The Northern Territory has seen a dramatic increase in the number of young people in detention following the passage of the Youth Justice Legislation Amendment Act 2021. The Bill, which passed despite opposition in May, has made it harder for young people facing criminal charges to get bail as well as giving police more powers to tackle youth crime.
The changes were opposed by independent MPs and even some within the government who argued they sent the wrong message about locking up kids. The NT Children’s Commissioner also opposed the changes, saying that they would disproportionately impact Indigenous children and calling for the government to reconsider the changes, which are also opposed by Indigenous legal and health organisations and human rights organisations.
The opposition criticised the changes as weak and not going far enough.
The government defended the changes by saying that they will result in government services becoming involved with young people at an earlier stage, make police work easier and keep Territorians safer.
What changes has the Youth Justice Legislation Amendment Act made?
The Youth Justice Legislation Amendment Act has made changes to many aspects of the NT youth justice system. These include changes to bail presumptions, changes to the diversion program and the introduction of electronic monitoring by police. Some of these changes are outlined below.
Family Responsibility Agreements
Under section 89A of the Youth Justice Legislation Amendment Act, a court may order that an appropriate agency enter into a family responsibility agreement with the parent of a young person. Such an order can be made at any stage of proceedings. The court may then review the family’s compliance with the agreement.
These agreements may require the family to take part in conferencing and counselling, education or training, housing management, financial counselling or on-country programs. Prior to making such an agreement, the agency must consider the family’s circumstances and the likely effect of the agreement on the family. It must also ensure that facilities and services needed in order to comply with the agreement are available to the parents.
Failure to complete diversion
Under the Youth Justice Legislation Amendment Act, a young person who fails to complete diversion will now have to go back before the court to have their case reconsidered. Courts will no longer be able to refer a matter to police for consideration of diversion for a second time.
Under the Youth Justice Legislation Amendment Act, the NT Bail Act has been amended so that there is no presumption in favour of bail where a young person is charged with certain serious offences including unlawful use of motor vehicle, unlawful entry, assault of a worker or assault police. A young person will still be able to be granted bail in respect of these offences but will have to demonstrate why the grant of bail is appropriate.
Where a young person has engaged in a serious breach of bail such as committing another offence, failing to attend court or failing to complete diversion, the court must revoke their bail and not grant them fresh bail (section 33AA). However, the court will still be allowed to grant a young person bail if there are exceptional circumstances that make it appropriate to do so. This means that courts now have very limited discretion as to the grant of bail where there has been a serious breach of bail by a young person.
Breaches of bail are also now to be taken into account when a young person is being sentenced.
Youth detainee numbers have reportedly almost doubled as a result of the tougher bail laws, with the first 10 year old detained this week in the notorious Don Dale Detention Centre.
Youth Justice Legislation Amendment Act and the Age of criminal liability
The age of criminal liability in the NT is 10 (as in the rest of Australia). Calls to raise the age of criminal responsibility have abounded over the last few years, since revelations of human rights abuses in detention in 2016.
In 2017, the Gunner government committed to raise the age of criminal liability. The promise was made in response to recommendations by the Royal Commission Into the Protection and Detention of Children in the NT. However, since being re-elected in 2020, the government has not taken any step to raise the age and has not renewed its commitment to doing so.
Although the campaign to raise the age of criminal liability has widespread support, it also has vocal opponents. Those opposed to the move say that young people commit serious offences and that the community needs to be protected from them through tough bail and sentencing laws.
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