YOUTHLAW’S COMMENTS ON
THE EXPOSURE DRAFT AUSTRALIA’S NATIONAL HUMAN RIGHTS ACTION PLAN
MARCH 2012
Tiffany Overall Co-director Youthlaw
19 King Street, Melbourne 3000
T: 03 9611 2422
E:
W: www.youthlaw.asn.au
Part A – About this submission
1. About Youthlaw
Youthlaw is Victoria's state-wide community legal centre for young people under 25 years. Youthlaw is located at Frontyard Youth Services in central Melbourne. This is a group of co- located services including crisis housing support, Centrelink, legal and health services, provided to young people who are homeless or at risk of becoming homeless.
Since its establishment in 2001, Youthlaw has been working to achieve systemic responses to the legal issues facing young people, through casework, policy development, advocacy and preventative education programs, within a human rights and social justice framework.
Youthlaw is active in law reform and policy processes, where young people have the potential to feel the impact. Children and young people are generally vulnerable to diminution of their rights and are often less able to assert and protect their rights. Our submissions in law reform processes articulate the rights, as set out in international instruments in particular those articulated in the United Nations Convention on the Rights of the Child (“CRC”) and the Victorian Charter, which are affected by current laws, proposed amendments or new laws, policies and procedures.
Youthlaw facilitated consultations with young people which informed our submission regarding the possible introduction of a national Human Rights Act in 2009. Youthlaw submitted that rights specific to children and young people should be protected so as to reflect and address the special needs and experiences of children and young people. It was submitted that The specific inclusion of children’s rights would help ensure laws and policies are made with reference to CRC principles, the specific needs of children, and serves as powerful reminder that children alongside adults are holders of human rights.1
2. Scope of the submission
Youthlaw welcomes the opportunity to contribute to the public consultation on the exposure draft of the National Human Rights Action Plan. This submission focuses on sections of the plan that are relevant to the human rights experience of children and young people. In particular we recommend the plan add a new priority area of a national policy framework for children, and strengthen proposed actions relating to access to justice and juvenile justice by giving greater focus to diversionary programs for children and young people.
1 Committee on the Rights of the Child, General Comment No 5 (2003) on the General Measures of Implementation of the
Convention CRC/GC/2003/5 (27 November 2003), paragraph 21.
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Youthlaw’s submission to the consultation on the exposure draft of the National Human
Rights Action Plan 2012
Part B – Access to Justice / Juvenile Justice
3. Diversion and support programs for children and young people
We note in the priority section of the draft plan headed “Access to Justice” action items 32,
33 and 34 refer to Victorian initiatives of diversion, bail support and community support programs for adults. However no mention is made of equivalent supports for children and young people.
The UN Convention on the Rights of the Child (CRC) recognises the importance of diverting young offenders from the formal processes of the criminal justice system. Diversion places emphasis on rehabilitation and provides unique opportunities to identify the underlying issues (such as family, behavioural and health concerns) contributing to the offending behaviour. It also allows for referrals to appropriate community based services to address these issues, while facilitating the young person’s meaningful participation in this process. This approach recognises that most juvenile offending is episodic and transitory - most young people mature out of criminal behaviour.
Several diversionary options exist for young offenders in Australia at the pre-court stage and again during court proceedings, although the extent of their use varies considerably among jurisdictions. These include verbal and written warnings, formal cautions, victim-offender or family conferencing and referral to formal or informal community-based programs. However, this list does not exhaust the range of appropriate diversionary options which could be developed.
Diversionary programs result in matters being discharged. Thereby, those diverted from the system avoid the stigma associated with prosecution and having a criminal record, which can limit a young person’s engagement in further education and training.
In Victoria adults (mainly first time offenders) at the court stage appearing in Magistrates Court criminal proceedings are afforded diversion via the Criminal Justice Diversion Program, governed by Section 59 of the Criminal Procedure Act 2009. Unfortunately young offenders under 18 years appearing in Children’s Court proceedings in Victoria are not afforded similar legislative guarantees to diversionary measures.
