Juvenile Justice in New Zealand: a New Paradigm
| Author | Allison Morris,Gabrielle M Maxwell |
| Published date | 01 March 1993 |
| Date | 01 March 1993 |
| DOI | http://doi.org/10.1177/000486589302600108 |
72
AUST
&
NZ
JOURNAL
OF
CRIMINOLOGY
(March 1993) 26 (72-90)
JUVENILE
JUSTICE
IN
NEW ZEALAND:
A NEW PARADIGM
Allison Morris"
and
Gabrielle MMaxwellt
This study
describes
the system
of
juvenilejustice adopted in New Zealand under the
Children,
Young
Persons
and TheirFamilies
Act
1989.The
Act
setsout objectives and principles which
stress
a number
of
innovativefeaturesincludingthe
integration
of
a
western
and an indigenous approach;
the empowerment
of
families and young
people;
the involvement
of
victims;
and group consensus
decision-making.
The
principal mechanism for achieving these
objectives
is the Family Group
Conference which
replaces
orsupplementstheYouthCourtas theprincipaldecision-makingforum
in most
of
the more
serious
cases.
Police
involvementin decision-making is also increased bya
greater
emphasis on diversion and by their role in reaching
agreements
in the Family Group
Conference.
Research
data arepresentedwhichenable an evaluation
of
the extentto which the
Act
is meeting its
objectives.
The
tensionsin the system are discussed: particularly the issue
of
victim
involvement
versus
an offenderfocus and the conflictbetweenaccountability and
welfare.
The objectives
and
principles underlying youthjustice in NewZealand
The
Children, Young Persons
and
Their
Families
Act
1989 is probably
unprecedented
in
the
English speaking world in setting
out
in statutory
form
not
only its objects but also acomprehensive set of general principles which govern
both
State
intervention with
the
lives
of
children
and
young
persons
and
the
management
of
youth
justice.
Furthermore,
there
is no
doubt
that
some
of
these objectives
and
principles
are
unique.
The
objects aim to:
•
Promote
the
well-being
of
children, young
people
and
their
families
and
family groups by providing services which
are
appropriate to
their
needs,
accessible,
and
culturally sensitive.
•Assist families
and
kinship groups in caring for
their
children
and
young
people.
•Provide
protection
for children
and
young people.
•
Enable
young offenders to be made accountable.
•
Enhance
the
development
of
children
and
young people.
•
Deal
with issues in aculturally
appropriate
manner.
Aseries
of
general principles emphasise
the
need
to:
• Involve family,
whanau;
hapu and iwi1in decisions.
•Strengthen
and
maintain
child/family relationships.
•Consider
both
the
welfare of
the
child
and
family stability.
•Consider
the
wishes
of
the
child or young person.
•
Obtain
the
support
of
the
child
and
the
family for outcomes.
•Work in a
time
frame appropriate to
the
age
of
the
child or young person.
Specific principles governing
the
Youth Justice sections of
the
Act
emphasise
that:
*Dr
Allison
Monis,
Lecturer, Institute
of
Criminology, University
of
Cambridge, England.
tDr
Gabrielle MMaxwell,
Research
Fellow, Institute of Criminology, Victoria University of Wellington,
New Zealand.
JUVENILE JUSTICE IN NEW ZEALAND 73
• Criminal proceedings should not be used if there is an alternative means of
dealing with the matter.
• Criminal proceedings must not be used for welfare purposes.
• Young people should be kept in the community.
• Age is mitigating factor.
• Sanctions should be the least restrictive possible and should promote the
development of the child in the family.
• Due regard should be given to the interests of the victim.
• The child or young person should be protected during proceedings.
To some extent these objects and principles reflect current trends (and tensions)
in juvenile and criminal justice practice: disillusionment with aspects of a welfare
approach, the separation of welfare and justice issues, the endorsement of certain
principles of "just desserts" (that is, proportionality, determinacy and equity of
outcomes), an emphasis on accountability and responsibility, the protection of
children's and young persons' rights, a preference for diversion from formal
procedures, deinstitutionalisation and community based penalties, a shift in
resources from state agencies to the voluntary and private sector, and the use of
least restrictive alternatives. More generally, the New Zealand system attempts to
move some way towards a justice approach without abandoning the desire to achieve
positive outcomes for young people who offend.
However, the new system also reflects certain innovatory strategies: the rights and
needs of indigenous people have been taken into account; families are central to all
the decision-making processes involving their children; young persons themselves
have a say in how their offending should be responded to; victims are given a role in
negotiations over possible penalties for juvenile offenders; and the model of
decision-making advocated is by group consensus. These strategies are achieved
partly through changes in police and court processes and practice but mainly
through a new decision-making forum, the Family Group Conference (FGC), which
enables mediation between victimsand offenders, negotiation about the appropriate
penalty between the enforcement agency and the family, and the involvement of the
family and the young person in decision-making at a venue and using a procedure of
their own choice and sensitive to their culture. Before describing in more detail how
the Act's objects and principles are translated into a practical reality, we will first
elaborate these various innovatory strategies.
Integration
of
Indigenous
and
Western
Approaches
Marshall (1985:46-7) identifies features of strategies for dispute settlement in small
scale societies which differentiate them from criminal justice arrangements in
modern urbanised and industrialised societies. First, the emphasis is on consensus
and involves the whole community rather than a single individual making the
decision for the parties; second, the desired outcome is reconciliation and a
settlement acceptable to all parties rather than the isolation and punishment of the
offender; third, the concern is not to apportion blame but to examine the wider
reasons for the wrong (an implicit assumption here is that there is often wrong on
both sides); and fourth, there is less concern with whether or not there has actually
been a breach of the law and more concern with the restoration of harmony.
These features were all apparent in the methods of dispute resolution which
existed in New Zealand prior to colonisation. The early settlers believed that the
indigenous Maori people, who had arrived in New Zealand from the Pacific
Polynesian Islands before the European colonisation of 150 years ago, had no "law"
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