CRIMINAL INVESTIGATION PROCESS

 Discuss the powers of the police in the criminal process

 Assess the effectiveness of the criminal investigation process as a means of achieving
justice
Terrorism Legislation Amendment (Police Powers and Parole) Act 2017 reformed Terrorism
(Police Powers) Act 2002 (NSW). Allows Commissioner of Police to declare that an incident to
which police are responding is, or is likely to be, a terrorist act. Police then able to take pre-
emptive action against terrorists – including use of lethal force.

+ NSW Police to have more shooting powers to fight terrorism (SMH, 2017) – Premier Gladys
Berejiklian – “We will have the strongest laws in the nation and possibly the world” – dealing
with non-compliance by terrorism offenders. Efficient – places less onus on police snipers to
determine whether imminent risk to safety. Police officers who use force in circumstances will
not incur criminal liability where they act in good faith.

+ Responsive to recommendations made after coronial inquest into 2014 Lindt Café siege in
Sydney. Recommended laws be introduced that provided certainty as to what standards police
must comply with when using lethal force.

+ Responsive to 2017 siege in Melbourne in which gunman Yacqub Khayre was ultimately shot
dead by police – deal with non-compliance in way that arguably meets values and expectations
of society.

- Lethal force laws introduced to NSW Parliament criticized by the Greens (ABC News, 2017) –
Greens and NSW Law Society argued law a threat to civil liberties. Greens MP David Shoebridge
– concerns police protected by law even if shoot someone who was not the suspected terrorist.
NSW Law Society President – law “justify lethal force by police on citizens without there
necessarily being terrorist-related incident occurring.”

- Despite punishing non-compliance – unintended consequences do not achieve justice for

community
NON-LEGAL – Media

 Use of evidence, including witnesses – WHOLE

Evidence Amendment Act 2007 – Children and vulnerable witnesses – narrative form rather
than Q&A. CCTV, partition. Unrepresented defendant cannot personally question.
-----------------------------------------------------Fitzgerald V R [2014] HCA – convicted of murder based
on DNA evidence – life sentence with non-parole 20y. DNA sample found on didgeridoo could
have been transferred through co-accused, who had shaken his hand before attack. ACQUITTED
Questions raised over DNA evidence to secure murder convictions (ABC News, 2014) –
Fitzgerald’s Solicitor Matthew Selley – “All conditioned to CSI effect… we all assume DNA is an
infallible proof of a crime.”
University of Indianapolis 2015 study – Participants shook hands before handling knives. 85%–
DNA of person who did touch knife showed up.

Evidence Amendment (Evidence of Silence) Act 2013 (NSW) amended the Evidence Act 1995
(NSW). Right to silence modified in relation to serious indictable offences. Juries able to draw
an adverse inference if an accused remains silent during police questioning, then attempts to
rely on new evidence/info during the trial that was not initially raised with police.
+ Compliance improves efficiency of criminal trial process – accused encouraged to provide all
available info relevant to defence at earliest opportunity, reducing chance of surprise evidence
introduced at trial – improve resource efficiency of court and increase chance of justice.
+ Effectively respond to crimes related to Outlaw Motorcycle Gangs (OMCGs) – non-compliance
- Compliance with reform unfairly targets vulnerable suspects – nervous, non—English
speaking, affected by drugs and alcohol, disabilities that prevent full understanding of police
instructions or initially providing all relevant information.
- NSW right to silence amendments remain untested and should be removed (Law Society of
NSW media release 2015) NSW Law Society – ‘an attack on fundamental rights’ – diminishing
long standing right to silence.
- Requirement – police caution given in presence of accused’s lawyer – rise to unintended
consequences. Lawyers avoiding police stations – clients can avoid receiving warning. Mean
new law reform may not apply to client, client’s access to legal representation and therefore
justice is being unfairly limited. Increase in police investigation times – resource efficiency
problems. Right to silence law drives lawyers not to show up for clients at police stations (SMH,
2015) – Call for review and reform of law by President of Police Association NSW Scott Weber.
NON-LEGAL – Media
 CRIMINAL TRIAL PROCESS
 Discuss the role of courts in the criminal trial process
 Discuss the use of the adversary system as a means of achieving justice

Criminal Procedure Act 1986 (NSW) - Accused can elect to be tried by judge alone in 1990 – if
consented to by DPP – regularly declined
Courts and Crimes Legislation Further Amendment Act 2010 (NSW) - Can apply to court if
rejected by DPP – consented to if deemed to be in interests of justice. Court may refuse if
decide factual issue in case requires application of objective community standards
(reasonableness).
+ Prevents accused verdict being decided in accordance with emotions and influences from
media R V Gittany (2013) – judge-alone trial - level of media coverage and publicity covering
case in which he was accused of murdering girlfriend – made likelihood of fair trial by jury
extremely low.
+ Simon Gittany and the case for judge only trials (ABC NEWS, 2013) - NSW Supreme Court
judge Peter McLellan - Avoids certain limitations of juries - lack of understanding of technical
legal terms and information in complex cases.
+ Governor of Western Australia McCusker – Judge-alone trials only possible way of ensuring
transparency in trial process – juries not permitted to provide reasons for decisions.
– NSW Council of Civil Liberties – opposes increasing use – juries essential to represent values,
standards and diversity of community.
NON-LEGAL – Media, NSWCCL (New South Wales Council for Civil Liberties)

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 – commenced 30 April
2018 – REFORMED Crimes (Sentencing Procedure) Act 1999 (NSW). Berejiklian government’s
‘Tough and Smart Justice – Safer Communities’ packet of reforms. Transform operation of
criminal trial process.
Fixed guilty plea discount scheme for indictable offences based on timing of plea.
25% discount - before committal in Local Court. 10% - up to 14 days before first day of trial.
5% - all other instances. Maximum – judges retain discretion to provide no sentencing discount
(or lesser) in ‘extreme culpability’.
+ BOCSAR findings – average time taken for case to be resolved in NSW District Court - 716
days. Director Don Weatherburn – “no doubt” justice system “highly stressed” – alleviated by
encouraging offenders to plead guilty at earliest opportunity.
+ Responsive to 2014 NSW Law Reform Commission Report – recommended discounts
introduced to prevent delays and backlog of thousands of criminal cases.
Former judge backs plan to stem ‘tsunami’ of criminal cases in NSW (SMH, 2017) – Previously
received sentence discount of up to 25% regardless of time of guilty plea. 23% not entered until
day of trial.
- Not addressing underlying issues causing delays and inefficiencies in criminal trial process.
NSW’s top lawyers not convinced guilty plea reforms will clear court backlogs (ABC News, 2017)
NSW Bar Association – CJS ‘close to breaking point’ – reform will not address issue. What will:
Senior vice president – ‘significant increase in Legal Aid funding and more judges on District
Court.
NON-LEGAL – Media, NSWBA (New South Wales Bridge Association)

