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Open Courts and Other Amendments Act at odds with goal of rehabilitation of young people

The Victorian Government’s passing of the Open Courts and Other Amendments Act 2019 is at odds with the goal of rehabilitating young people who have contact with the youth justice system, writes Jesuit Social Services’ Policy and Advocacy volunteer TONY SANTOSPIRITO.

The Open Courts and Other Acts Amendment Act 2019 was passed on 2 May 2019.

Section 14 of the Act amended the previous law preventing publication of offences committed as a child by a person convicted of an offence committed as an adult.  The new law allows publication of the juvenile offence by the judge in sentencing the person as an adult if the juvenile offence is the same or similar to the adult offence, the adult offence is serious and the judge considers the publication is appropriate given the adult’s prospect of rehabilitation.

Publication of a juvenile offence by a judge in these circumstances can then be published by other persons, such as the press.

Jesuit Social Services has long advocated retention of the general prohibition on publication of juvenile offences and continues to support the internationally recognised right of young people to the protection of such prohibitions.  We say the reasons for the amendment are unfounded.

In promoting the passing of the Act, the Government was implementing recommendation 13 of the review of the Open Courts Act 2013 by retired judge Frank Vincent.  Mr Vincent said the basis of the general prohibition on publication of the identity of a juvenile offender rested on an appreciation of the factors contributing to juvenile crime, the potential lifelong consequences of public disclosure and the importance of rehabilitation when dealing with young people.

These considerations, he said, can reasonably be regarded as far less influential in situations where the entire criminal history of an individual demonstrates an entrenched propensity for serious criminality extending from their early years. In that situation the justification for concealment would no longer be present and removal of the prohibition would enable the offender’s adult conduct to be placed into proper context.

We believe that these reasons ignore several important and relevant matters.  They do not take account of the fact that a young person does not reach full maturity on attaining the age of 18 years and becoming an adult in law.

This is especially the case if their maturation has been hindered by adverse circumstances in earlier years, such as disadvantaged backgrounds, mental health problems, the experience of profound adversity, including family violence poverty and family disruption.  A majority of young offenders suffer from one or more of these factors which have a negative impact on their development.

The importance of the early years on the development of the child is now well recognised and should not be underestimated.  Accordingly, rehabilitation should be a major concern in sentencing offenders.  As Mr. Vincent recognised, in many instances, the factors referred to above often affect offenders negatively long after they attain adulthood, sometimes for life, thus prolonging their contact with the criminal justice system, including the prison system.  This makes it more likely that attempts at rehabilitation will be ineffective.  It seems likely that in taking into account juvenile offences committed by an adult offender the sentence will be more severe, making rehabilitation even more difficult.

We believe that investing in tackling the causes of disadvantage and strengthening communities is a far more effective method of reducing crime and rehabilitating offenders than taking into account juvenile offences.