember the infrastructure that
17:22comes around this stuff. Sometimes
17:23warnings happen by taking young people
17:26in to the police station and putting
17:28them in a room and making the warning
17:30there and that is also highly
17:33problematic um in many instances. Um uh
17:36but yes, so cautions is next on the list
17:39and this is a formal caution, right? So
17:42as differentiated for from a warning,
17:45this is where um this is where a young
17:47person is taken one step further um
17:51through the process one step closer I
17:53should say to the process of arrest or
17:55incarceration where it's noted that a
17:58young person has been cautioned and that
18:00is then you know placed on their record
18:02for the next time um should they come in
18:05contact with a police officer. And
18:07finally, police officers can refer a
18:11young person uh to a youth a youth
18:14justice conference. So conferences are a
18:17kind of alternative to a court process
18:20um or alternative to a sentencing
18:22process as as we'll see. Uh but
18:24conferences bring together young people
18:27who've been charged with an offense and
18:29actually you're allowed to um you don't
18:32get access to a juvenile conference
18:34unless you've pled guilty to the
18:35offense. Um it brings together that
18:38young person, their families and
18:40supporters face tof face with victim
18:42survivors um of that of the offense in
18:45in question and a victim survivors
18:48supporters uh often includes the police
18:51um and other community members um to
18:53discuss the offense and
18:56um and how uh people have been affected
19:00by it. um right and the idea is that you
19:03end up at a at an alternative outcome
19:06where the young person isn't um
19:08imprisoned. On the other hand, um if a
19:10young person has been sent to court,
19:12right? So all of those options I've
19:14described is instead of sending someone
19:16instead of charging someone with an
19:18offense um or sending them to court for
19:21that offense um and if that process has
19:25not played out, if they haven't been
19:26diverted from um court uh and they're
19:30sent to court, then judges have a range
19:33of options for diverting young people.
19:35And that's usually means diverting them
19:37from prison, right? So making sure that
19:40the sentencing does not um does not end
19:43up in uh just uh a stint in a
19:48prison. So um judges have a range of
19:51options that are listed here. Um so they
19:54can give a fine, a good behavior bond,
19:56court order, suspended sentence,
19:58adjournment or community service. So a
20:00fine is basically money that a court uh
20:03or other legal authority decides has to
20:06be paid as a kind of punishment for an
20:08offense. Good behavior bond is an order
20:12from a magistrate that a person be of
20:14good behavior for a specified amount of
20:16time uh with or without other
20:19conditions. So you know what good
20:20behavior means can be specified right?
20:23What do they mean by that? Um and in
20:27what in what context? Court order is
20:30often around restricted movement or
20:32association. Right? You're not allowed
20:33to go to this building. You're not
20:35allowed to associate with these people
20:38um uh in during the period of your court
20:41order. um which uh actually can have
20:45some really serious consequences on the
20:47lives of young people because for
20:49instance, you know, uh the uh the court
20:52order might include, you know, a a young
20:55person who
20:57um a young person who they committed an
21:01offense with or um who was present at
21:03the time of the offense and and that
21:05kind of thing. I mean there are many
21:06many stories of deeply problematic court
21:09orders that you know order a young
21:11person um to not associate with this
21:13particular person but that person is of
21:15course their cousin right and is at
21:17family functions or that person is at
21:19their school um and that you know makes
21:21it difficult for them to attend school
21:23or at their workplace and difficult for
21:25them to make money and so you know all
21:27sorts of um problems with the way you
21:30know restricted movement and association
21:32can be deployed in these context
21:35suspended sentences, you know, if uh
21:38convicted of. So, this is basically
21:40where a judge says, you know, you've
21:42been convicted of this offense. I'm not
21:44going to provide a punishment for you on
21:46this occasion. Um, and that's usually a
21:49a prison sentence, but in the future, if
21:51you commit another offense, whatever
21:53you're sentenced to in that uh future
21:57possible offense will be added to the
22:00the court sentence uh the the detention
22:03sentence for for this offense, right?
22:06So, I'm not going to send you to prison
22:07now, but if you commit another offense,
22:09your prospective prison time for this
22:13offense will be added to the next one.