Evidence Amendment (Evidence of Silence) Act 2013 (NSW) amended the Evidence Act 1995
(NSW). Right to silence modified in relation to serious indictable offences. Juries able to draw
an adverse inference if an accused remains silent during police questioning, then attempts to
rely on new evidence/info during the trial that was not initially raised with police.
+ Compliance improves efficiency of criminal trial process – accused encouraged to provide all
available info relevant to defence at earliest opportunity, reducing chance of surprise evidence
introduced at trial – improve resource efficiency of court and increase chance of justice.
+ Effectively respond to crimes related to Outlaw Motorcycle Gangs (OMCGs) – non-compliance
- Compliance with reform unfairly targets vulnerable suspects – nervous, non—English
speaking, affected by drugs and alcohol, disabilities that prevent full understanding of police
instructions or initially providing all relevant information.
- NSW right to silence amendments remain untested and should be removed (Law Society of
NSW media release 2015) NSW Law Society – ‘an attack on fundamental rights’ – diminishing
long standing right to silence.
- Requirement – police caution given in presence of accused’s lawyer – rise to unintended
consequences. Lawyers avoiding police stations – clients can avoid receiving warning. Mean
new law reform may not apply to client, client’s access to legal representation and therefore
justice is being unfairly limited. Increase in police investigation times – resource efficiency
problems. Right to silence law drives lawyers not to show up for clients at police stations (SMH,
2015) – Call for review and reform of law by President of Police Association NSW Scott Weber.
NON-LEGAL – Media
  Examine the role of legal representation in the criminal trial

Evidence Amendment (Evidence of Silence) Act 2013 (NSW) amended the Evidence Act 1995
(NSW). Right to silence modified in relation to serious indictable offences. Juries able to draw
an adverse inference if an accused remains silent during police questioning, then attempts to
rely on new evidence/info during the trial that was not initially raised with police.
+ Compliance improves efficiency of criminal trial process – accused encouraged to provide all
available info relevant to defence at earliest opportunity, reducing chance of surprise evidence
introduced at trial – improve resource efficiency of court and increase chance of justice.
+ Effectively respond to crimes related to Outlaw Motorcycle Gangs (OMCGs) – non-compliance
- Compliance with reform unfairly targets vulnerable suspects – nervous, non—English
speaking, affected by drugs and alcohol, disabilities that prevent full understanding of police
instructions or initially providing all relevant information.
- NSW right to silence amendments remain untested and should be removed (Law Society of
NSW media release 2015) NSW Law Society – ‘an attack on fundamental rights’ – diminishing
long standing right to silence.
- Requirement – police caution given in presence of accused’s lawyer – rise to unintended
consequences. Lawyers avoiding police stations – clients can avoid receiving warning. Mean
new law reform may not apply to client, client’s access to legal representation and therefore
justice is being unfairly limited. Increase in police investigation times – resource efficiency
problems. Right to silence law drives lawyers not to show up for clients at police stations (SMH,
2015) – Call for review and reform of law by President of Police Association NSW Scott Weber.
NON-LEGAL – Media

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 – commenced 30 April
2018 – REFORMED Crimes (Sentencing Procedure) Act 1999 (NSW). Berejiklian government’s
‘Tough and Smart Justice – Safer Communities’ packet of reforms. Transform operation of
criminal trial process.
Fixed guilty plea discount scheme for indictable offences based on timing of plea.
25% discount - before committal in Local Court. 10% - up to 14 days before first day of trial.
5% - all other instances. Maximum – judges retain discretion to provide no sentencing discount
(or lesser) in ‘extreme culpability’.
+ BOCSAR findings – average time taken for case to be resolved in NSW District Court - 716
days. Director Don Weatherburn – “no doubt” justice system “highly stressed” – alleviated by
encouraging offenders to plead guilty at earliest opportunity.
+ Responsive to 2014 NSW Law Reform Commission Report – recommended discounts
introduced to prevent delays and backlog of thousands of criminal cases.
Former judge backs plan to stem ‘tsunami’ of criminal cases in NSW (SMH, 2017) – Previously
received sentence discount of up to 25% regardless of time of guilty plea. 23% not entered until
day of trial.
- Not addressing underlying issues causing delays and inefficiencies in criminal trial process.
NSW’s top lawyers not convinced guilty plea reforms will clear court backlogs (ABC News, 2017)
NSW Bar Association – CJS ‘close to breaking point’ – reform will not address issue. What will:
Senior vice president – ‘significant increase in Legal Aid funding and more judges on District
Court.
NON-LEGAL – Media, NSWBA (New South Wales Bridge Association)

Defence of mental illness is a complete defence to any criminal offence – not criminally
responsible for actions due to mental incapacitation. Expert evidence (witnesses) can be
presented in court to help establish defence. Section 38 Mental Health (Forensic Provisions) Act
1990 (NSW) – requires special verdict of not guilty by reason of mental illness delivered by
court if defence of insanity proven. However, does not provide definition of mental illness –
reference to case law – requirements for mental illness M’Naughten’s Case (1843)
o Accused had defect of reason due to disease of mind
o As result, accused either did not understand nature of act, or that what doing was
wrong
+ Recognizes unjust to punish offender for non-compliance with criminal law if do not have
necessary mental capacity to understand consequences of actions. Seen in R v Fernando (2011)
– chronic or paranoid schizophrenia – joined Sydney Pistol Club to access gun and training use
to shoot her husband in hopes of relieving self of paranoid delusions. Defence and prosecution
agreed that expert evidence showed finding of not guilty due to mental illness appropriate.
+ Seen in recent case R v Tannous (2016) – murdered wife due to delusional fear she was
cheating on him. Expert evidence from forensic psychiatrist – diagnosed Tannous with major
psychotic disorder referred to as delusional or morbid jealousy. Both defence and prosecution
agreed. Found not guilty of murder by reason of mental illness.
Meet needs of society, balance rights, address and respond to issues of non-compliance and
achieve justice – recognizes some crimes are committed due to mental condition rather than
malicious intent. Prosecution can use discretion to agree when appropriate for defence of
mental illness to be relied upon.
- How the insanity defence against a murder charge works (The Conversation, 2015) – very few
individuals successfully raised defence of mental illness – BOCSAR reported defence
successfully applied only 29 times in 2011-12.
M’Naughten decision dates from 1843 – does not use current medical terminology or scientific
definition – ‘disease of the mind’ insulting to people with mental health issues. NSW Law
Reform Commission noted in Report 138 “Criminal Responsibility and Consequences” (138) that
M’Naughten at ‘time when knowledge of human psychology was far less developed’.
NSW Law Reform Commission Report 138 “Criminal Responsibility and Consequences” (138) –
recommended Mental Health (Forensic Provisions) Act 1990 (Cth) amended to include statutory
test for defence of ‘mental health or cognitive impairment’ – promote clarity of law and remove
ambiguities of old test. Reflects greater understanding of mental illness than existed in 1843, as
widen operation of defence by including option of offender knowing nature of their act and
that it was wrong, but not being able to control it.
Also made recommendations for the care and management of persons under the Act.
Under current law, people who are found ‘not guilty by reason of mental illness’ may be
detained indefinitely or until court is satisfied that members of public will not be harmed by
their release. NSW Law Reform Commission – potential for indefinite detention has arguably
resulted in people being deterred from using the defence. Therefore, not effective option for
offenders who failed to comply with criminal law due to mental illness.
AHRC argued indefinite detention of people with mental illness may actually breach Australia
obligations under Convention on Rights of Persons with Disabilities 2006 (Disability Convention)
NON-LEGAL: Media, AHRC (Australian Human Rights Commission)
  Assess the use of defences to criminal charges in achieving justice

Provocation is a partial defence to murder.