The diversionary options available in Victoria for under 18 year olds are limited to police cautions, referrals to the Youth Support Service, court based referrals to ROPES programs,
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Youthlaw’s submission to the consultation on the exposure draft of the National Human
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and referrals to youth justice group conferencing. Children and young people may be referred to non-government funded court based diversion programs, but this is dependent on police consent, where they are living and the circumstances of their offending, in addition to
sustainable non-government funding for these programs.
Recommendations
Youthlaw recommends the following actions be added to the plan (either under priority
“Access to Justice” or under the priority area “Juvenile Justice “):
1. The Victorian Government introduce legislation that embeds diversion as an alternative sentencing option in the Children’s Court and supports magistrates and police to divert young people into programs that provide appropriate intervention and
support.
2. The Victorian Government fund and coordinate court based diversion services for
young people with minor and more serious offending behaviour.
4. Bail Support programs for children and young people
As with diversion there is no formal bail support program for young people in Victoria unlike their adult counterparts. A significant number of the young people that are in detention on any given day are on remand. This is despite international human rights standards which state that detention of children should be a last resort, children shall be separated from adult detainees (Article 37 CRC), and a child in conflict with the law has the right to treatment which promotes their sense of dignity and worth, and reflects the best interests of the child, and takes the child's age into account. (Art 40 CRC)
In 2007-08, 18.4 percent of remandees were released on bail. Of the remandees that were sentenced only 28.6 per cent received a further period in detention. This indicates that remand may not have been the most appropriate initial response however due to a lack of bail support there are limited suitable alternatives
Lack of accommodation options for example, especially for homeless young people, sometimes results in a young person being refused bail and remanded. Young people on remand are often accommodated with convicted offenders and/or adult prisoners.
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Youthlaw’s submission to the consultation on the exposure draft of the National Human
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The Victorian Intensive Bail Support Pilot is a new service set up in 2010 for young people who are at a very high risk of being remanded or re-remanded by the Melbourne Children’s Court. The case manager will provide assistance to reduce the risk of reoffending whilst on bail and to help the young person comply with their bail obligations. They will also help the young person address:
• accommodation needs
• education and training needs
• health and development needs
• family support needs
• and other indentified matters.
Recommendation
Youthlaw recommends the following action be added to the plan (either under priority “Access to Justice” or under the priority area “Juvenile Justice”):
3. The Victorian Government improve bail support for children by auditing of the effectiveness of the Intensive Bail Support Program, and secure funding and to embed
the program statewide.
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Youthlaw’s submission to the consultation on the exposure draft of the National Human
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Part C - The human rights experience of specific groups in Australia
Children and Young people
5. Federal Children’s Commissioner
For a long time Youthlaw has supported calls for the establishment an independent National Children’s Commissioner. We see this role as critical to help focus on the rights, interests and well being of children and young people, to ensure their voices are heard, to help monitor and investigate breaches of children’s rights and review the systems, policies and practices of government departments and service providers that affect children.
Youthlaw restates the position made in the recent 2011 Child Rights NGO Report Australia, “Listen to Children” which sees a Commissioner as a compliment to the implementation of national child rights policy framework or National Plan of Action for Children and Young People, based on the framework set out CRC, and aiming to fully incorporate the obligations of the Convention in Australian policy and legislative frameworks, and ensure all federal, state and territory initiatives meet these standards in a coherent manner.2
This framework will need to be supported by legislative, administrative and policy measures, resources including appropriate budgetary allocations that implement the rights of children in Australia. The framework will include evaluation, monitoring and reporting – to the Australian
and international community and to children themselves.
Recommendation 4
Youthlaw recommends a new priority “National Plan of Action for Children and young people be added to the plan ahead of priority “Federal Children’s Commissioner” with the accompanying action:
“Federal Government develop and implement a National Plan of Action for Children and Young People to embed the UNCRC Convention in Australian policy and legislative frameworks, and ensure all federal, state and territory initiatives supported by legislative,
administrative and policy measures including appropriate budgetary allocations.”
2 Listen to our Children Report (2011), Executive Summary p 2. http://www.childrights.org.au/listen-to-
children-reports
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Youthlaw’s submission to the consultation on the exposure draft of the National Human
Rights Action Plan 2012