22:15You can also um judges can also do
22:18adjournments. So that is where a court
22:21um uh may make an order to adjurnn the
22:23proceedings against a young person to a
22:25specific date in the into the future. Um
22:28where the young person then has the time
22:31um to demonstrate, you know, uh that
22:34they have um conducted certain kinds of
22:39uh things that seem desirable to a
22:42judge, right? they've um started work,
22:45started attending school more regularly,
22:48um haven't gotten into further trouble,
22:50those kinds of things. That gives the
22:52young person a time to demonstrate that
22:54they've done those things before uh they
22:58actually have their court proceeding.
22:59And then there's community service,
23:01right? So alternative, that's an
23:02alternative to imprisonment. Um um and
23:05it's not uh it's intended uh to be kind
23:09of rehabilitative and it gives a young
23:11person the opportunity to make well the
23:14idea is that it gives a young person an
23:16opportunity to make amends to the
23:17community um that they conducted the
23:19offense against or the where the harm
23:21was
23:23conducted. So this is um some of the
23:26options for diversion afforded to police
23:28and um to judges who
23:31sentence. Now, one of the other things
23:33um uh that is a really central concept,
23:38right, when dealing with young people is
23:40this idea of dolly and capac. And it's a
23:43Latin phrase and a legal term which
23:45means that a young person is deemed um
23:48incapable of forming the intent to
23:50commit a crime or
23:52um uh yeah. So basically it says that
23:56the young person is not capable this
23:58young person is not capable of
24:00understanding the um uh that that the
24:04act was seriously wrong. So in order to
24:06sort of understand this principle it's
24:08useful to think about the features uh of
24:11a crime as defined by law. Um, for a a
24:15person to be uh considered
24:19um for an act I should say to be
24:22considered criminal, it must be
24:23committed with what's called
24:26uh meaning it has been um deliberate or
24:29done on purpose. So in the legal
24:31definition, this requires an
24:33intellectual maturity and life
24:35experience that is not present in
24:36children. So, this is about more than
24:39children knowing they did uh what they
24:42did is simply naughty or wrong, but uh
24:45about understanding the implications of
24:47the conduct um that they're accused of.
24:50While a young person may be aware that
24:52something is that that it's wrong to
24:54steal something, they may not understand
24:55the impact of financial loss, for
24:57example. While a person may be aware uh
25:01that it's wrong to hit someone, they may
25:03not understand the harm it causes uh
25:06when they when they do so. Um you know,
25:09things like the the way the body works
25:11and um you know uh physical pain and
25:15those kinds of things. So following uh
25:18uh this principle, all children under
25:20the age of 10 in New South Wales um are
25:22considered dolly incapac
25:25[Music]
25:28um when uh when something is seriously
25:32wrong and can therefore not be charged
25:34with a juvenile
25:35offense. Now this gets a little bit more
25:38complicated um when we look at um you
25:42know above 10, right? So as mentioned in
25:47the previous slide, children under the
25:48age of 10 are considered uh to have what
25:51is referred to a kind of conclusive
25:53presumption of Dolly Incapac. And that's
25:56the idea that
25:58um that's the idea that uh you know you
26:02can't you can't deny that children ages
26:05legally you can't deny that children
26:08aged between 0 and 10 don't know what
26:10they're doing um is wrong. Right? they
26:12do they do not understand what is uh
26:15wrong according uh to uh to the law. Uh
26:19so this means that the law assumes that
26:21they are not capable of committing any
26:23crime or or juvenile
26:26offense. Now between the ages of 10 and
26:2914, young people um are afforded what is
26:33referred to as the rebuttable
26:35presumption of Dolly and Kapax. is uh a
26:39little bit different um uh in the
26:43Australian Capital Territory. So you
26:44know this is um generally the case for
26:48across all of Australia but in ACT um 0
26:52to 12 is the rebuttal is the conclusive
26:55presumption. Um but for the most part um
26:58between ages 10 and 14
27:01uh children are afforded a a different
27:04process um for um for whether or not
27:08they are dolly in capac. So here young
27:11people must demonstrate to the court in
27:13a separate legal proceedings that young
27:15people have the capacity to know what
27:17they did uh was seriously wrong before
27:19they can proceed um to the charging of a
27:22young person with a juvenile offense.