Crimes Amendment (Provocation) Act 2014 amended Crimes Act 1900 (NSW).
Raising standard of what considered provocative conduct – ‘extreme provocation’ – partial
defence when responding to deceased conduct of serious indictable offence – accused lose self-
control. Non-violent sexual advances cannot amount to provocation.
+ Responsive to uproar R V Singh (2012) – non-parole term of 6 years, manslaughter – provoked
by wife’s adultery and fear of deportation - spousal-support visa.
+ No longer relied upon if experience an unwanted homosexual advance – ‘gay panic’ defence.
Green v The Queen [1997] – Murder of Gillies - made sexual advance made – ‘sexual aggressor’
– reasonable to respond in such manner. Higher standard of responsibility for conduct of
accused.
- Victims of domestic violence unable to rely upon newly reformed defence – murder partner
due to ‘slow burn’ effect of ongoing domestic violence – may not be responding to serious
indictable offence. Push for defence for women who kill violent men (SMH, 2014) - UNSW
Professor Julie Stubbs ‘damaging for battered women’
- ‘Gay panic’ defence not removed until 2014
NON-LEGAL – Women’s Legal Services NSW – Independent non-profit organisation – voice for
women in NSW, particularly socio-economically disadvantaged. Submissions to Parliament
about proposed amendment and initially applauded reform.
Concerns about effect of reform on victims of domestic violence who ultimately kill partners
can no longer rely on. Advocates for comprehensive review of homicide defences to ensure
victims’ rights protected. Cannot directly reform law.

Defence of mental illness is a complete defence to any criminal offence – not criminally
responsible for actions due to mental incapacitation. Expert evidence (witnesses) can be
presented in court to help establish defence. Section 38 Mental Health (Forensic Provisions) Act
1990 (NSW) – requires special verdict of not guilty by reason of mental illness delivered by
court if defence of insanity proven. However, does not provide definition of mental illness –
reference to case law – requirements for mental illness M’Naughten’s Case (1843)
o Accused had defect of reason due to disease of mind
o As result, accused either did not understand nature of act, or that what doing was
wrong
+ Recognizes unjust to punish offender for non-compliance with criminal law if do not have
necessary mental capacity to understand consequences of actions. Seen in R v Fernando (2011)
– chronic or paranoid schizophrenia – joined Sydney Pistol Club to access gun and training use
to shoot her husband in hopes of relieving self of paranoid delusions. Defence and prosecution
agreed that expert evidence showed finding of not guilty due to mental illness appropriate.
+ Seen in recent case R v Tannous (2016) – murdered wife due to delusional fear she was
cheating on him. Expert evidence from forensic psychiatrist – diagnosed Tannous with major
psychotic disorder referred to as delusional or morbid jealousy. Both defence and prosecution
agreed. Found not guilty of murder by reason of mental illness.
Meet needs of society, balance rights, address and respond to issues of non-compliance and
achieve justice – recognizes some crimes are committed due to mental condition rather than
malicious intent. Prosecution can use discretion to agree when appropriate for defence of
mental illness to be relied upon.
- How the insanity defence against a murder charge works (The Conversation, 2015) – very few
individuals successfully raised defence of mental illness – BOCSAR reported defence
successfully applied only 29 times in 2011-12.
M’Naughten decision dates from 1843 – does not use current medical terminology or scientific
definition – ‘disease of the mind’ insulting to people with mental health issues. NSW Law
Reform Commission noted in Report 138 “Criminal Responsibility and Consequences” (138) that
M’Naughten at ‘time when knowledge of human psychology was far less developed’.
NSW Law Reform Commission Report 138 “Criminal Responsibility and Consequences” (138) –
recommended Mental Health (Forensic Provisions) Act 1990 (Cth) amended to include statutory
test for defence of ‘mental health or cognitive impairment’ – promote clarity of law and remove
ambiguities of old test. Reflects greater understanding of mental illness than existed in 1843, as
widen operation of defence by including option of offender knowing nature of their act and
that it was wrong, but not being able to control it.
Also made recommendations for the care and management of persons under the Act.
Under current law, people who are found ‘not guilty by reason of mental illness’ may be
detained indefinitely or until court is satisfied that members of public will not be harmed by
their release. NSW Law Reform Commission – potential for indefinite detention has arguably
resulted in people being deterred from using the defence. Therefore, not effective option for
offenders who failed to comply with criminal law due to mental illness.
AHRC argued indefinite detention of people with mental illness may actually breach Australia
obligations under Convention on Rights of Persons with Disabilities 2006 (Disability Convention)
NON-LEGAL: Media, AHRC (Australian Human Rights Commission)
  Evaluate the effectiveness of the jury system in criminal justice system

Evidence Amendment (Evidence of Silence) Act 2013 (NSW) amended the Evidence Act 1995
(NSW). Right to silence modified in relation to serious indictable offences. Juries able to draw
an adverse inference if an accused remains silent during police questioning, then attempts to
rely on new evidence/info during the trial that was not initially raised with police.
+ Compliance improves efficiency of criminal trial process – accused encouraged to provide all
available info relevant to defence at earliest opportunity, reducing chance of surprise evidence
introduced at trial – improve resource efficiency of court and increase chance of justice.
+ Effectively respond to crimes related to Outlaw Motorcycle Gangs (OMCGs) – non-compliance
- Compliance with reform unfairly targets vulnerable suspects – nervous, non—English
speaking, affected by drugs and alcohol, disabilities that prevent full understanding of police
instructions or initially providing all relevant information.
- NSW right to silence amendments remain untested and should be removed (Law Society of
NSW media release 2015) NSW Law Society – ‘an attack on fundamental rights’ – diminishing
long standing right to silence.
- Requirement – police caution given in presence of accused’s lawyer – rise to unintended
consequences. Lawyers avoiding police stations – clients can avoid receiving warning. Mean
new law reform may not apply to client, client’s access to legal representation and therefore
justice is being unfairly limited. Increase in police investigation times – resource efficiency
problems. Right to silence law drives lawyers not to show up for clients at police stations (SMH,
2015) – Call for review and reform of law by President of Police Association NSW Scott Weber.
NON-LEGAL – Media

Historically, jury system in NSW had to be unanimous (all 12 jurors must agree).
Jury Amendment (Verdicts) Act 2006 (NSW) amended Jury Act 1977 (NSW) to allow for majority
verdicts. After at least 8 hours and cannot all agree – 11/12 sufficient.
+ Compliance – aim to improve resource efficiency and effectiveness of criminal trials by
reducing amount of ‘hung juries’
+ Judge must be satisfied that jury would not reach unanimous verdict if given more time –
judge has discretion as to when to allow a majority verdict to be applied in a case
- Could affect whether justice achieved for accused – eroded right to have guilt unanimously
determined – accused has less rights than previously entitled to. When introduced in 2006,
NSW Law Reform Commission – recommended reform not occur ‘preferable in interests of
justice that trial concludes with hung jury rather than unsafe verdict’
- BOCSAR report - improvement in resource efficiency due to majority verdicts would only be
1.1% saving of court time
- Case law - problems with compliance – Hunt v The Queen (2011) – decided judge made error
during trial by informing jury of process for majority verdicts well before 8 hours of deliberation
expired. Jury not encouraged to keep deliberating to see if unanimous verdict could be
achieved – encouraged to wait until 8-hour time frame had elapsed – ‘miscarriage of justice’.
NON-LEGAL: Media

Criminal Procedure Act 1986 (NSW) - Accused can elect to be tried by judge alone in 1990 – if
consented to by DPP – regularly declined
Courts and Crimes Legislation Further Amendment Act 2010 (NSW) - Can apply to court if
rejected by DPP – consented to if deemed to be in interests of justice. Court may refuse if
decide factual issue in case requires application of objective community standards
(reasonableness).
+ Prevents accused verdict being decided in accordance with emotions and influences from
media R V Gittany (2013) – judge-alone trial - level of media coverage and publicity covering
case in which he was accused of murdering girlfriend – made likelihood of fair trial by jury
extremely low.
+ Simon Gittany and the case for judge only trials (ABC NEWS, 2013) - NSW Supreme Court
judge Peter McLellan - Avoids certain limitations of juries - lack of understanding of technical
legal terms and information in complex cases.
+ Governor of Western Australia McCusker – Judge-alone trials only possible way of ensuring
transparency in trial process – juries not permitted to provide reasons for decisions.
– NSW Council of Civil Liberties – opposes increasing use – juries essential to represent values,
standards and diversity of community.
NON-LEGAL – Media, NSWCCL (New South Wales Council for Civil Liberties)
 SENTENCING AND PUNISHMENT
 The role of the victim in sentencing appeals
 Discuss factors that affect sentencing decisions, including purposes of punishment and
the role of the victim

