14 June 2016

Youth Justice and Mandatory Reporting

The Youth Justice and Other Legislation Amendment Bill 2016 (Qld) seeks to
  • Close the Childrens Magistrates Court when hearing all youth justice matters under the Childrens Court Act 1992 (Qld) and provide for victims or their representatives to be present in closed court; 
  • Increase the age at which children and young people subject to periods of detention under the Youth Justice Act 1992 (Qld) are to be transferred to adult corrections from 17 to 18 and empower a court on application, to delay a young person’s transfer for up to six months; and 
  • Reinstate a court-referred youth justice conferencing program and expand the program to allow for increased flexibility in the delivery of restorative justice interventions as part of police-referred and court-referred conferencing. 
The Explanatory Memorandum states that
current provisions in the YJ Act were based on a non-evidenced policy rationale that stronger penalties and other negative consequences which hold repeat offenders more accountable for their actions will deter further offending by the small cohort of recidivist offenders responsible for a significant proportion of youth offending. 
During the 2015 general election, the Government committed to repealing reforms made to the CC Act and YJ Act in 2014 (the 2014 amendments) as introduced by the former Government and effected by the Youth Justice and Other Legislation Amendment Act 2014 (the 2014 Amendment Act). The 2014 amendments, amongst other things, opened the Childrens Magistrates Court when hearing youth justice matters involving repeat offenders and provided for the automatic transfer to adult correctional facilities of 17 year olds who had at least six months left to serve in detention. 
In the lead up to the 2015 general election, the elected Government also committed to reinstate court-referred youth justice conferencing, removed by the previous Government in 2012 through the Youth Justice (Boot Camp Orders) and Other Legislation Amendment Act 2012 (the Boot Camp Act). 
The Government’s commitment to repeal the 2014 amendments and reinstate court- referred youth justice conferencing is based on a substantial body of international criminological evidence which indicates that increasing the severity of punishment is a poor means of reducing recidivism. Criminological evidence shows that it is the likelihood of being apprehended and punished for an offence, rather than the severity of that punishment, which exhibits the greatest deterrent effect on offending behaviour. 
This is particularly the case with children and young people, whose neurological and cognitive development remains incomplete while they are within the age range to which the YJ Act applies. Children and young people’s cognitive immaturity significantly impedes their capacity to rationally consider the long term consequences of their actions, meaning their behaviour is likely to be more impulsive and marked by poorer decision making and greater risk taking than that of adults. This places children and young people at a heightened risk of opportunistic offending, notwithstanding increases in applicable tariffs and more onerous forms of accountability for that offending. The 2014 amendments were viewed as unduly punitive and inappropriate by the majority of stakeholders. The Legal Affairs and Community Safety Committee (LACSC) consulted widely on the 2014 amendments during its examination of the 2014 Bill. The measures implemented were not supported by any of the submitters to the Parliamentary inquiry, including the Queensland Law Society (the QLS), Bar Association of Queensland, Anti-Discrimination Commission Queensland, Queensland Council for Civil Liberties, leading church and research organisations and Amnesty International. Stakeholders, instead, urged implementation of measures to divert children and address the causes of offending. The amendments proposed in the Bill address the concerns of key stakeholders. 
In reinstating youth justice conferencing, the Bill gives effect to a key restorative justice process and an effective diversionary strategy to reducing youth offending. 
Evidence shows conferencing can, having regard to the right cohorts of offenders and circumstances, have a positive impact on a child or young person’s likelihood of reoffending. Critically, evidence also strongly shows there are direct benefits to victims from being involved in a restorative justice process. These include a reduction in post-traumatic stress symptoms, reduction in the desire for violent revenge and a heightened level of satisfaction when compared to conventional criminal justice practices. 
Research suggests restorative justice is most effectively taken up when it is legislated as a required consideration rather than on an optional basis.
The Queensland Government has also introduced the Child Protection (Mandatory Reporting-Mason’s Law) Amendment Bill 2016 (Qld), described in the Explanatory Memo as follows
Mandatory reporting laws are enacted in each Australian jurisdiction. It is broadly accepted that these laws are an important component of the broader child protection system. 
Currently in Queensland the Child Protection Act 1999 (the Act) identifies the following groups as mandatory reporters:
• a doctor 
• a registered nurse; 
• a teacher; • a police officer who works in child protection; and 
• a person engaged to perform a child advocate function under the Public Guardian Act 2014 (Qld).
Queensland and Western Australia are the only two Australian jurisdictions that do not extend mandatory reporting to the Early Childhood Education and Care sector (ECEC sector). 
Whilst previous reviews into the child protection system in Queensland have looked at the mandatory reporting provisions they have not recommended that they be expanded to include the ECEC sector. The most recent inquiry1 recommended that mandatory reporting requirements be consolidated into one provision and that a consistent approach to reporting child protection concerns be established. These changes commenced after a period of training and education on 1 January 2015. 
On 6 November 2014, the Queensland Law Reform Commission (the Commission) was requested by the then Government to review child protection mandatory reporting laws for the ECEC sector. 
The overwhelming majority of submissions received by the Commission supported extending the mandatory reporting obligation under the Act to apply to the ECEC sector. The Commission recognised ‘the protective role of the ECEC sector in relation to children aged 0–5 years, who are particularly vulnerable. Staff employed in ECEC services are in regular and direct contact with children and their families, and are well-placed to observe and report concerns that children are at risk of significant harm, thereby enabling timely intervention and the protection of children from harm’. 
It also noted that ECEC services are already subject to child protection obligations, have internal policies and procedures in place and can, and do, voluntarily report concerns to Child Safety. The Commission considered that the expansion of the mandatory reporting obligation to the ECEC sector aligned with these existing obligations. It also aligned with the increasing regulation of ECEC services and professionalisation of the workforce that has taken place in recent years.
The Commission’s report titled ‘Review of Child Protection Mandatory Reporting Laws for the Early Childhood Education and Care Sector’ was presented to Government in December 2015. It made a key recommendation that the mandatory reporting provisions in Queensland be expanded to apply to the ECEC sector. 
In accordance with the Commission’s recommendation, the objective of this Bill is to ensure that mandatory reporting obligations apply to the ECEC sector individuals identified by the Commission.  
The Commission found that extending the mandatory reporting obligation to certain individuals in the ECEC sector could be adequately addressed through appropriate training and education about the scope and content of the reporting obligation, and the provision of adequate support and resourcing to the ECEC sector to fulfil the obligation.