27:25So if the presumption of Dolly incapac
27:27is successfully rebutted then a young
27:29person is charged with the offense and
27:31if the young and if it isn't
27:32successfully rebuted then they can't
27:34charge the young person. So by the age
27:37of uh so between the ages I should
27:39should say of 14 and 18 young people are
27:41regarded as um what is referred to as
27:45juvenile offenders although we contest
27:47that term in many ways in this course
27:50and then they are dealt with by a
27:52separate juvenile law system such as the
27:55children's court and if sentenced to
27:57detention or or to prison they serve the
28:00sentence in a what's referred to as a
28:02juvenile detention facility or a child
28:05prison.
28:06which is separate to the adult system.
28:08So after the age of 18, uh young people
28:12are assumed to have full uh uh full
28:16criminal responsibility
28:19um and uh are dealt with through adult
28:21courts. Now there are of course some
28:23crossovers between young people um
28:27between juvenile and adult facilities.
28:29In some cases, um, young people who've
28:31con been convicted of a crime, who turn
28:3318, who've been convicted of an offense
28:35when they're under the age of 18 and
28:37then turn 18, um, while serving their
28:40time, they can serve their time in a
28:42juvenile facility. Right? So, if you've
28:44been convicted of an offense
28:47um of of an offense that you committed
28:50while you were under 18, but when you
28:52arrive um to the point of sentencing and
28:55imprisonment, you are already you you've
28:58become 18, you can often submit um you
29:03can often serve that sentence in a
29:04juvenile facility because you were uh
29:08you were under the age of 18 when you
29:10committed the offense. Um a and uh
29:14sometimes when you have only a small
29:15amount of time left in a facility and
29:18you're turning 18, you're allowed to
29:20stay in a juvenile facility. In and in
29:23other instances, the opposite happens,
29:26right? uh the state can argue um to
29:29treat a young person who is under the
29:31age of 18 as an adult and have the
29:34matter dealt with as an adult offense or
29:36have it dealt with through an adult
29:38system which means that they go to um an
29:40adult prison if
29:44convicted. Okay. So,
29:47um, it's important, I think, to talk a
29:50little bit about Dolly Incapacs in New
29:52South Wales. And in part, it's important
29:54to do that because, um, well, it'll be
29:57in, uh, your assessment. it's one of the
29:59options for your assessment, but also
30:01because the New South Wales government
30:02has recently been talking about um
30:06expanding uh Dolly Inca packs and
30:09largely um been speaking about that to
30:13um to at the detriment of uh a previous
30:18conversation about um raising the age of
30:20criminal responsibility. So, it's
30:22important to kind of compare these
30:24processes and what they mean for young
30:26people, right? So what's the process and
30:29the implication of that process of of
30:31demonstrating dolly incapacs in New
30:33South Wales? Like what is the core
30:35process that allows uh children between
30:38um uh 10 and 14 to demonstrate that
30:43they meet the standard of impacts or
30:46that they don't meet it. So as well as
30:49providing kind of each element of the
30:51court offense, the um the the state um
30:57the state must uh must also um or the
31:02state or the prosecution must also rebut
31:04the presumption of Dolly Incapac in a
31:06court. So we talked about that in the
31:07previous one. it's it's on the state to
31:10demonstrate that a young person
31:13um uh doesn't meet the standard of bully
31:16income tax. So what that involves though
31:19can um can be
31:23uh can be quite underststudied or under
31:27discussed in the public domain. Right?
31:29Often we just hear that you know a young
31:31person has the right to sort of apply
31:32for Dolly Incapac or to demonstrate that
31:34they didn't know. But what this involves
31:37is an assessment of the evidence
31:39available um to the court at hearing or
31:42trial and sometimes evidence available
31:45to the police or prosecution um before
31:48the hearing or prehering um that is
31:51capable of kind of reviding Dolly and
31:53Kapax. But it's important to note that
31:55there is no actual assessment of the
31:57child by a by a relevant professional.
