Children’s Court Magistrates’ Views of Restorative Justice and Therapeutic Jurisprudence Measures for Young Offenders
| Author | Kelly Richards,Lorana Bartels,Jane Bolitho |
| DOI | 10.1177/1473225416665612 |
| Published date | 01 April 2017 |
| Date | 01 April 2017 |
| Subject Matter | Articles |
https://doi.org/10.1177/1473225416665612
Youth Justice
2017, Vol. 17(1) 22 –40
© The Author(s) 2016
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DOI: 10.1177/1473225416665612
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Children’s Court Magistrates’
Views of Restorative Justice
and Therapeutic Jurisprudence
Measures for Young Offenders
Kelly Richards, Lorana Bartels and Jane Bolitho
Abstract
Restorative justice and therapeutic jurisprudence measures have recently been introduced into youth
justice systems. As gatekeepers to these measures, Children’s Court magistrates play a crucial role in their
success. However, little research has been undertaken on magistrates’ views of these measures. This article
addresses this gap by presenting results of interviews undertaken with Children’s Court magistrates in New
South Wales, Australia. Our research suggests that magistrates are enthusiastic about the philosophy of
both restorative and therapeutic measures, but are reluctant to embrace them if they consider them under-
resourced, poorly understood and/or poorly implemented. The implications of these findings are discussed.
Keywords
Children’s Court magistrates, problem-solving courts, restorative justice, therapeutic jurisprudence, youth
justice conferencing, youth offending
Introduction
In recent decades, restorative justice (RJ) and therapeutic jurisprudence (TJ) measures
have been introduced into the youth justice system in New South Wales (NSW), Australia.
Two key measures introduced in this context were youth justice conferencing (YJC),
introduced under the Young Offenders Act 1997 (NSW) (the YOA), and the Youth Drug
and Alcohol Court (YDAC), introduced in 2000 (Hannam and Crellin, 2010; Turner,
2011). While these measures are quite distinct in their aims and practice (as described
below), they can be understood as part of a broader shift towards what King (2008) has
referred to as ‘more emotionally intelligent and less adversarial approaches to resolving
legal disputes’ (p. 1096).
Corresponding author:
Kelly Richards, Queensland University of Technology, Level 5, X Block, GPO Box 2434, Brisbane, QLD 4001, Australia.
Email: k1.richards@qut.edu.au
665612YJJ0010.1177/1473225416665612Youth JusticeRichards et al.
research-article2016
Article
Richards et al. 23
A number of individual Children’s Court magistrates in Australia have expressed gen-
eral support for RJ and/or TJ measures (Grant, 2008; Hannam, 2009; cf. Potter, 2010).
However, little prior research has been undertaken on the views of Children’s Court mag-
istrates in relation to these measures. The research reported in this article begins to address
this significant gap in the literature. The research was part of a national study of Children’s
Courts in Australia about a wide range of topics (Borowski, 2013a, 2013b; Sheehan and
Borowski, 2013). The NSW component of the study included semi-structured qualitative
interviews with all 12 Children’s Court magistrates in NSW. The present article builds on
other findings from the NSW component of the national study (see Bartels et al., in press;
Fernandez et al., 2013, 2014), and presents the findings of interviews with magistrates in
the NSW Children’s Court (the NSWCC or Court) in relation to RJ and TJ in general, and
YJCs and the YDAC in particular.
This article is presented in five main parts. Section ‘Overview of the NSW Youth
Justice System’ provides an overview of the NSW youth justice system, as well as an
introduction to RJ and TJ principles and the YJC and YDAC initiatives. Section ‘Judicial
Officers’ Views on RJ and TJ Measures for Young Offenders’ presents the extant litera-
ture on judicial officers’ perceptions of RJ and TJ. Section ‘Methodology’ outlines the
methodology for the national study of Australian children’s courts, as well as the meth-
odology for the NSW component of the study, from which this article stems. Section
‘Findings’ presents the key findings from the thematic analysis of interviews with mag-
istrates in the NSWCC. Finally, Section ‘Discussion’ considers the implications of these
findings for youth justice policy in NSW. The article concludes that the scope of offences
eligible for YJCs should be expanded and the YDAC (which was abolished in 2012) be
reinstated. In addition, there should be better resourcing of, and judicial education about,
these measures.
Overview of the NSW Youth Justice System
The age of criminal responsibility in NSW (as in all Australian jurisdictions) is 10 years
(Children (Criminal Proceedings) Act 1987 (NSW): s 5; see discussion in Sheehan and
Borowski, 2013). Like most other Australian jurisdictions, the NSWCC hears criminal
matters in relation to children aged between 10 and 17 years inclusive at the time of the
alleged offence. As is also the case in other Australian states and territories (see Cunneen
et al., 2015), NSW emphasises the principle of diversion (for discussion, see Richards and
Lee, 2013; Weatherburn et al., 2012). Specifically, section 7(c) provides that ‘criminal
proceedings are not to be instituted against a child if there is an alternative and appropriate
means of dealing with the matter’. Accordingly, placing a child before the Court is clearly
presented as the option of last resort, and the YOA seeks to ensure that, where possible, a
system of warnings, cautions and youth justice conferences precede court appearances.
The NSWCC deals with the vast majority of offences alleged to have been committed
by young people that have not been resolved under the YOA, but does not have jurisdic-
tion over serious indictable offences (i.e. homicide and offences punishable by 25 years’
or life imprisonment). The Court sits in three designated courthouses located in Parramatta,
Glebe and Broadmeadow. The Court also sits on a permanent basis at non-specialist courts
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