South Pacific Council Conference


Speech by the Honourable Chief Justice Peter Underwood AO

It is my very great pleasure to welcome each of you to this important and significant meeting of the South Pacific Council of Youth and Children’s Courts. A special welcome goes to those who have travelled from overseas to be here, although looking around the room, as the conference is held in Tasmania I think that includes to just about everybody who is here except our Chief Magistrate! I hope that as well as enjoying and benefiting from the conference, you all will have some time left over to look around our island State which always looks particularly beautiful in the early Autumn.

As you know, only 11 years have passed since the predecessor of this organisation held its first meeting. I think it was then known as the Standing Committee of Australia and New Zealand Heads of Youth and Children’s Court. The acronym defies imagination!

In those days, only Australian and New Zealand Courts were involved, but this organisation has come a long way in the last few years, expanding to include Heads of Youth and Children’s Courts from an annually increasing number of countries in the South Pacific. Last year the conference took a major step forward in its growth by holding the conference in Suva, the first time that it has been held outside Australia or New Zealand. This year there is another step forward as I understand that the Council welcomes for the first time Chief Magistrate Naomi Matanitobua from Fiji, Magistrate Iova Geita from PNG and Judge Alo Vaemoa Vaai from Samoa.

The development of specialised legal mechanisms for dealing with young offenders emerged early last century. The focus of those early initiatives was on the welfare of the child, but based on the proposition that state intervention was appropriate.

In a report commissioned by the Scottish Government and published last month, it was noted that early models for dealing with young offenders were either basically justice based or welfare based. In the case of the former, the emphasis was on change and development through social and educational intervention, rather than punishment. In the case of the latter, the underlying principle was that youthful offenders should be held accountable for their actions. The welfare approach tended to concentrate on the underlying causes of offending and the needs of each offender, while the justice approach concentrated on the offence and society’s demand that offenders be held accountable.

Generally speaking, over the years it has become widely accepted that the best approach for dealing with children and youth offenders is to put in place a system which strikes a balance between the welfare approach and the justice approach.

The Scottish report opines that New Zealand has “clearly made considerable efforts to ensure positive outcomes for children and young people”. The authors commend New Zealand for achieving a system balanced between justice and welfare. The report card advises that for the majority of young people in trouble, the New Zealand system is successful in keeping the offenders out of the formal justice system and out of custody through the four available stages of diversion. However, it is also noted that there is still work to do.

Although the picture in Australia is complicated by the fact that youth justice is a matter for each State and Territory, the Scottish report states that Australia has not yet got the balance right. Although there have been some legislative changes, the report expresses the view that such programs as conferring are not used as effectively as they could be and there are many unresolved issues associated with them. Overall, the report describes the Australian youth justice system as one in which the main focus is on “gate keeping” and the administration of court-ordered penalties. Australia is criticised for spending a considerable amount on crime control and ignoring primary crime prevention in the face of the prevalence of child poverty, homelessness, abuse and exploitation and the over-representation of poor working class and Aboriginal children. In consequence, programs that meet the needs of young people have not been developed. The observation is made that the balance is firmly towards criminal process with welfare aspects neglected.

I refer to these matters, not to lecture you, but to demonstrate how important this Conference is. It is a unique opportunity to address those kinds of issues. In this context I see with interest that on Thursday there will be a presentation about this very topic by Dr Sheehan and Professor Borowski entitled “The role of Australian Children’s Courts and the challenges they face.” So this conference is an occasion upon which each delegate can learn something from every other delegate. As Judge Becroft, here today, once wrote, “the meetings are invaluable to get a feel for youth offending trends, up to date research and new initiatives”.

Of course, no one system is right for every community. Each jurisdiction must develop a youth justice system which best suits its needs. But the value of this conference is the opportunity it gives – for example – those who do not use the Family Group Conferencing to learn about, and critically evaluate that system from those jurisdictions that do use it. I am not suggesting that it will work to simply transplant a system or process from one jurisdiction to another but what this conference enables you to do is to get hold of the principles of family group conferencing and then to apply those principles with appropriate modifications to suit the family groups in other jurisdictions such as Fiji or the Solomon Islands or the Northern Territory of Australia. I see from your programme that this sort of thing will be the subject of discussion in several sessions and no doubt, out of session too.

As I said at the beginning of these remarks, this Conference is an important and significant event. This is reflected in the support it receives from UNICEF and AusAid. I note that Katherine Gilbert from UNICEF is here at this conference indicating a continuation of that support. In closing your last Conference held in Suva ¾ the first time the Conference has been held outside Australia or New Zealand ¾ the UNICEF Pacific representative who was there, Ms Mellsop, said that:

“[S]he welcomed partnerships with members of the legal profession who are working towards strengthening legal provisions for children and youth because it is a fundamental realisation of the basic principles contained within the Convention of the Rights of the Child.”

She added that the Conference that had just closed had been an opportunity for key professionals to network and exchange information on legal principles and practice concerning youth justice. So, too, is this Conference – “an opportunity to network and exchange information on legal principles and practice concerning youth justice.” It is an important and significant event because the conference concerns every country’s greatest asset: its youth. There is no better way of illustrating the significance of this Conference for every single one of you here today than to refer, as did our Chief Magistrate, Arnold Shott, in last September’s issue of the New Zealand magazine “Court in the Act” to the following statement by the American scholar, teacher and scout leader, Forest E Witcraft: Mr Witcraft was referring to boy scouts and his role as a scout leader. I have very slightly edited his words because they are equally applicable to leaders in the youth justice system and children of both sexes:

“All about me are children. They are the makers of history, the builders of tomorrow. If I can have some part in guiding them up the trails of life, onto the high road of noble character and constructive citizenship, I may prove to be the most important man in their lives, the most important man in my community.

A hundred years from now it will not matter what my bank account was, the sort of house I lived in, or the kind of car I drove. But the world may be different, because I was important in the life of a child.”

I wish you well with the tasks that lie ahead of you at this Conference. I express the hope that everyone of you will go back to your own jurisdiction armed with at least one new initiative that you will be able to put in place and which will help preserve and promote your country’s greatest asset. I am sure that each of you will become important in the life of many children.

I declare this Conference open.