32:00Right? So what assessment means is
32:01actually just you know what the police
32:03have observed um or what uh or what a
32:07court assumes about a young person.
32:09There is no sort of uh psychologist or
32:12social worker that sits with the child
32:13and discusses their emotional maturity
32:16um and uh level or capacity to
32:20understand what they did. Right? So this
32:22is really important because in public
32:25conversations about you know what Dolly
32:27and Kapax is or what what a process of
32:30demonstrating Dolly and Kapax is often
32:33involves this idea oh you know we make
32:34this assessment of the young person but
32:36that assessment is actually in the power
32:38or discretion of police officers and
32:41often doesn't actually involve um the
32:43gathering of
32:45evidence. Um you know in New South Wales
32:48it also applies only to criminal
32:50responsibility. So determining whether a
32:52child is guilty or not guilty and
32:54whether they will be sentenced, right?
32:55So it's it's essentially about, you
32:58know, whether they're they're um able to
33:00be criminally responsible. So in
33:02practice, it does not protect a child
33:04from, for example, criminalization as it
33:07doesn't impact whether a police
33:09proceedings happen. So whether a young
33:12person will be charged and that's really
33:14where the core of um most of the issues
33:18around criminalization occur, right? So
33:20contact with police, being placed in uh
33:23in a police cell, being placed in a
33:26court process and so on and so forth.
33:28These are all um serious harms that
33:30occur to young people and dollying capac
33:34um or the process of demonstrating
33:35dollying
33:38capaces. All right? So it doesn't
33:40interrupt the process of a police
33:42charging a young person. It has almost
33:44no impact on whether a young person will
33:47be charged. That is all something that
33:49happens
33:50after the presumption of Dolly Incapac
33:53uh doesn't usually um change a child's
33:56pathway through the criminal legal
33:57system either until the final court
34:00hearing. Right? So all of the normal
34:02processes actually continue to occur
34:05until the very final hearing. So
34:07actually defending a charge on the basis
34:09of Dolly and capac usually means that it
34:12takes much longer uh to resolve the
34:14legal status of a child. um uh and at
34:18that time in the time period you know
34:20where a young person's status is
34:22unresolved they could be in prison they
34:24could be in a juvenile facility awaiting
34:28outcome for their trial and if you
34:30choose to pursue Dolly and
34:32capac right you know my client didn't
34:34know didn't have the capacity to know um
34:37that actually takes longer right it's
34:39it's another core process that means
34:41that your child that that the child in
34:43question will be in prison longer will
34:45be dealing with police more often so on
34:48and so forth because it's another
34:50process that they have to go through. So
34:53uh the last thing to note is that
34:55evidence brought about in order to argue
34:57for rebutting or upholding the
34:59presumption of Dolly and can be damaging
35:02to a child's reputation to key supports.
35:04For example, in order to gather evidence
35:07related to Dolly Incapac um uh
35:11sometimes, though not often, teachers,
35:14counselors, and family members are asked
35:16to present the child as either incapable
35:19uh of um uh of understanding the world,
35:22which can damage their relationship with
35:24these people, or as highly capable and
35:27knowing that something was seriously
35:28wrong, uh which kind of plasters over
35:31the nuance of of what's going on.