Forum sentencing - Alternative sentencing option operating at selected NSW Local Courts.
Restorative justice program. Focus - rehabilitation of offenders, reconciliation through
facilitated meeting between victim and support people, offender and their support people,
police and other people affected by crime to discuss offence and impact on victim and others.
Available under Criminal Procedure Regulation 2010 – regulation under Criminal Procedure Act
1986 (NSW). Program strengthened through law reform - Criminal Procedure Amendment
(Forum Sentencing Intervention Program) Regulation 2014. Participated in by those likely to
receive prison sentence, community service order or good behaviour bond. Not available for
more serious offences.
+ Respect rights of victims by giving them voice in sentencing process – only undertaken if
victim of offender wishes to participate. Chance to discuss impact offence on lives – help
offender understand consequences.
+ Encourage rehabilitation and reduce recidivism through creation and implementation of
Intervention Plan – may include apology/payment of reparations to victim, work for
victim/community, participation in relevant education or rehabilitation program etc. (Properly
address offending behaviour and reintegrate into community). Successful completion of Plan
may reduce sentence issued by Magistrate, or also used as part of actual sentence issued.
- Rates of recidivism among offenders referred to Forum Sentencing (BOCSAR 2013) – forum
sentencing no more effective than the courts in reducing recidivism. Don Weatherburn –
“Although restorative justice programs well-liked by those who participate in them, not much
hard evidence they reduce re-offending.”
- NSW Forum Sentencing overhaul after study finds it does not deter offenders (ABC News,
2013) Don Weatherburn – program does not target risk factors ‘drug and alcohol abuse,
intellectual disability and mental health problems’
NON-LEGAL - Youth on Track Scheme – 2013. Aim - produce holistic case management of young
people at risk of entering CJS. Case management undertaken by NGOs. Addresses underlying
issues may be affecting young people – increase compliance.
Youth on track program keeps kids off police radar (Sydney Morning Herald, 2015) –
Recent BOCSAR evaluation of scheme found over 90% of participants decreased formal contact
with police and juvenile system
Children’s Court Act 1987 (NSW) amended through 2015 introduction of ‘Practice Note’ –
established pilot Youth Koori Court in Parramatta NSW, and Surry Hills in 2018.
Youth Koori Court – alt approach to managing cases involving young Indigenous offenders- aim
to reduce incarceration and recidivism among of Indigenous youth. Approx. 60% y/o
Indigenous. Indigenous elders, family and friends, youth workers and FACS representatives –
informal setting devise individual action and support plant to address offending behaviour over
6-12 months before sentencing. Compliance with program considered when sentence
determined. Failure to comply – matter heard in Children’s Court – same powers more formal.

+ NSW’s first Koori Court opens in Western Sydney with aim of reducing Indigenous youth
imprisonment (ABC News, 2015) – Encourage future compliance with law by generating
awareness of consequences of actions and plan to improve behaviour.

+ More than 60 young Aboriginal people taken part since 2015.

+ Victims contribute to process – victim impact statement as part of court process (optional)
and can be present at sentencing to hear from those involved in case. Respects rights of victims
as well as helping to rehabilitate offenders – better understanding consequences of actions.

+ Aim to reduce recidivism among Indigenous youth - Indigenous youth incarceration rate is a
national crisis and needs action, PM told (The Guardian, 2017) – 2017 AIHW Report findings
2015-2016 Aboriginal and Torres Islander children 25 times more likely to be in detention (RISE
- 21 times more likely in 2011-2012) and 17 times more likely to be under form of youth justice
order than non-Indigenous children.

+ Youth Koori Court to open in Surry Hills with $2.7m budget boost (SMH, 2017) – how court
will be expanded from Parramatta to Surrey Hills with funding boost - Children’s Court
Magistrate Sue Duncombe – ‘absolutely no doubt program helping reduce reoffending rates’

- Pilot Phase, still need to quantify effectiveness

NON-LEGAL - Just Reinvest NSW – Independent non-profit - advocates for concept of justice
reinvestment to become policy in NSW. Shifting focus from incarceration towards prevention,
early intervention and treatment of at risk Aboriginal Children.
Backing Bourke: How a radical new approach is saving young people from a life of crime (ABC
News, 2016) – Justice reinvestment currently trailed in Bourke – shifting funding away from
incarceration to crime prevention programs - targeting underlying issues - homelessness,
poverty, drug and alcohol abuse. Bourke - Aboriginal youth - free driving lessons and assistance
in obtaining necessary paperwork – birth certificates – to reduce number of driving offences.
- More time needed to collate data from Bourke to evaluate effectiveness, only in Bourke –
access to justice
Terrorism Legislation Amendment (Police Powers and Parole) Act 2017 (NSW) amended the
Crimes (Administration of Sentences) Act 1999 (NSW) Modified operation of parole for
terrorism related offenders. Presumption against parole for anyone who demonstrates support
for/links to terrorist activity.

+ Responsive to needs of society – protecting from harm. Direct response to terrorism related
siege occurred in Melbourne – conducted by Yacqub Khayre – on parole at time for violent
offence but acquitted of separate terrorism related offenders.

+ Attempt to achieve justice at national level. States and territories agree to crack down on
parole laws after Brighton siege (ABC News, 2017) – 2017 Council for Australian Govt. (COAG)
meeting that implementation of nationally consistent approach to parole for offenders with
links to terrorism

- NSW Bar Association and NSW Law Society – adequate consultation from legal experts was
not obtained before legislation was passed – concerns that reform may have unintended
consequences.

- Threshold for State Parole Authority using its discretion to grant parole raised to impossible
standard – Satisfied offender will not engage in or incite or assist others to engage in terrorist
acts – proving the negative. Offender needs to disprove negative – almost impossible job –
David Shoebridge of the Greens Party Difficult to prove something will not occur.

