The Pasifika Youth Court: A discussion of the features and whether they can be transferred

Abstract

The Youth Court (YC) is a division of the District Court that is governed by specific principles contained in the Oranga Tamariki Act 1989 (the Act) and handles offending by young persons that are 14 years old but not yet 17 years of age. Since October 2010, the YC also has jurisdiction over certain 12 and 13-year-old children charged with specified serious offences.¹ The Family Court usually handles all cases involving children aged under 14 years old and all care and protection cases. YC judges although specialists in this area are also District Court judges handling general civil and criminal cases and their decisions are subject to appeal to the High Court and Court of Appeal.² Young persons may be charged with any criminal offence, but almost all charges are finalised in the Youth Court.³ For purely indictable offences, the young person is transferred to the adult court unless the YC judge allows him to remain in the YC.⁴

At the heart of the YC is the Family Group Conferencing (FGC) model where informal meetings of the young offender, his or her extended family, the young offender’s lawyer (or youth advocate), the victim with supporters, police, social workers and members of the community. FGC is the acknowledgment that a young person belongs to a family and community, who as stakeholders have vested interest in finding the best outcome that will help the youth offender take responsibility for the wrong done.⁵ A further discussion of FGC is provided in the later part of this paper.

The focus of this paper is the Pasifika Youth Court (PYC). The PYC is just like any other YC applying the same laws and consequences but the similarities end there.⁶

This paper will first provide an overview of the PYC in the Youth justice system. Secondly it will provide a detailed account of the legal framework that empowers the operation of the youth justice system in New Zealand and subsequently, the PYC. This paper will then provide a detailed outline of the features that are unique to the PYC. These features will be dealt with in this order: involvement of elders and advocates; involvement of community; physical environment; and role of culture. This paper will then provide a brief account of where the PYC fits in with some of the comprehensive laws. Restorative justice and therapeutic jurisprudence are paid particular attention to with very brief accounts for problem solving courts and reintegrative shaming. This paper will then proceed to provide a very detailed analysis the PYC by answering some hard questions. Topics of analysis can be seen in Part 6 of this paper. This paper will towards the end provide a brief account of whether the features are transferable followed by a concluding remark.

¹ Nessa Lynch Youth Justice in New Zealand, (2nd ed, Thomson Reuters New Zealand Ltd, Wellington, 2016) at 172. ² FWM McElrea “The New Zealand Model of Family Group Conferences” (paper prepared for the International Symposium ‘Beyond Prisons’ Best Practices Along the Criminal Justice Process, March 1998) at 2. ³ Nessa Lynch Youth Justice in New Zealand, above n 1. ⁴ Oranga Tamariki Act 1989, ss 275 and 276. ⁵ PAC – Pacific Islands Broadcasting Association “Adoption of New Zealand Youth Court System” (12 Oct 2005) Gale CeFWMngage Learning <http://go.galegroup.com.helicon.vuw.ac.nz/ps/i.do?&id=GALE|A137416302&v=2.1&u=vuw&it=r&p=ITOF&sw=w&authCount=1> ⁶ Lucy Hughes Jones “NT:NT inquiry reviews cultural NZ youth court” (10 February 2017) AAP General News Wire <https://search.proquest.com/docview/1866525924/fulltext/9F573C5085A64320PQ/1?accountid=14782>