35:34So really important kind of
35:36considerations when we think about what
35:38actually is this process of uh um uh of
35:42defending or um uh or or not dollying
35:46capac what does it actually involve as a
35:48legal
35:49process. Um there are also other um kind
35:53of uh movements for reform around this
35:57which generally center around uh the
36:00need to not deal with young people um to
36:05not deal with issues related to young
36:06people through legal processes. So what
36:09is the case for reform around these
36:12things? There were a whole range of uh
36:14kind of areas and arguments um and I've
36:18listed just three here to give you a
36:20sense of it. So I've going to talk a
36:22little bit about medical science, social
36:23science and human rights. So medical
36:26science argues for example that young
36:27people are still experiencing serious
36:29developmental um are still experiencing
36:33ser serious development I should say of
36:35parts of their brain that are
36:37responsible for uh for them to reflect
36:40on action. they're still learning the
36:42difference between right and wrong and
36:44between behaviors that are seriously
36:46wrong and those that are merely naughty
36:48or mischievous. So this is where we can
36:50get into the kind of material around the
36:52development of the frontal lobe uh which
36:54is involved in decision-m and the
36:57general argument is that you know uh
36:59young people's physical bodies their um
37:02the organs involved in decision making
37:05are not fully developed. They don't
37:07fully understand the world right you
37:09know I think that some of these
37:11arguments um can uh be really useful and
37:14accurate. Obviously um you know the
37:17development of uh of the ability to make
37:21decisions is really important
37:23consideration but I think sometimes we
37:25need to be careful around saying that
37:27someone's physical uh development their
37:30frontal lobe um is the only thing that
37:32makes makes autonomy important or
37:35central and here I'm saying that because
37:37we we know that young people have
37:39autonomy and agency and we should be
37:41respecting that in terms of you know we
37:43want them to be able to be involved
37:45olved in decisions around their own
37:46lives, right? Not necessarily um to, you
37:49know, um to be kind of dismissed of
37:52their agency in that way. And that has
37:54implications as well for the way we
37:56think about uh you know, criminal
37:57liability.
37:59There are also social science arguments
38:02uh which claim and evidence that young
38:04people uh that the younger a person is
38:07when they're in contact with criminal or
38:09juvenile legal institutions or
38:11personnel, the more likely they are to,
38:14you know, uh engage in um further acts
38:19of uh further acts of uh harm or or or
38:23violence, the more likely they are to be
38:26reincarcerated.
38:28um or charged with another offense.
38:30Right? So here it's really important to
38:33observe uh uh what what is being said
38:36here. Right? The younger a person is
38:38when they come into contact with these
38:39systems, the more likely they are to
38:41engage further in uh offenses regarded
38:46to be um harmful in uh they're also more
38:50likely to be criminalized for those
38:51offenses too.
38:53Um and this of course stunts social
38:56development, the capacity for children
38:57to transition into educational or
38:59employment outcomes considered desirable
39:02by you know um by the state by society
39:06generally so on and so forth. So you
39:08know actual contact with and the longer
39:11you have contact with and the younger
39:13you are when you have contact with these
39:14systems is uh criminogenic right. It
39:18makes young people more likely to engage
39:20in harm, makes them more likely to be
39:22criminalized for that harm because
39:23they're on the radar of the system and
39:25so on and so forth. And then we also
39:27have human rights law which say which
39:30for example say you know the United
39:32Nations Committee on the Rights of the
39:33Child has long advocated for a minimum
39:35age of criminal responsibility of 14 or
39:38older, right? And the committee on the
39:41elimination of racial discrimination has
39:42been especially critical of of late um
39:45as it relates to the serious over
39:47representation of Aboriginal uh young
39:49people in juvenile custody here um in
39:52this place. Right. So we have really
39:54important
39:56um uh key arguments that Australia is
40:00not meeting that New South Wales
40:02government is not meeting um around you
40:04know uh what it means to be a child and
40:07what the implications are for being a
40:09child in contact with these legal
40:10systems uh and you know many of these
40:14disciplinary areas call for change and
40:18reform in relation to the way we deal
40:20with young people. So what does reform
40:22look like? There are a whole range of
40:24things that have um that have come up in
40:27relation to young people and and what
40:29what will work um to to address some of
40:32these things. And one of the kind of
40:34main campaigns has been the raise the
40:36age campaign where um the age of
40:38criminal responsibility would be raised
40:40to at least 14 uh if not higher. Um and
40:44these discussions kind of um were
40:47getting a lot of momentum uh a few years
40:49ago um and have since um lost steam and
40:54in in in the midst of this kind of
40:56recent political resurgence of
40:58discussion about youth crime and the
41:00intensification of punishing young
41:02people um that has been happening over
41:04the last couple of years. But the raise
41:06the age campaign nonetheless progresses.