- Australian Lawyers for Human Rights – parole reform represents abandonment of the rule of
law, reversal of presumption of innocence and breach of fundamental human rights. Setting
impossible tests for parole undermines such principles. Inconsistent with Australia’s obligations
under international human rights law – potential for serious miscarriages of justice.
- Restricting bail and parole for those with terror links is no cure at all (The Conversation, 2017)
Law reform will only be able to protect society from harm and encourage compliance for
limited period of time – once offender served full sentence may be released into community
without any supervision. Essential for government to focus on rehabilitation and de-
radicalization programs rather than punitive measures.
NON-LEGAL: Media, Australian Lawyers for Human Rights
  The purposes of punishment: deterrence, retribution, rehabilitation, incapacitation
REHABILITATION
Forum sentencing - Alternative sentencing option operating at selected NSW Local Courts.
Restorative justice program. Focus - rehabilitation of offenders, reconciliation through
facilitated meeting between victim and support people, offender and their support people,
police and other people affected by crime to discuss offence and impact on victim and others.
Available under Criminal Procedure Regulation 2010 – regulation under Criminal Procedure Act
1986 (NSW). Program strengthened through law reform - Criminal Procedure Amendment
(Forum Sentencing Intervention Program) Regulation 2014. Participated in by those likely to
receive prison sentence, community service order or good behaviour bond. Not available for
more serious offences.
+ Respect rights of victims by giving them voice in sentencing process – only undertaken if
victim of offender wishes to participate. Chance to discuss impact offence on lives – help
offender understand consequences.
+ Encourage rehabilitation and reduce recidivism through creation and implementation of
Intervention Plan – may include apology/payment of reparations to victim, work for
victim/community, participation in relevant education or rehabilitation program etc. (Properly
address offending behaviour and reintegrate into community). Successful completion of Plan
may reduce sentence issued by Magistrate, or also used as part of actual sentence issued.
- Rates of recidivism among offenders referred to Forum Sentencing (BOCSAR 2013) – forum
sentencing no more effective than the courts in reducing recidivism. Don Weatherburn –
“Although restorative justice programs well-liked by those who participate in them, not much
hard evidence they reduce re-offending.”
- NSW Forum Sentencing overhaul after study finds it does not deter offenders (ABC News,
2013) Don Weatherburn – program does not target risk factors ‘drug and alcohol abuse,
intellectual disability and mental health problems’
NON-LEGAL - Youth on Track Scheme – 2013. Aim - produce holistic case management of young
people at risk of entering CJS. Case management undertaken by NGOs. Addresses underlying
issues may be affecting young people – increase compliance.
Youth on track program keeps kids off police radar (Sydney Morning Herald, 2015) –
Recent BOCSAR evaluation of scheme found over 90% of participants decreased formal contact
with police and juvenile system
SPECIFIC DETERRENCE
Children’s Court Act 1987 (NSW) amended through 2015 introduction of ‘Practice Note’ –
established pilot Youth Koori Court in Parramatta NSW, and Surry Hills in 2018.
Youth Koori Court – alt approach to managing cases involving young Indigenous offenders- aim
to reduce incarceration and recidivism among of Indigenous youth. Approx. 60% y/o
Indigenous. Indigenous elders, family and friends, youth workers and FACS representatives –
informal setting devise individual action and support plant to address offending behaviour over
6-12 months before sentencing. Compliance with program considered when sentence
determined. Failure to comply – matter heard in Children’s Court – same powers more formal.

+ NSW’s first Koori Court opens in Western Sydney with aim of reducing Indigenous youth
imprisonment (ABC News, 2015) – Encourage future compliance with law by generating
awareness of consequences of actions and plan to improve behaviour.

+ More than 60 young Aboriginal people taken part since 2015.

+ Victims contribute to process – victim impact statement as part of court process (optional)
and can be present at sentencing to hear from those involved in case. Respects rights of victims
as well as helping to rehabilitate offenders – better understanding consequences of actions.

+ Aim to reduce recidivism among Indigenous youth - Indigenous youth incarceration rate is a
national crisis and needs action, PM told (The Guardian, 2017) – 2017 AIHW Report findings
2015-2016 Aboriginal and Torres Islander children 25 times more likely to be in detention (RISE
- 21 times more likely in 2011-2012) and 17 times more likely to be under form of youth justice
order than non-Indigenous children.

+ Youth Koori Court to open in Surry Hills with $2.7m budget boost (SMH, 2017) – how court
will be expanded from Parramatta to Surrey Hills with funding boost - Children’s Court
Magistrate Sue Duncombe – ‘absolutely no doubt program helping reduce reoffending rates’

- Pilot Phase, still need to quantify effectiveness

NON-LEGAL - Just Reinvest NSW – Independent non-profit - advocates for concept of justice
reinvestment to become policy in NSW. Shifting focus from incarceration towards prevention,
early intervention and treatment of at risk Aboriginal Children.
Backing Bourke: How a radical new approach is saving young people from a life of crime (ABC
News, 2016) – Justice reinvestment currently trialled in Bourke – shifting funding away from
incarceration to crime prevention programs - targeting underlying issues - homelessness,
poverty, drug and alcohol abuse. Bourke - Aboriginal youth - free driving lessons and assistance
in obtaining necessary paperwork – birth certificates – to reduce number of driving offences.
- More time needed to collate data from Bourke to evaluate effectiveness, only in Bourke –
access to justice
INCAPACITATION
Terrorism Legislation Amendment (Police Powers and Parole) Act 2017 (NSW) amended the
Crimes (Administration of Sentences) Act 1999 (NSW) Modified operation of parole for
terrorism related offenders. Presumption against parole for anyone who demonstrates support
for/links to terrorist activity.

+ Responsive to needs of society – protecting from harm. Direct response to terrorism related
siege occurred in Melbourne – conducted by Yacqub Khayre – on parole at time for violent
offence but acquitted of separate terrorism related offenders.

+ Attempt to achieve justice at national level. States and territories agree to crack down on
parole laws after Brighton siege (ABC News, 2017) – 2017 Council for Australian Govt (COAG)
meeting that implementation of nationally consistent approach to parole for offenders with
links to terrorism

- NSW Bar Association and NSW Law Society – adequate consultation from legal experts was
not obtained before legislation was passed – concerns that reform may have unintended
consequences.

- Threshold for State Parole Authority using its discretion to grant parole raised to impossible
standard – Satisfied offender will not engage in or incite or assist others to engage in terrorist
acts – proving the negative. Offender needs to disprove negative – almost impossible job –
David Shoebridge of the Greens Party Difficult to prove something will not occur.

- Australian Lawyers for Human Rights – parole reform represents abandonment of the rule of
law, reversal of presumption of innocence and breach of fundamental human rights. Setting
impossible tests for parole undermines such principles. Inconsistent with Australia’s obligations
under international human rights law – potential for serious miscarriages of justice.
- Restricting bail and parole for those with terror links is no cure at all (The Conversation, 2017)
Law reform will only be able to protect society from harm and encourage compliance for
limited period of time – once offender served full sentence may be released into community
without any supervision. Essential for government to focus on rehabilitation and de-
radicalization programs rather than punitive measures.
NON-LEGAL: Media, Australian Lawyers for Human Rights
  Examine the implications of post-sentencing considerations in achieving justice

Terrorism Legislation Amendment (Police Powers and Parole) Act 2017 (NSW) amended the
Crimes (Administration of Sentences) Act 1999 (NSW) Modified operation of parole for
terrorism related offenders. Presumption against parole for anyone who demonstrates support
for/links to terrorist activity.

+ Responsive to needs of society – protecting from harm. Direct response to terrorism related
siege occurred in Melbourne – conducted by Yacqub Khayre – on parole at time for violent
offence but acquitted of separate terrorism related offenders.

+ Attempt to achieve justice at national level. States and territories agree to crack down on
parole laws after Brighton siege (ABC News, 2017) – 2017 Council for Australian Govt (COAG)
meeting that implementation of nationally consistent approach to parole for offenders with
links to terrorism

- NSW Bar Association and NSW Law Society – adequate consultation from legal experts was
not obtained before legislation was passed – concerns that reform may have unintended
consequences.

- Threshold for State Parole Authority using its discretion to grant parole raised to impossible
standard – Satisfied offender will not engage in or incite or assist others to engage in terrorist
acts – proving the negative. Offender needs to disprove negative – almost impossible job –
David Shoebridge of the Greens Party Difficult to prove something will not occur.

