A History of Youth Justice in New Zealand

Part I:

The last 100 years: an International Perspective

The Founding Of The First Juvenile Courts

The existence of a separate court for young offenders is relatively recent in Western legal systems. Historically, young offenders were convicted and punished as adults in adult courts, and age offered no exoneration. The justice system was characterised by the 'Classical' approach where crime was seen as a rational act of free-will. Punishment consequently focused on deterrence rather than reform and was applied equally to adults and children.

However, in the latter part of the 19th century there was an acknowledgement that children are uniquely vulnerable and a subsequent move towards child-centred, welfare-based treatment.(3) The existing court practice of granting pardons to young offenders was soon formalised in English Common Law through the doli incapax rule, (inability to do wrong). Children under seven were given immunity, and those between the ages of seven and fourteen were presumed incapable of doing wrong unless there was evidence to the contrary. Children over the age of fourteen continued to be tried and convicted as adults.

Many countries also established reformatories in recognition of the need to keep young offenders separate from adult criminals. To the same end, there was a move to establish a discrete form of prosecution for children. There is some dispute over the whereabouts of the first separate youth court. While many claim Illinois founded the first juvenile court in 1899, the State Children's Act in South Australia established one in 1895.(4) Other countries were swift to follow suit - England and Canada in 1908, France and Belgium in 1912, Hungary in 1913, Austria and Argentina in 1919, and Germany and Brazil in 1923.(5) New Zealand formally established a separate youth court in 1925.

These courts were founded on the principle that young offenders were victims of their environment and in need of help rather than punishment. This positivist approach is the basis of the 'welfare model' of youth justice, which held currency to varying degrees in most countries throughout the first half of the 20th century.

The Welfare Model

The welfare model is based on the tenet that criminal behaviour in young people results from undesirable upbringing and environment. The focus of court intervention at the beginning of the 20th century thus shifted to the care and protection of young people rather than the emphasis placed in adult courts on accountability and punishment. Young offenders were handled in the same manner of reform as neglected youths, and courts focused on their 'needs', not their 'deeds'.

The USA adopted a fairly pure form of the model, with the state acting as parens patriae, the 'stern but caring parent', and the young offender being the object of the court's benevolence. In England, New Zealand and Australia(6) this positivism was initially more subdued. In England, the 1908 Children Act formally established a separate court for juveniles, but it adopted a less welfare oriented approach than the parens patriae–style of the US courts.(7) Further measures of benevolent intervention were implemented in the ensuing years,(8) but it was the two key Labour Government White Papers in 1965 and 1968 that led to the real pinnacle of the welfare approach in England: the 1969 Children and Young Persons Act. This proposed to raise the age of criminal responsibility from ten to fourteen, phase out borstals and detention centres, replace criminal proceedings with care proceedings, and expand diversionary methods.(9) It has been argued that this legislation was influenced by the radical developments in Scotland where the 1968 Social Work Act had dispensed with juvenile courts in favour of non-criminal Children's Hearings systems.(10) Although large parts of the English 1969 Act were never implemented, it is a good indication of the prevailing strength of support for the welfare response to young offending behaviour.

These systems set up under the welfare model were a great improvement on the 'Classical system' of the 19th century; however, they were not without their problems. Even as England was passing the 1969 Act, the tide of public opinion was beginning to turn.

Critics argued that the unfettered powers of the courts ignored due process and the legal rights of the child. There was no presumption of innocence, no legal counsel, and moreover, the broad discretion given to judges allowed for class and racial discrimination in the treatment of young offenders. Furthermore, critics claimed that 'rehabilitation' was being used to justify unnecessary and significant intrusion in children's lives. The severity of a crime often had no influence on the resulting term of incarceration, as youths were kept in custody as long as necessary to effect rehabilitation. Sanctions were often indeterminate.

In 1964, Francis Allen wrote:(11)

The semantics of 'socialised justice' are a trap for the unwary. Whatever one's motivations, however elevated one's objectives, if the measures taken result in the compulsory loss of the child's liberty, the involuntary separation of a child from his family, or even the supervision of a child's activities by a probation worker, the impact on the affected individuals is essentially a punitive one. Good intentions and a flexible vocabulary do not alter this reality…. We shall escape much confusion here if we are willing to give candid recognition to the fact that the business of the juvenile court inevitably consists, to a considerable degree, in dispensing punishment.

Concurrent with this censure, many countries also experienced public panic over a 'juvenile crime wave'. There was a feeling that the welfare model was not living up to its promises, it was too permissive and it was failing to hold young offenders accountable. There was a fear that the system was unable to deal with persistent offenders and, in the interests of public protection, many advocated a return to deterrent retributive models.

With such agitation and criticism, many countries revamped their youth justice policies to allow for accountability and due process. The systems adopted in most countries can be seen to be founded on the 'justice model'.

The Justice Model

The justice model is often posited at the opposite end of the justice spectrum from the welfare model. It promotes accountability, determinate sentences relative to the offence, respect for the legal rights of young people, and the establishment of more formal procedures. In some respects the justice model is an inversion of welfare ideals, focusing on: offending, not the offender; responsibility and free will, not determinism; equality of sanction, not individual treatment; and determinate sanctions rather than indeterminate rehabilitation.(12)

The emergence of the justice model at that time has been associated with the collapse of the post-war economic boom.(13) While prosperity cultivated optimism and 'rehabilitative philanthropy', (the belief in the inherent good of people), the recession and resulting loss of funds to pay for rehabilitation programmes led to calls for a return to 19th century classicism.

This 'back to justice' movement formed the basis of reform in the latter half of the 20th century in a number of countries. While Scotland and Northern Ireland continued their welfare-focused regimes, others dramatically changed their philosophy.

In the United States, the move was spear-headed in the late 1960s by a number of landmark decisions in the Supreme Court,(14) which advocated due-process criminal-style proceedings in youth courts. In the 1970s influential reports were drafted to the government that further supported a return to justice.

While the justice model was seen in its purest form in U.S. legislation,(15) elements of the approach became evident in many other countries. In England the 1982 Criminal Justice Act focused on the importance of accountability and due process and represented a clear ideological shift away from the 1969 Act.(16) In Canada, the 1908 Canadian Juvenile Delinquents Act was attacked as early as 1965 in a report to the government that advocated limiting youth courts' powers, and protecting children's legal rights. This influenced the Canadian 1984 Young Offenders Act that eventually replaced the 1908 legislation.

However, the justice model, too, has its critics.(17) The key concern is the lack of substantive justice. Many argue that deliberately ignoring the causes of the crime, especially issues of social disadvantage, and placing importance on equal punishment can lead to injustice in itself.

In reality, of course, no system operates on a pure model and they are rather influenced by a number of philosophies. However, it is useful to understand the philosophical shift in justice paradigms that occurred internationally and provided the setting for the gestation of the 1989 Act in New Zealand.