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18 Jun 2015

Statutes Amendment (Youth Court) Bill

The Hon. A.L. McLACHLAN ( 16:36 :01 ): I rise to speak to the Statutes Amendment (Youth Court) Bill 2015. I will be speaking on behalf of the Liberal opposition and setting out our views on the bill. I indicate that we will be supporting the bill but are seeking some amendments at the committee stage.

Ensuring the welfare of our children is one of the most important obligations of us all and, where necessary, of the state. It is in the interests of all of us to protect our children and ensure that they are nurtured which, in turn, enables them to become engaged participants in the life of their community and the state.

The Youth Court system arose out of 19th century thinking, having regard to the age or immaturity of children, and seeking to rehabilitate and reform them and even provide care and protection as opposed to necessarily just punishing them and seeking to deter further crime or out of retribution. The jurisdiction is a challenging one. Magistrates are challenged every day, as are judges, to treat young people who have committed offences in a way that is both compassionate and in the best interests of the child, while having regard to the need to protect the community from crime and ensuring the rule of law.

South Australia has a proud tradition in this jurisdiction. A separate youth or children’s court has been a feature of the South Australian justice system since 1895, I think under the Kingston government, where the state children’s act called for a separate room to be used for hearings or trials involving children. In 1978 the Hon. Don Banfield established the Youth Court and at that early stage of development it was pursuant to the Children’s Protection and Young Offenders Act.

The Youth Court we have today in South Australia was established in 1993 by the Youth Court Act. The court is a specialist court which deals with young offenders from the age of 10 to 17. It is a court of criminal jurisdiction but also deals with child protection matters, adoption and surrogacy. The court has specialist judicial officers, family conferencing and a ban on media reporting to ensure that the names of children are not publicised.

These measures have been put in place to ensure that the best that can be done to assist young offenders in rehabilitating them and becoming productive members of the community is undertaken. I understand, from my reading, that the measures have proved to be largely successful. The Youth Court judiciary currently consists of a senior judge of the District Court, who serves as the principal judicial officer of the court, as well as other judges of the District Court, magistrates and special justices. In practice, there are two District Court judges, the senior judge and one other, and two magistrates who preside over the Youth Court.

The bill before us seeks to change the composition of the Youth Court by amending the Youth Court Act 1993 and the Young Offenders Act 1993 as well as some other consequential amendments. The bill provides that the principal officer of the Youth Court will be either a District Court judge or the Chief Magistrate. The remaining judicial officers of the Youth Court will still be magistrates and special justices. In essence, the bill seeks to enable the chief magistrate to sit as the senior judge of the Youth Court.

The bill also makes necessary amendments that flow from this—for example, to give magistrates the ability to hear major indictable trials for, as it currently stands, they are only able to determine and impose sentences in major indictable matters once the accused has pleaded guilty. The bill also makes other consequential amendments to ensure that the day-to-day work of the Youth Court can be undertaken by magistrates. This includes, for example, allowing magistrates to impose a sentence of detention of up to three years, allowing magistrates to hear applications for extensions of time on an investigation or assessment order under the Children’s Protection Act, and allowing magistrates to hear applications under the Adoption Act and the Family Relationships Act.

The Liberal Party believes that we need to ensure that specialist judges of the District Court continue to lead the Youth Court. The Liberal Party’s view has been informed largely by three submissions: one from the Law Society to the Attorney-General dated 6 March, a submission also to the Attorney-General dated 26 February 2015 from the Hon. Margaret Nyland in her role as Commissioner for Child Protection Systems Royal Commission, and a report in 2010 from Judge Peggy Fulton Hora, Adelaide’s thinker in residence at the time.

Perhaps I will deal with each submission sequentially. The Law Society makes a number of submissions but the one I wish to bring to the attention of the chamber is that the Law Society submits that it is generally accepted that the developmental, emotional, psychological and dependency issues, and the impact on offending rehabilitation and sentencing, have a much greater relevance in use. Therefore, they suggest that it would be counterproductive, if not imprudent, for the specialists to be removed from the Youth Court.

They also point out that transforming the Youth Court into one administered by magistrates, excepting the oversight of the chief magistrate, tends to undermine the seriousness of major indictable matters in the Youth Court. They go on to say that major indictable matters are no less serious, if not more serious, in the Youth Court than in the adult jurisdiction. They cannot comprehend the policy behind the proposal that a magistrate would preside over major indictable trials in the Youth Court.

I turn to the submission of the Hon. Margaret Nyland, Commissioner for Child Protection Systems in the Royal Commission. I do not intend to read into Hansard her submission in full but rather paraphrase it. The commissioner has indicated to the Attorney that the Youth Court plays a significant role in shaping child protection policy and practice in the state that has a responsibility of making some of the most important judicial decisions affecting our community—in other words, those who impact the welfare and development of vulnerable children.

She points out that the court has long been regarded as a specialist jurisdiction in which judicial officers are required to have a comprehensive understanding of the special challenges involved in child protection work, including the knowledge of such matters as child development and attachment issues. It is the commissioner’s view that a specialist leadership is necessary to ensure those aims are met. She has expressed concern that the positioning of the court under the management and leadership of the chief magistrate who has responsibility for a much larger, more generalist magistrate court will undermine the court’s capacity to fulfil its specialist functions.

I turn now to the report in 2010 where the thinker in residence, Judge Peggy Fulton Hora, said it was important that the judges and lawyers of the Youth Court are specialised, particularly when it comes to the development issues facing young people. The sentiment of Judge Peggy Fulton Hora, and indeed me, and shared by the Law Society, is that young people are our future and, therefore, they require experienced judges and the most professional youth justice system. South Australia should be aiming to meet or exceed best practice.

Having regard to these three submissions, the Liberal Party will be seeking to amend the bill, and the amendments will substitute the head of the court as a District Court judge rather than the current provision, which provides for a District Court judge or a magistrate. We commend the bill to the chamber and ask the members of the council to have serious regard to our amendments. I will have more to say at the committee stage.

See full session on Hansard

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