- Australian Lawyers for Human Rights – parole reform represents abandonment of the rule of
law, reversal of presumption of innocence and breach of fundamental human rights. Setting
impossible tests for parole undermines such principles. Inconsistent with Australia’s obligations
under international human rights law – potential for serious miscarriages of justice.
- Restricting bail and parole for those with terror links is no cure at all (The Conversation, 2017)
Law reform will only be able to protect society from harm and encourage compliance for
limited period of time – once offender served full sentence may be released into community
without any supervision. Essential for government to focus on rehabilitation and de-
radicalization programs rather than punitive measures.
NON-LEGAL: Media, Australian Lawyers for Human Rights

Crimes (High Risk Offenders) Act 2006 (NSW) – NSW Attorney General apply to Supreme Court
for continued detention of high risk violent and sex offenders in prison after sentence is
completed via Continued Detention Orders (CDOs). Allows for Extended Supervision Orders
(ESOs) applied for certain offenders – can continue monitored after release from prison. Crimes
(High Risk Offenders) Amendment Act 2017 – High Risk Offender Scheme modified in several
ways. Community safety paramount consideration of court when deciding CDO or ESO. Test –
whether offender is risk to community rather than whether can be adequately supervised.
Greater number offenders now eligible for CDO or ESO - court can now consider both
offenders’ criminal history and future risk of both sex and violent offences.

+ Compliance CDO and ESO - high risk offenders incapacitated – amendment = wider range of
offenders. Better management of high risk offenders (NSW Government 2017 release 2017) -
legislation part of suite of reforms under NSW Government’s $200 million “Tough and smart
justice for safer communities” policy – better protect community from dangerous and violent
offenders

+ Responsive – 2017 NSW Department of Justice Review of High Risk Offenders Act 2006 (NSW)
– recommended community safety should be clarified as Court’s paramount consideration in
determining how to deal with offender’s non-compliance and whether to make order for CDO
or ESO.

+ High-risk offenders out on extended supervision orders are monitored by Corrective services,
police and psychologists (SMH, 2015) - Compliance with ESO monitored by Community
Corrections – if conditions breached can be sent back to jail for up to 5 years. Highlights
enforceability of law and strength in encouraging compliance.

- Law Society of NSW – original sentence of offender represents weighing up of all of purposes
of sentencing under Crimes (Sentencing Procedure) Act 1999 – eliminates relevance of judge’s
sentencing decision and use of discretion under law - “detaining a person beyond maximum
sentence imposed by sentencing court offends fundamental principle of proportionality”.
NON-LEGAL: NSW Law Society

Deportation – forced removal of non-citizen to country of origin. Used as post-sentencing

option for non-citizen criminal offenders in Australia.
Migration Amendment (Character and General Visa Cancellation) Act 2014 - Recent
amendment to Migration Act 1958 (Cth) widened scope of Minister for Immigration’s power to
cancel visas and deport criminals. Section 501 (3A) – mandatory visa cancellations in certain
circumstances – minister MUST cancel persons’ visa if do not pass prescribed ‘character test’
and are serving full time sentence of 12months imprisonment+ (or convicted of sexual offence
against child). Minister for Immigration previously had discretion to decide about deportation
of such non-citizen criminal offenders – cancellation of visa now mandatory.

+ Punish non-compliance with Australian laws through removal – meet needs of society –
protect from harm. Hundreds of convicted criminals visas revoked under Migration Act
amendment (ABC News, 2015) – Immigration Minister AT TIME Peter Dutton “Frankly, they are
detracting from Australian society, not adding to it.”
+ Minister retains power to intervene in special cases
+ Right to appeal to Administrative Appeals Tribunal – access to justice
- Lawyers criticize mandatory deportation from Australia of foreign citizens who have served jail
time (ABC News, 2015) - Australian Lawyers Alliance criticism – effectively is punishing people
twice – “people have been dumped in other countries with considerable healthcare issues
without support from the Australian government”
DPP v Jovicic (2001) highlight problems with deportation – sentenced to imprisonment for
burglary and theft – subsequently deported to Serbia on character grounds in 2004 after
serving sentence. Serbian government refused to recognise him as citizen – ‘stateless’. Ill and
living on the streets. AU Govt granted permanent visa to return on compassionate grounds –
awarded in 2008. Negative effect of deportation on individuals when adequate support and
networks are not in place to facilitate the post-sentencing option.

- AHRC – argued that when Australian non-citizen has visa cancelled, become an unlawful non-
citizen. Subject to indefinite mandatory detention until deported – increase chance of
individuals being subject to arbitrary detention – breach of Australia’s international obligations
under International Covenant on Civil and Political Rights.
NON-LEGAL: ALA, Media, AHRC
  Assess the roles of alternative methods of sentencing

Forum sentencing - Alternative sentencing option operating at selected NSW Local Courts.
Restorative justice program. Focus - rehabilitation of offenders, reconciliation through
facilitated meeting between victim and support people, offender and their support people,
police and other people affected by crime to discuss offence and impact on victim and others.
Available under Criminal Procedure Regulation 2010 – regulation under Criminal Procedure Act
1986 (NSW). Program strengthened through law reform - Criminal Procedure Amendment
(Forum Sentencing Intervention Program) Regulation 2014. Participated in by those likely to
receive prison sentence, community service order or good behaviour bond. Not available for
more serious offences.
+ Respect rights of victims by giving them voice in sentencing process – only undertaken if
victim of offender wishes to participate. Chance to discuss impact offence on lives – help
offender understand consequences.
+ Encourage rehabilitation and reduce recidivism through creation and implementation of
Intervention Plan – may include apology/payment of reparations to victim, work for
victim/community, participation in relevant education or rehabilitation program etc. (Properly
address offending behaviour and reintegrate into community). Successful completion of Plan
may reduce sentence issued by Magistrate, or also used as part of actual sentence issued.
- Rates of recidivism among offenders referred to Forum Sentencing (BOCSAR 2013) – forum
sentencing no more effective than the courts in reducing recidivism. Don Weatherburn –
“Although restorative justice programs well-liked by those who participate in them, not much
hard evidence they reduce re-offending.”
- NSW Forum Sentencing overhaul after study finds it does not deter offenders (ABC News,
2013) Don Weatherburn – program does not target risk factors ‘drug and alcohol abuse,
intellectual disability and mental health problems’
NON-LEGAL - Youth on Track Scheme – 2013. Aim - produce holistic case management of young
people at risk of entering CJS. Case management undertaken by NGOs. Addresses underlying
issues may be affecting young people – increase compliance.
Youth on track program keeps kids off police radar (Sydney Morning Herald, 2015) –
Recent BOCSAR evaluation of scheme found over 90% of participants decreased formal contact
with police and juvenile system
- Fell short of started goals – assisting only 35 young people of proposed 300 in first year of
operation – Youth program off track (SMH, 2013)
Children’s Court Act 1987 (NSW) amended through 2015 introduction of ‘Practice Note’ –
established pilot Youth Koori Court in Parramatta NSW, and Surry Hills in 2018.
Youth Koori Court – alt approach to managing cases involving young Indigenous offenders- aim
to reduce incarceration and recidivism among of Indigenous youth. Approx 60% y/o Indigenous.
Indigenous elders, family and friends, youth workers and FACS representatives – informal
setting devise individual action and support plant to address offending behaviour over 6-12
months before sentencing. Compliance with program considered when sentence determined.
Failure to comply – matter heard in Children’s Court – same powers more formal.

+ NSW’s first Koori Court opens in Western Sydney with aim of reducing Indigenous youth
imprisonment (ABC News, 2015) – Encourage future compliance with law by generating
awareness of consequences of actions and plan to improve behaviour.

+ More than 60 young Aboriginal people taken part since 2015.

+ Victims contribute to process – victim impact statement as part of court process (optional)
and can be present at sentencing to hear from those involved in case. Respects rights of victims
as well as helping to rehabilitate offenders – better understanding consequences of actions.

