Jackson, Hal --- "Judging in the Children's Court" [2000] ALRCRefJl 25; (2000) 77 Australian Law Reform Commission Reform Journal 25

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Reform Issue 77 Spring 2000

This article appeared on pages 25 – 28 & 89 of the original journal.

Judging in the Children’s Court

By Judge Hal Jackson*

On ceremonial occasions, adults are often heard to say that children are our most precious resource, the nation’s future and similar sentiments. In practice, the reality is that institutions concerned with the future of children and young people are often not given the priority such sentiments might suggest.

One such institution, which is traditionally treated as the bottom of the barrel, is the Children’s Court. Children’s courts in Australia were created as separate institutions late in the 19th century and early in the 20th. Their creation is generally seen as being part of a wave of child-saving measures. In Australia, these courts operated traditionally as variants from magistrates’ courts. Only in the hearts of our major cities were they ever provided with separate facilities, and even these were often second-rate and allowed to run down. The judicial officers provided for such courts were often seconded magistrates – sometimes reluctant to leave their adult courts and usually without any specific training or experience in children and young people’s matters. In Western Australia, in the Perth city area, a mixture of part-time lawyers and retired social workers or justices of the peace was used for many years. In country areas, children’s courts were almost always manned by the local magistrate as part of a wide range of duties handled by country magistrates’ courts.

As has often been observed, essentially children’s courts had two main streams of work, which, in practice, seemed to merge in procedure and outcome – dealing with neglected and abused children under the care and protection jurisdiction; and dealing with young offenders against the criminal law. In addition, these courts were also often given jurisdiction over adult offenders against children. Where offending was involved, and the matter was at the more serious end of the range – whether the offender was a child or young person on the one hand or an adult offender against children or young people on the other – the matter was remitted to an adult court.

By the 1960s and 1970s, complaints and criticisms of the children’s court system were growing. The sources of the criticisms were various. Some were critical of the welfare or rehabilitation approach taken to young offenders, some with the failure to distinguish between neglected and abused young people and offending young people in terms of procedure and outcome. The result of each had been incarceration of both neglected and abused young people and offenders for indefinite terms – often far longer than an objective assessment would warrant. Other concerns were with the lack of legal representation, due process and substantive and procedural rights afforded to children and young people appearing in the court system.

Reforming the juvenile court system

Around Australia various reforms were made to children’s court systems: separating care and protection jurisdiction from the offending jurisdiction; removing adult offenders to adult courts; introducing procedural and administrative reforms to protect children’s due process rights; and, commencing with South Australia, upgrading the jurisdiction and status of the children’s court.

In 1988, legislation along these lines was passed in Western Australia. The legislation was due to come into force in December 1989.

The head of the new WA Children’s Court, both administrative and judicial, was to be known as the President. The Court had previously lacked an administrative and judicial hierarchy. The new legislation provided for the appointment of judges with District Court status to sit in the Children’s Court and revamped its criminal jurisdiction so that all offences of whatever seriousness charged against young people to the age of 18 were to be dealt with in the Children’s Court (save for a few very limited exceptions such as where the juvenile offender in a serious matter was charged jointly with adults).

My appointment

In mid-1989 I was asked to become the first President. I had been a District Court judge since April 1986. I was told that the government had in mind appointing someone who already had judicial experience as there were a wide range of tasks that needed to be done and it was thought best to appoint someone who did not need to learn to be a judge at the same time. I was told by the then Solicitor-General that I was the second judge to be asked. That same night on television the lead story on one of the commercial channels was that 15 people had already refused the position. I have never worked out which was the closer to the truth.

At the time I accepted the appointment, I had not practised in the Children’s Court or had any specific training in children’s matters. I decided that it was better to adopt the position that this gave me an open mind rather than that I was simply an ignoramus. The arrangement made was that I would commence my new position three months before the implementation of the legislation.

Early problems

What I found was far worse than anything I might have suspected. I was aware that there was considerable public criticism of the system expressed both in political circles and in the media for years. It was in part driven by elements within the police force.

As had commonly been the case around Australia, the system was totally within the administrative control of the Department now known as Family and Children’s Services, then as Community Services. The Department provided the court facilities in both Perth and Fremantle, appointed the lawyers and social workers to sit on the bench, ran the detention centres, provided the pre-sentence reports and operated the non-custodial systems of probation and community service. But all of this had been neglected. The impression I got was that the Department thought that the Children’s Court was a necessary evil and nothing more.

It had also been determined that the court elements of the system would be transferred to the control of the Crown Law Department. That decision had further reduced any incentive in the Community Services Department to spend money on the Children’s Court.

The courts had no training or education facilities, no library, barely any furniture worth having and staff numbers were hopelessly inadequate.

Arrest & detention

For their part, the police had no formal system of cautioning and there was only a very limited alternative diversionary way of processing matters. The general police philosophy seemed to be that the way to deal with all matters, however minor, was by arrest and charge. As a result, the numbers of charges being brought in the Children’s Court in Western Australia was extraordinarily high.

At the other end of the system, the numbers in detention were also very high by Australian standards. Visits to the – quite inadequate – detention facilities showed the sheer predominance of Aboriginal faces among detainees.

Tackling the WA juvenile system

A number of matters required urgent attention. The booming northern suburbs of Perth needed a new court, the Central Perth Court needed to be completely renovated or a new court built with much expanded facilities, the staff needed to be expanded or the number of charges reduced, there needed to be a process of appointing professional full-time magistrates to replace the part-time system. To achieve further gains other changes outside the court system needed to be effected. Cautioning and other diversionary mechanisms needed to be put in place. Police cooperation would be needed for that. New remand and detention facilities were urgently needed.