41:09Right. So, um, just a little bit of
41:11history around some of the the movements
41:13in the Raise the Age campaign. So, it's
41:15been going on for longer than this, but
41:17in 2018, the Council of Attorney
41:20Generals um from the from different
41:22states and territories um started to
41:25investigate the potential of raising the
41:26age of criminal responsibility to 14
41:28across Australia. So, all all states and
41:31territories. And as part of that
41:32process, they received 93 submissions
41:35from youth um medical and legal
41:37organizations largely supporting the
41:39proposal to raise the age. And there are
41:42a whole range of kind of political m
41:43minations that followed that um uh which
41:47uh have been you know a problem. So a
41:50problem for that for the for the
41:52campaign. So on the 20th of July uh
41:552020, a group from the New South Wales
41:58campaign um that is the raise the age
42:01campaign met with the New South Wales
42:03attorney general who was Mark Speakman
42:06in the leadup to the Council of Attorney
42:08General's meeting which was going to be
42:09uh uh in about a week's time from then.
42:12Um but the initiative was put off due to
42:15a supposed lack of alternative processes
42:17and services. Right? So the the position
42:19was put from the New South Wales
42:20government that we can't raise the age
42:22of criminal criminal responsibility
42:24because we don't yet have um
42:27alternatives for how to deal with young
42:29people. Um which isn't of course true
42:32and we'll talk a lot about what the
42:34alternatives are and their ability to
42:36scale up those alternatives but that was
42:38the position of the New South Wales
42:39government. So for uh 88 of the um of
42:43the submissions uh
42:46uh permission was given to make these
42:49submissions public. Um but of course uh
42:53there were many requests to make that
42:55happen but that never happened. And
42:57that's important because many of those
43:00submissions that were made to the um to
43:03the uh to the council of attorney
43:07generals and many of those submissions
43:09advocated for uh raising the age of
43:12criminal responsibility and outlined the
43:14alternatives. Right? So those
43:16alternatives are documented to the New
43:18South Wales government but are not made
43:21available publicly. There's also other
43:24ways in which you know um youth
43:26organizations have sought to reimagine
43:29youth justice. So in 2021, the Melbourne
43:32Commission of Commission for Children
43:34and Young People released a report
43:36called uh our youth our way. And the
43:39report calls for reimagining youth the
43:41youth justice system in ways that center
43:44indigenous self-determination as a key
43:46principle. And this involves
43:47indigenousled in initiatives for
43:50supporting young people, right? And in
43:52ways that uh make place indigenous
43:55communities in charge of their own
43:57children. And this is really important
43:59kind of reimagining of the system
44:01because you know in many of the
44:03conversations we have it's about court
44:05and legal processes that seek to um
44:08control or decide what is best for young
44:11people. Um and in this
44:14um and in this report what they're
44:16asking for
44:18is indigenous communities to be in
44:20charge of their own children and by
44:22extension you know how does that apply
44:23to non-indigenous communities? well,
44:25local communities um uh to be in charge
44:30of their own children. Right? So, let's
44:32have a little think then about how some
44:34of the legal principles and legislation
44:37and legal principles that I've outlined
44:39so far come into collision with these
44:42kind of uh campaigns for change and and
44:45reform. And here I'm showing you a
44:46little video of uh uh of uh the our way
44:52um so our youth our way uh report right
44:55and how it is being spoken about uh upon
44:59its release. So the question I want you
45:02to think about as you watch this video
45:04is how does the approach uh presented in
45:06the video differ from the way legal
45:08institutions currently deal with young
45:11people. So, let's have uh a bit of a
45:14listen and
45:17uh then we will uh and then I want you
45:19to just jot down those thoughts in
45:23um in the interactions below. Let's have
45:26a look.
45:30I wish I had a mentor who could help me
45:32go through this world better. Someone
45:34who can help me start that from the
45:36beginning.