+ Aim to reduce recidivism among Indigenous youth - Indigenous youth incarceration rate is a
national crisis and needs action, PM told (The Guardian, 2017) – 2017 AIHW Report findings
2015-2016 Aboriginal and Torres Islander children 25 times more likely to be in detention (RISE
- 21 times more likely in 2011-2012) and 17 times more likely to be under form of youth justice
order than non-Indigenous children.

+ Youth Koori Court to open in Surry Hills with $2.7m budget boost (SMH, 2017) – how court
will be expanded from Parramatta to Surrey Hills with funding boost - Children’s Court
Magistrate Sue Duncombe – ‘absolutely no doubt program helping reduce reoffending rates’

- Pilot Phase, still need to quantify effectiveness

NON-LEGAL - Just Reinvest NSW – Independent non-profit - advocates for concept of justice
reinvestment to become policy in NSW. Shifting focus from incarceration towards prevention,
early intervention and treatment of at risk Aboriginal Children.
Backing Bourke: How a radical new approach is saving young people from a life of crime (ABC
News, 2016) – Justice reinvestment currently trialed in Bourke – shifting funding away from
incarceration to crime prevention programs - targeting underlying issues - homelessness,
poverty, drug and alcohol abuse. Bourke - Aboriginal youth - free driving lessons and assistance
in obtaining necessary paperwork – birth certificates – to reduce number of driving offences.
- More time needed to collate data from Bourke to evaluate effectiveness, only in Bourke –
access to justice
Youth Offenders Act 1997 (NSW) – applies to all young offenders –range of diversionary
programs for young offenders as alternatives for courts and control orders that would normally
apply under Children (Criminal Proceedings) Act 1987 (NSW). Warnings, cautions and YJCs.
Aim – increase compliance – reduce number of people in custody and recidivism among y/o.

DIVERSIONARY PROGRAMS

+ Youth Justice Conferences - Alternative to court based on restorative justice principles as

offender accepts responsibility, enhancing the rights of victim. Primary diversionary program
for young offenders.

+ Assist to better understand consequences of actions and rehabilitate – improve chances of

compliance.
Racist attack on bus: offender’s Youth Justice Conference (SMH, 2014) – Young offender who
made anti-Semitic comments on bus required to attend YJC included member of NSW Jewish
Board of Deputies. Offender also had to visit Sydney Jewish Museum – better understand
consequences of actions.

+ Avoid formal conviction – drastic impact on future employment opportunities as evident

within case SBF v R (2009) NSWCCA.

+ Juvenile Diversionary Program Cheaper than Courts (ABC News 2012) – Resource efficient
way to deal with non-compliance – cheaper than courts Cost-effective.

- NSW BOCSAR found youth justice conferencing no more effective than Children’s Court in
reducing overall juvenile recidivism – 65% both groups commit another offence within two
years, attesting limited ability to reduce recidivism.

- BOCSAR Don Weatherburn - “fundamental problem with restorative justice programs - don’t
deal with underlying problems of juvenile offending”, challenging extent to which alternatives
to court are effective means of reducing recidivism and achieving justice for all major
stakeholders.
NON-LEGAL - Youth on Track Scheme – 2013. Aims to produce holistic case management of
young people at risk of entering CJS. Case management undertaken by NGOs. Addresses
underlying issues may be affecting young people – increase compliance.
+ Youth on track program keeps kids off police radar (Sydney Morning Herald, 2015) –
Recent BOCSAR evaluation of scheme found over 90% of participants decreased formal contact
with police and juvenile system
 YOUNG OFFENDERS
 Discuss issues surrounding the age of criminal responsibility

Children (Criminal Proceedings) Act 1987 (NSW). Section 5 – established minimum age of
criminal responsibility as 10 years of age. Allowed doli incapax to operate as safeguard between
ages of 10 and 13 as rebuttable presumption – Move from retribution focused system of early
1900s – children as young as 8 could be held criminally liable and lawfully imprisoned –
PROTECTION OF RIGHTS OF OFFENDERS.
+ Concept recognizes children do not have same level of mental development and life
experience as adults and therefore should not be punished for non-compliance with law and
same way adults are – R v LMW (1999) – highlighted that while children between 10-13 can
technically be held responsible for crimes, prosecution will need to show strong evidence to be
able to rebut presumption beyond reasonable doubt.
- A Brighter Tomorrow: Keeping Indigenous Kids in the Community and out of Detention in
Australia (Amnesty International Report 2015) – brings attention to national crisis –
overrepresentation of Indigenous young people in detention in Australia – addressed in part by
raising age of criminal responsibility. Argues current age of 10 in conflict with intention of
UNCROC 1989.
UN Committee on the Rights of the Child – 10 to be too low – recommend 12 absolute
minimum age of criminal responsibility – considered ‘internationally acceptable’
- Will Australia follow the NT’s promise to raise the age of criminal responsibility? (SBS News,
2018) – March 2018 NT announced raise age of criminal responsibility to 12 in response to
recommendations of Royal Commission into Protection and Detention of Children – Amnesty
International still disagrees with – age should be raised to 14 not 12. CONFLICT between states.
NON-LEGAL
Amnesty International – 2015 report.
Social media campaign #RaiseTheAgeto14
  Penalties for children
 Alternatives to court

Children’s Court Act 1987 (NSW) amended through 2015 introduction of ‘Practice Note’ –
established pilot Youth Koori Court in Parramatta NSW, and Surry Hills in 2018.
Youth Koori Court – alt approach to managing cases involving young Indigenous offenders- aim
to reduce incarceration and recidivism among of Indigenous youth. Approx 60% y/o Indigenous.
Indigenous elders, family and friends, youth workers and FACS representatives – informal
setting devise individual action and support plant to address offending behaviour over 6-12
months before sentencing. Compliance with program considered when sentence determined.
Failure to comply – matter heard in Children’s Court – same powers more formal.

+ NSW’s first Koori Court opens in Western Sydney with aim of reducing Indigenous youth
imprisonment (ABC News, 2015) – Encourage future compliance with law by generating
awareness of consequences of actions and plan to improve behaviour.

+ More than 60 young Aboriginal people taken part since 2015.

+ Victims contribute to process – victim impact statement as part of court process (optional)
and can be present at sentencing to hear from those involved in case. Respects rights of victims
as well as helping to rehabilitate offenders – better understanding consequences of actions.

+ Aim to reduce recidivism among Indigenous youth - Indigenous youth incarceration rate is a
national crisis and needs action, PM told (The Guardian, 2017) – 2017 AIHW Report findings
2015-2016 Aboriginal and Torres Islander children 25 times more likely to be in detention (RISE
- 21 times more likely in 2011-2012) and 17 times more likely to be under form of youth justice
order than non-Indigenous children.

+ Youth Koori Court to open in Surry Hills with $2.7m budget boost (SMH, 2017) – how court
will be expanded from Parramatta to Surrey Hills with funding boost - Children’s Court
Magistrate Sue Duncombe – ‘absolutely no doubt program helping reduce reoffending rates’

- Pilot Phase, still need to quantify effectiveness

NON-LEGAL - Just Reinvest NSW – Independent non-profit - advocates for concept of justice
reinvestment to become policy in NSW. Shifting focus from incarceration towards prevention,
early intervention and treatment of at risk Aboriginal Children.
Backing Bourke: How a radical new approach is saving young people from a life of crime (ABC
News, 2016) – Justice reinvestment currently trialed in Bourke – shifting funding away from
incarceration to crime prevention programs - targeting underlying issues - homelessness,
poverty, drug and alcohol abuse. Bourke - Aboriginal youth - free driving lessons and assistance
in obtaining necessary paperwork – birth certificates – to reduce number of driving offences.
- More time needed to collate data from Bourke to evaluate effectiveness, only in Bourke –
access to justice
Youth Offenders Act 1997 (NSW) – applies to all young offenders –range of diversionary
programs for young offenders as alternatives for courts and control orders that would normally
apply under Children (Criminal Proceedings) Act 1987 (NSW). Warnings, cautions and YJCs.
Aim – increase compliance – reduce number of people in custody and recidivism among y/o.