Early on I decided that given my ignorance (or open mind) it was desirable that I attend as many conferences on matters relevant to the Court’s work and to visit as many facilities, whether courts or detention or program providers outside Western Australia, as possible to try to gain some overall picture. The New Zealand experiment in family group conferencing was one area that I needed to familiarise myself with, and that involved a trip to Auckland.

To influence government and the public, an independent multi-disciplinary body to recommend and supervise changes was appropriate. With the support of the government and the relevant heads of department, a committee, thereafter known as the State Government Advisory Committee on Young Offenders (SGACYO), was established with a Supreme Court judge as head and with administrative and research support.

Given the sheer physical size of Western Australia and the wide criminal jurisdiction of the new Court, it became necessary for me to sit on trials and to deal with sentencing matters in parts of the state outside the metropolitan area from time to time. It was necessary to imbue the various country magistrates and the justices of the peace sitting in even more remote areas with the principles and practices coming into force under the new legislation. That involved further country travel.

I was invited to Queensland to participate in discussions concerning the establishment of a similar system there, leading to the creation of the position of the President of the Children’s Court of Queensland. Meetings of the heads of children’s court jurisdictions around Australia and New Zealand were established. In response to the New Zealand experiments in family group conferencing, ideas were developed for the introduction of a similar system now known in Western Australia as Juvenile Justice Teams. These were piloted and then introduced into legislation with the assistance of Mr Matt Hakeaha, who came from New Zealand to assist, and with the ongoing involvement with the research officer of SGACYO, Dr Harry Blagg. Both in the introduction of cautioning and of the Juvenile Justice Teams, the work of intelligent and sympathetic police officers was vital.

For a period of years, these various developments imposed a heavy out-of-court burden.

Other opportunities to influence developments also presented themselves. With the cooperation of the Department of Community Services, an advisory and coordinating committee on child abuse was operating and I became involved with its work. Fortunately, given the engagement of full-time professional magistrates, it was possible for me to delegate the care and protection work of the Court so that I could concentrate not only on the judicial requirements of the President’s position, which included, for example, sitting without a jury in matters up to and including wilful murder, but also those diverse administrative and extra judicial tasks.

I gave evidence to committees, joined the Board of the Crime Research Centre, gave talks to students, attended book launches and much more.

In the public eye

The novelty of the position of President of the Children’s Court was not lost on the media. Media demands were in some cases sympathetic but in others hostile to the ideas that I put forward.

My experience of the media was that while both the main daily newspaper and the ABC, both radio and television, were balanced and restrained, there were elements within the tabloid press and especially in commercial television and radio, which were simply outrageously unfair. However, even there, the picture was a mixed one. Early in the piece I spent time with one commercial television channel making a one-hour special. However, when it comes to news and public affairs programs, which are the linchpins on which decisions are made, the thrill of the chase and the blood sport of sentencing overwhelmed all other considerations in the eyes of the media, politicians and the public. Giving an address to a Law Week audience, for example, I spoke strongly in support of the introduction of the cautioning system. One well-known parliamentarian sent out a press release. I am told that the Police Union picked the matter up and issued its own, describing me as ‘No Action Jackson’, a title then picked up by elements of the media. I was to learn that you became popular only by telling people what they wish to hear.

Unfortunately, the juvenile justice system became the focus of media attention when Western Australia experienced a rash of high profile juvenile offending involving a number of high-speed pursuits of stolen cars by the police, some of which ended in tragedies. Other offences, including at least two spectacular murders of young people by young people caused very considerable public reaction.

In the eyes of some it was all my fault.

I had no doubt at the time that some of the more outrageous commentary was criminally contemptuous. Trying to obtain political support to take contempt proceedings, however, met with resistance based, no doubt, on the proposition that politicians do not like upsetting powerful media figures.

Elements of the police force were equally a concern. It was common for allegations to be made out of court by young people and their legal representatives of police misuse of force and excessive force. The police subsequently greatly modified their practices in terms of police chases.

Conclusion

The Opposition became the government in early 1993. It was made known to me in various ways by people in the position to know that I was unwelcome to stay at the Children’s Court. Over time, the heat went out of the topic of juvenile offending to a large degree, but I was left in a situation where I was neither listened to nor heard and after a time I resolved to leave and return to the anonymity of the District Court, where I remain. Much of what had been needed was either done or in the pipeline. Other changes in the pipeline I was opposed to.

For my part though, my somewhat tempestuous years at the Children’s Court were marked by visiting various places I would not otherwise have visited. I met a wide range of interesting people outside the usually narrow circle of lawyers and judges, both in the social work, police and other professional and academic areas. I was invited to join various boards and committees, some of which I continue to work on.

However, the problem remains of appointing to Children’s Courts people with an interest and with the capacity to deal with the criticisms in a constructive way and to stay the distance. The provision of training for lawyers and youth workers is another area that needs to be addressed.

For lawyers and judges, children’s courts tend to continue to be seen as the bottom of the basket. Issues such as the upgrading of the jurisdiction, the status of the judicial officers and lawyers and the provision of appropriately suitable facilities need to be addressed if the important work of the Children’s Court of WA is to be maintained.

In addition, legal aid for the disadvantaged young people who make up the bulk of the clientele of children’s courts – in the care and protection jurisdiction and in the criminal jurisdiction – is essential whether it is provided through legal aid commissions, aboriginal legal services, or specialised youth services.

* His Honour Judge Hal Jackson is a judge of the District Court of Western Australia. He was President of the Children’s Court of WA from 1989 to 1993.