Children and Justice Legislation Amendment (Youth Justice Reform) Bill – Jun 2017

The Bill was introduced to the Legislative Assembly on 24 May 2017. The Bill proposes to make a number of amendments to a variety of legislative instruments, including the Crimes Act 1958, the Children Youth and Families Act 2005 and the Sentencing Act 1991.

The Commission welcomes some of the reforms in the Bill as proactive changes to the youth justice system. Subject to some minor reservations regarding the inclusion of a requirement for prosecutorial consent, the establishment of a youth diversion scheme is a positive step and develops a framework that promotes children’s rights.

The Commission also acknowledges that the Victorian Government wishes to address community concerns about serious crimes committed by children and young people, as well as the desire to improve the safety and security of youth justice facilities.

However, there are provisions in the Bill that raise significant human rights considerations under the Charter, including children’s right to protection in their best interest (s 17(2)), their right to a procedure that takes account of their age and the desirability of promoting their rehabilitation (s 25(3)), their right to equality (s 8), cultural rights (s 19 (2)), the right to privacy (s 13), the right to be treated with humanity and dignity when deprived of liberty (s 22), and the right to be presumed innocent until proven guilty (s 25(1)).

Under s 7(2) of the Charter, reforms that limit human rights must be proportionate and appropriately supported by an evidence base. Importantly, the onus is on the government to provide the relevant evidence base.

The Commission considers that Parliament should conduct a robust and cogent examination of the evidence in support of the amendments to ensure that any limitations on Charter rights are reasonably justified in accordance with section 7(2) of the Charter.

This will ensure that that the Bill strikes the appropriate balance between promoting and protecting the rights of children and community safety considerations. Ideally, for such a balancing analysis to be effective, Parliament would benefit from evidence that substantiates how the proposed measures improve community safety.