DIVERSIONARY PROGRAMS

+ Youth Justice Conferences - Alternative to court based on restorative justice principles as

offender accepts responsibility, enhancing the rights of victim. Primary diversionary program
for young offenders.

+ Assist to better understand consequences of actions and rehabilitate – improve chances of

compliance.
Racist attack on bus: offender’s Youth Justice Conference (SMH, 2014) – Young offender who
made anti-Semitic comments on bus required to attend YJC included member of NSW Jewish
Board of Deputies. Offender also had to visit Sydney Jewish Museum – better understand
consequences of actions.

+ Avoid formal conviction – drastic impact on future employment opportunities as evident

within case SBF v R (2009) NSWCCA.

+ Juvenile Diversionary Program Cheaper than Courts (ABC News 2012) – Resource efficient
way to deal with non-compliance – cheaper than courts Cost-effective.

- NSW BOCSAR found youth justice conferencing no more effective than Children’s Court in
reducing overall juvenile recidivism – 65% both groups commit another offence within two
years, attesting limited ability to reduce recidivism.

- BOCSAR Don Weatherburn - “fundamental problem with restorative justice programs - don’t
deal with underlying problems of juvenile offending”, challenging extent to which alternatives
to court are effective means of reducing recidivism and achieving justice for all major
stakeholders.
NON-LEGAL - Youth on Track Scheme – 2013. Aims to produce holistic case management of
young people at risk of entering CJS. Case management undertaken by NGOs. Addresses
underlying issues may be affecting young people – increase compliance.
+ Youth on track program keeps kids off police radar (Sydney Morning Herald, 2015) –
Recent BOCSAR evaluation of scheme found over 90% of participants decreased formal contact
with police and juvenile system
 INTERNATIONAL CRIME
Crimes against the international community
INTERNATIONAL
War crimes – Use of child soldiers

 Additional Protocols to the Geneva Convention 1977 – First recognised use of child
soldiers as war crime, acknowledged minimum age at which child can be recruited for
duties – 15y/o
 Article 38 of UN Convention of the Rights of the Child 1989 – Further emphasized –
INTERNATIONAL FRAMEWORK condemns use
 UN Optional Protocol to the Convention on the Rights of the Child on the Involvement
of Children in Armed Conflict 2002 – 18y/0 minimum age child can be compulsorily
recruited or conscripted – order all 168 parties are to abide by. Certain parties have
ratified with reservations – Australia – allows for lowering ADF recruitment age to 17
y/o – undermines international measure effectiveness
 UN Secretary General’s Report on Children and Armed Conflict 2016 – identified armed
forces and groups which use child soldiers – 11 out of 14 states named within report
were parties to the UN Optional Protocol 2002 – lack of enforceability

 ICC – Rome Statute 2002 – jurisdiction to internationally try and punish individuals who
recruit soldiers under the age of 15y – may belong to states unable or unwilling to
prosecute – critical way of seeking justice, deterrence.
 Prosecutor v Thomas Lubanga Dyilo (2006) – rebel Congolese leader found guilty of
recruiting child soldiers under 15y/o in DRC 2002-2003. Used precedent of Special Court
of Sierra Leone to hold that crime of conscription committed as soon as child joins
regardless of compulsion. Threshold for protection of children who have indirect role in
conflict also increased as ruling referred to those involved in domestic duties or general
support as involved in direct hostilities, despite not engaged in direct fighting.
 Prosecutor v Thomas Lubanga Dyilo (2006) – resource efficiency issues – undermines
response to international crime. Trial did not commence until 3 years after arrest,
verdict delivered 3 years after that in which he was given 15y sentence – ability to
deliver harsh penalties overshadowed by lengthy proceedings and prolonged justice
 President of African Union Jean Ping – ICC bias. South Africa – Burundi leave ICC 2017.
Crimes against the international community
DOMESTIC

 AU ratification of the Rome Statute 2002 and the UN Optional Protocol on the
Involvement of Children in Armed Conflict 2002 reflected through amendment of
domestic legislation of Criminal Code Act 1995 (Cth) – Sections 268.68, 268.88
introduced to criminalize use, conscription and enlistment of children as part of
international or national armed conflict
 Reinforced through Section 59 of Defence Act 1903 (Cth) – refers to 18y as minimum
compulsory conscription age
 HOWEVER, child can voluntarily be recruited into ADF at age of 17y. 2005 report
conducted by ADF Ombudsman in regard to the management and administration of
under-age personnel – proposed age of recruitment be raised to 18y – Defence
Department “would severely restrict quality and quantity of recruits”
 Inconsistencies between international and domestic law – partially effective as does not
properly adhere to international standards due to reservations in regard to the UN
Optional Protocol to the Convention on the Rights of the Child on the Involvement of
Children in Armed Conflict 2002
Transnational crime
INTERNATIONAL

 UN Convention against Transnational Organised Crime 2000 and attached Protocol to

Prevent, Suppress and Punish Trafficking in Persons 2000. States who ratify therefore
committed to prevent and combat people trafficking, protect and assist victims of
trafficking and promote cooperation amongst states to meet such objectives.
The Protocol – 173 parties – AU – enacted legislation to shadow international measure.
However, ‘AFP Investigating record number of human trafficking cases in Australia’
(SMH, 2014) – lack on enforceability, violations of international measure.

 The European Court of Human Rights – established in 1959 – responds to individual or

state applications alleging violations of civil and political rights under the European
Convention of Human Rights. Operated full time since 1998 – legally binding decisions.
Rantsev v Cyprus and Russia 2010 – ruled that when a state is aware that individual at
risk of human trafficking, under obligation to protect person, investigate allegations and
implement preventative measures. Legally binding nature reinforced through Russia’s
and Cyprus’ altered legal and administrative practices in regard to human trafficking.
 Can only produce such legally binding decisions on case by case basis, depending on
applications from state and individuals, issues of resource efficiency.

DOMESTIC

 Crimes Legislation Amendment (Slavery, Slavery-like conditions and People Trafficking)

Act 2013 (Cth) amended Criminal Code Act 1995 (Cth) - reflect international obligations
under UN Protocol to Prevent, Suppress and Punish Trafficking in Persons 2000 – party.
Added specific offences of forced marriage and labour, organ trafficking and expanded
offence of sexual servitude to servitude.
 Effectiveness – successful prosecutions – R v Chee Mei Wong (2013) – found guilty of
running brothel which involved servitude of women from overseas – 6y imprisonment.
 Tier 1 Best Practice Country in USA’s Trafficking Persons Report 2018
 Australian media – exposed failures. “Inquiry reveals hidden problem of human
trafficking and slavery in NSW” (ABC News, 2013) – issues of transnational crime
underreported.
 “AFP investigating record number of human trafficking cases in Australia” (SMH, 2014) –
number of active investigations into human trafficking have doubled in past 2 years –
most prominent forced marriages – no one prosecuted for despite 2013 reform.
 “7 Eleven court penalties top $1 million, says Fair Work Ombudsman” (ABC News, 2017)
– conversation of reform regarding transnational crime – Modern Slavery Act – compel
large companies to report on own efforts to safeguard supply chains from slavery & HT.