45:38My name is Justin Muhammad. I'm a proud
45:41Grang man and the commissioner for
45:43Aboriginal children and young people
45:45here in Victoria. It's my job to
45:47advocate for the safety and well-being
45:49of our Aboriginal children and young
45:51people and to promote their voices. The
45:54Commission for Children and Young People
45:55has just released a report following an
45:57inquiry called our youth our way. The
46:00inquiry looked at key things
46:02contributing to a originalinal children
46:03and young people's contact with the
46:05youth justice system and to find ways to
46:07reduce their involvement in it. Too many
46:10Aboriginal kids are involved in youth
46:12justice. In Victoria, Aboriginal
46:14children and young people represent
46:16about 15% of the youth justice
46:18population despite making up just 1.5%
46:21of the youth population. The inquiry
46:24report includes the voices of Aboriginal
46:26children and young people who have
46:28shared their experiences of youth
46:30justice to help us work out what needs
46:32to change. Our youth our way provides
46:35government with an Aboriginalled and
46:36self-determined roadmap for change. We
46:39want a system that protects the rights
46:41of Aboriginal young people and supports
46:43them to heal and thrive. So what did we
46:46hear? Many Aboriginal children and young
46:49people involved in youth justice system
46:51have experienced trauma and broken
46:53connections to culture and community. If
46:56I could go back, I'd change what
46:58happened. Take all that pain and anger
47:01that starts with what our ancestors went
47:03through. If I had a dream and it all
47:06came true, none of us kids would have
47:08gotten taken away. Entry into the youth
47:11justice system could be avoided if there
47:13are early efforts to give our children
47:15and families the supports they need
47:17through Aboriginal community-led
47:19initiatives. It's all about
47:21opportunities. If you reach out for
47:23help, there's no help until you get in
47:25trouble. I wish I had a mentor who could
47:27help me go through this world better.
47:29Someone who can help me. Connection to
47:31family, community, and culture is a
47:34powerful protective factor for
47:35Aboriginal children and young people and
47:37instrumental for healing. Keep your
47:40culture. Don't let it die out. It's what
47:42kept me strong. You have to know who you
47:45are and where you come from to heal. The
47:48commission found that services delivered
47:51by the Aboriginal community can achieve
47:53better outcomes for ainal children and
47:55young people in contact with the youth
47:57justice system.
47:59What needs to change beyond the current
48:02youth justice system? We need to address
48:04the failures in other social services
48:07like child protection and education. The
48:10report makes 75 recommendations to
48:12change government systems to support
48:14Aboriginal children and young people to
48:16stay safe, happy, and away from the
48:19youth justice system.
48:21Some important changes the report
48:23focuses on include self-determination
48:26embedded in these reforms. Aboriginal
48:28community should be empowered to take
48:30responsibility for elements of the youth
48:32justice system. Healing on country could
48:35have fishing programs, camping, going
48:38out bush for weeks away from drugs and
48:40alcohol. Have all the elders take all
48:42the younger boys out. They know us and
48:44know what's best.
48:46We also need the system to be compliant
48:49with human rights. Victoria's low
48:51minimum age of criminal responsibility
48:54means children as young as 10 can be
48:56held in custody. This is particularly
48:59harmful to Aboriginal children. We need
49:02to increase the minimum age of criminal
49:04responsibility to 14. My brother is 11
49:08and he got reminded, "No little kid
49:10should be arrested at that age. We need
49:12more say in the justice system. Why not
49:15just talk to them and ask them why they
49:17are doing what they are doing? We need
49:19to create a child- centered system that
49:21meets the unique needs of every
49:23Aboriginal child and helps them reach
49:25their potential.
49:27Instead of being treated like a
49:29criminal, you could be treated like a
49:30person who has done the wrong thing.
49:33Most people have a reason. They don't
49:34just go muck around for fun. Try and
49:37help them get better. Help them help
49:39themselves get better. Lastly, we should
49:41work towards having none of our children
49:43and young people in custody. Until we
49:46get there, we need small homelike
49:48facilities that provide culturally
49:50appropriate care. Being locked up
49:52shouldn't exist for young people. We
49:54should get support from the community to
49:56become stronger instead of punishing us
49:58because we're traumatized. If you want
50:01to find out more about our youth, our
50:03way, you can click on the link below to
50:05see the executive summary and report.
50:10[Music]
50:23So just have a think about that um as
50:25the like last activity for uh for this
50:28module. Uh jot your thoughts down and um
50:31we will talk about it in class. Thanks
50:33everyone and I will see you next time.

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