Forgetting Our Rights Obligations?

Has Bill English forgotten that we are signatories of the United Nations Convention for the Rights of the Child (UNCRC)? The National Party’s Youth Justice Policy Announcement, released on 13 August 2017, appears to indicate so.

While the focus has so far been on the plan to dispatch young offenders off to boot camp (and that is a dumb idea, mostly because all the international evidence shows that it does not work), I want to call attention to the various ways the policy will remove several basic human rights for young people coming into contact with criminal justice agents, as well as  worsen the disproportionality of young Maori in our youth justice system.

In other words, I want to highlight the extraordinary injustices this policy will bring about, using the Government’s own “three strikes” policy as a framework. And why not, given the Government will be an offender in the eyes of international law, if indeed National is the government after September’s election and this policy is put into effect.

The aim of the National Party’s policy, as stated in its press release, is for New Zealanders to be safe in their homes, at work and on the streets. Nothing wrong with that. However, this policy appears to hold just 150 of our young people accountable for that safety, with no consideration of their status as members of our society, who have rights of their own, and who often are the victims of all sorts of atrocities themselves.

The Government has, then, divided New Zealanders into two distinct groups, and placed the rights of one group (say, “ordinary New Zealanders”, whoever they are) ahead of the other group (“young and highly vulnerable New Zealanders”, who have offended against the law).

Article 3(1) of the UNCRC, however, states: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

When we consider that a child is defined in the UNCRC as someone under 18 years of age, and this policy relates to those 14-17, this is Strike one.

Moreover, the National Party’s policy proposes to give police, and officials in the Ministry for Vulnerable Children, power to detain young people designated as Youth Serious Offenders (YSOs), including when transporting them, and place tougher penalties on young offenders who abscond from custody.

It will also increase the youth court jurisdiction for YSOs to serve up to 12 months in a youth justice facility as well as 18 months of community supervision once released. Moreover, there will be no early release for YSOs who are in youth justice facilities.

Yet, Article 37(b) of the UNCRC states that the detention of a child should only be used as a measure of last resort (i.e. after other avenues have been exhausted) and should be as least restrictive as possible and for the shortest appropriate time. Strike two (and three, and four and five).

The National Party’s policy specifies that judges may override the criteria that police are bound by in deciding who might be considered an YSO. However, Article 40 (3v) of the UNCRC states that young people have the right to have such decisions and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law. I didn’t see anything to this effect in National’s policy. Strike Six.

The National Party’s policy also removes the requirement for police to give warnings to YSOs before arresting them and/or returning them to court.

Yet Article 37 (b) (that niggly little article) states that, like detention, the arrest of a young person “shall be used only as a measure of last resort”. Surely, then, a warning would come first?

Strike seven.

Further, the National Party’s policy will remove the eligibility for YSOs to be referred to family group conferences.

Yet Article 40 (3b) requires that state parties promote the establishment of measures for dealing with children who have committed offences without resorting to judicial proceedings. Strike eight.

For young Maori, especially, this policy spells havoc.

Earlier this year, the Ministry of Justice released figures that show that while the number of young people charged in court has decreased for all gender, age and ethnic groups over the past five years, there was a 9 per cent increase in charges of young Maori between 2015 and 2016. National’s policy relies on discretion to override any grey areas. But discretion isn’t the answer. The Children’s Commissioner,  Judge Andrew Becroft, regularly observed young Maori being treated more harshly than their non-Maori counterparts for the same offences by YJS personnel while in his former role as New Zealand’s Principal Youth Court Judge (Becroft, cited in RNZ, 2016, July 19). Discretion provides a convenient mask for the exercise of bias, however unconscious that bias might be.

In 2016, the UN Commission on the Rights of the Child noted its concerns about the disproportionate numbers of young Maori coming into contact with our youth justice System. How, exactly, does this policy address that concern?

Last year, the National Government made the move toward including 17 year olds within the Youth Court’s jurisdiction, finally addressing New Zealand’s longstanding breach of the UNCRC in this respect.

It’s appalling that, if National gets back into power, we’ll go straight back to contravening international law with respect to youth justice. It’s doubly appalling that young people will be at the brunt of this.

Sarah Monod de Froideville is a lecturer in Criminology at Victoria University of Wellington. She teaches in the areas of youth and crime, and crimes against the environment. This piece was first published in The Dominion Post, 15 August 2017.

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