On 25 February 2021, the Queensland State Government announced that they were pushing for a comprehensive set of reforms to the Youth Justice Act 1999 that would “target hardcore youth criminals who repeatedly offend and put the community at risk”. The reforms introduced to Parliament came just weeks after a teen recidivist was charged with murdering Kate Leadbetter and Matt Field.
The police have welcomed the changes they say are targeted at the hardcore repeat offenders who were frequently and repeatedly putting their communities at risk but many child advocacy groups argue that the reforms are simply setting the most at-risk children up to fail.
Legal Insight talks to James Benjamin, Barrister and newest author for Summary Offences Queensland about the changes and the implications and potential issues that could arise following the commencement of the reforms.
The changes to the Youth Justice Act
There were many changes implemented by the commencement of the Youth Justice and Other Legislation Amendment Act 2021 on 30 April 2021 such as the enhancement of police powers to use metal detecting wands to target knife crime, the strengthening of “anti-hooning” laws in relation to vehicle related offences and the insertion of two new sentencing principles into s 150 of the Youth Justice Act 1999. However, James considers the modification of the bail laws relating to children to be the primary change and one that will have far-reaching implications.
Firstly, the current bail framework’s prohibition on “the use of electronic devices for monitoring children on bail” has been amended to remove this blanket restriction. James does stress that the change is only applied to the courts and “police officers releasing children on bail are still prohibited from instituting electronic monitoring.”
Secondly, a new section 48AF has been inserted to create a presumption against bail for a limited class of youth offenders and will be applicable to both courts and police officers. This is significant as previously, “no children were in a show cause position and therefore all were entitled to the presumption in favour of bail,” says James.
Finally, the reforms add a further consideration to the existing list that courts and police officers may have regard to when making particular decisions about the release and bail of children: whether there is a parent or some other person willing to support the child to comply with bail conditions and notify the authorities if the child breaches or may be at risk of breaching any condition.
What practitioners must be aware of
James advises practitioners to familiarise themselves with the list of offences that fall within the definition of “prescribed indictable offence” that has been inserted into the dictionary as the definition “has application in both the show cause and electronic monitoring regimes.”
“The list includes life offences, any offence for which an adult would be facing a maximum penalty of 14 years or higher (except for any offence under the Drugs Misuse Act 1986 carrying a maximum penalty of 15 years) and a list of specific offences under the Criminal Code.”– James Benjamin, Barrister and newest author for Summary Offences Queensland
As these offences are different from those considered “serious offences” under s 8, he warns that “careful attention will be required to ensure that the monitoring and show cause provisions are being used correctly.”
The implication of the changes and potential issues
James reasons that it is only logical to expect an increase in remand numbers whenever changes are made to increase the burden on an applicant for bail to show why they should be released.
“This will mean further pressure on the capacity of detention centres. There is the real possibility, too, of offenders spending longer in custody on remand than they might otherwise be sentenced to.”– James Benjamin, Barrister and newest author for Summary Offences Queensland
He also observes that, as the court must obtain a suitability report from the chief executive of the department before the court can order the use of a monitoring device, it “may further delay decisions about bail, putting further pressure on remand numbers, at least in the short term.”
Further, James notes that there is a dichotomy between the court’s consideration of whether the child has a parent or some other person who can support them and monitor their compliance with bail conditions and s 48AA(6) which “prohibits a court or police officer from deciding that there is an unacceptable risk of failing to appear, reoffending or interfering with witnesses or from refusing bail solely because the child has no apparent family support or accommodation.”
The objections and the silver lining
From the time the reforms were first introduced in Parliament to the commencement of the amendments, there have been objections voiced by numerous advocacy groups including Amnesty, Child Wise and the Human Rights Commissioner.
They contend that, not only will these changes not reduce youth offending and “funnel more children and young people into police watch houses and detention”, but they would disproportionately affect Aboriginal and Torres Strait Islander young people. They believe that juvenile offending would not cease unless there was holistic support that treated the underlying causes instead of instigating a knee-jerk response that begins “a war on kids”. Amnesty has even intimated that “[e]lectronic monitoring devices would interfere with a child’s right to privacy” while doing nothing to prevent crime.
Nevertheless, James is optimistic that “only a very small cohort of child defendants would be eligible to be considered for such a bail condition” given the way the amendments ended up. He highlights the fact that a child defendant would have to be:
- at least 16 years old;
- charged with a “relevant indictable offence”;
- previously convicted of an indictable offence; and
- both live in and be before a court that is located in a prescribed geographical area,
before the court can even consider imposing a monitoring device condition.
In addition, it is noteworthy that the s 52AA has had a sunset clause written into it which is designed to expire the provision two years after commencement and is clearly intended to provide enough time for the government to conduct an evaluation of the operation of the provision.
Advocacy groups have long been calling for the focus to shift to re-engagement and alternative learning programs and the diversion of suitable children and young people to such programs. Given that chronic offending has statistically been concentrated in more socially disadvantaged areas of regional and remote Queensland, the groups have also been pleading for funding for intervention programs to divert vulnerable children from the justice system.
However, despite the protests and concerns, the Queensland government has pushed through the reforms. Perhaps with the inbuilt expiry, the government will have allowed itself sufficient time to gather evidence and build a program that will effectively mesh tough measures for the recidivists with a community-based alternative action for young offenders.