Outgoing Children's Commissioner calls for change, urgent reform

Katie Harris, NZ Herald,
Publish Date
Wed, 13 Oct 2021, 1:42PM
Outgoing Children's Commissioner Judge Andrew Becroft. (Photo / Supplied)
Outgoing Children's Commissioner Judge Andrew Becroft. (Photo / Supplied)

Outgoing Children's Commissioner calls for change, urgent reform

Katie Harris, NZ Herald,
Publish Date
Wed, 13 Oct 2021, 1:42PM

Ending the use of restraint chairs, spit hoods and restricting police photographing children are among urgent recommendations from the outgoing Children's Commissioner.

Judge Andrew Becroft, who's been in the role since June 2016, is rounding out his time in the job with a stark call for change.

In his first address of five before leaving the position at the end of this month he's outlined the key areas of legislation that he believes need urgent reform.

Police practices

Becroft pointed to several "unacceptable" police practices that he said were affecting young people and children.

The use of spit hoods on children, he said, was "profoundly concerning, traumatic", unnecessary and "utterly unacceptable".

He said between 2016 and 2020 the hoods were used on young people 129 times, 53.5 per cent of which were on Māori children.

As well as this, he called for the discontinuation of restraint chairs for children in police cells, restricting the practice of photographing children and young people not charged with an offence and for police to develop an over-arching child and youth strategy.

This was one of the five areas of legislation he specified needed reform "urgently".

"By Māori for Māori"

Becroft said there was a pressing need for "by Māori for Māori" approaches in the youth justice system.

He said despite the reduction in disparities between Māori and non-Māori, indigenous Māori children and young people still come into conflict with the youth justice system at "severely higher" rates than any other ethnic group.

"It is imperative that innovative, government resourced, Māori-led 'by Māori, for Māori,' approaches that respond to offending behaviour by rangatahi Māori are promoted."

While this was the vision for the 1989 legislation, which he said specifically mentioned whānau, hapū and iwi and family groups 28 times, it was stalled and never eventuated.

Court processes

He next pointed to the need for a standalone Youth Court, so the Youth Court can be empowered to deal with all offending by under 18-year olds, including jury trials and murder and manslaughter.

On top of this, Becroft called for the abolishment of life imprisonment, as currently defined, and the mandatory minimum parole period for youth offending.

"The responses should be individually tailored to the young person, their background and the circumstances of the offending."

He also argued that adult courts should have the power to transfer some 18 and 19-year-olds to youth court.

"For example, "developmental lag", previously unidentified neurodevelopment disability and/or the nature of the offending would all be reasons why the Youth Court would be a better forum to resolve the offending.

"My hesitancy to advocate for this additional change, is because the age jurisdiction of the Commissioner is under 18, unless the person is in Oranga Tamariki care under section 386AAA of the Act in which case the definition of young person is extended to age of 21."

Outgoing Children's Commissioner Judge Andrew Becroft. Photo / File

Outgoing Children's Commissioner Judge Andrew Becroft. Photo / File

Age of responsibility

In New Zealand the minimum age of criminal responsibility (MACR) is 10 and has been since 1961, which he said is unarguably too low.

Becroft noted that in practice it is actually 12, as 10 and 11-year-olds cannot be charged with any offences apart from murder and manslaughter.

"To my knowledge since at least 1975, no 10 or 11-year-old ever has been."

He said the MACR should be 14, but due to the current care and protection system needing substantial improvement, particularly for Māori, it should be increased to 12 as a first step.

"Until the care and protection system is transformed, including "by Māori, for Māori" approaches."

Youth justice detention centres

On this note, he also recommended a slow phase-out and eventual removal of the four large scale youth justice detention centres.

"Segregating young people from the mainstream community and aggregating them together in large numbers in a big concrete detention centre is not a recipe for enduring rehabilitation."

Becroft described these spaces as "ineffective" and harming.

"Up to 80 per cent of those in the residences can be on remand. They should be replaced with much smaller, well supervised, and, in some cases, very secure community homes."

Police remand

He recommended abolishing the option of police cell remand for young people after their first appearance.

"Police cell remands, always in adult police cells, usually in solitary confinement, can quickly lead to mental and emotional harm and the real risk of suicide."

However, he said young people who were violent or may abscond could still be held for short periods and he was not proposing provisions that allow for that change.

Action on some "festering injustices" was long overdue but he said the when the best current visionary legislation is extracted the "seeds of genius are in the system".

"Legislatively, we need to finish the job started in 1989."