Juvenile justice models

18.33 Historically, the two most influential theoretical models of juvenile justice have been the welfare model and the justice model. The welfare model emphasised the rehabilitation needs of the offender. The justice model emphasised due process and accountability.[73] In recent years the divisions between these models have become blurred.

[T]he debates over the welfare versus justice models for juvenile justice have been superseded by a process of simultaneous broadening of welfare concerns, as well as the promulgation of the ideology of the justice model. Young people are seen as being in need of guidance and assistance (the welfare aspect), whilst at the same time offending is seen to be the result of calculated decisions by rational actors (the justice aspect).[74]

18.34 A third approach, the restorative model, is currently emerging as an influence on lawmakers. This model encourages offenders to accept responsibility for their criminal behaviour and its consequences for others.[75] One of the key features of the model is the involvement of victims in dealing with the offence. It does not overlook rehabilitation and punishment but places them in the context of individuals taking responsibility for their actions.

[T]he paradigm of restorative justice…argues that criminal behaviour is a conflict between individuals and that when a crime is committed, it is the victim who is harmed rather than the State. Thus, rather than the offender owing a ‘debt to society’ which must be expunged by experiencing some form of punishment (such as a fine or imprisonment) the offender owes a debt to the victim, which can only be repaid by making good the damage caused to that particular individual.[76]

The aim of the process is to bring about reconciliation, not to exact punishment…[77]

The restorative model is often integral to diverting young offenders from the formal court system.[78] It is a contextual model that acknowledges the desirability of balancing juvenile offenders’ rights against their responsibilities to the community. The Inquiry considers that the national standards for juvenile justice should strike a balance between the rehabilitation of offenders and restitution to the victim and the community.

Recommendation 198 The national standards for juvenile justice should stress the importance of rehabilitating young offenders while acknowledging the importance of restitution to the victim and the community.

[73] These models and their applications were discussed in detail in ALRC Sentencing Research Paper 11 Sentencing Young Offenders AGPS Canberra 1988 ch 4. See also J Wundersitz ‘Juvenile Justice’ in K Hazlehurst (ed) Crime and Justice: An Australian Textbook in Criminology LBC Information Services Sydney 1996, 118–123; I O’Connor ‘Models of juvenile justice’ in A Borowski & I O’Connor (eds) Juvenile Crime, Justice and Corrections Longman Sydney 1997.

[74] D Palmer & R Walters ‘Crime prevention camps for youth ‘at risk’: Blurring the boundaries of care and control’ in C Simpson & R Hil (eds) Ways of Resistance: Social Control and Young People in Australia Hale & Iremonger Sydney 1995, 161.

[75] See F McElrea ‘Restorative justice — the New Zealand Youth Court: A model for development in other courts?’ (1994) 4 Journal of Judicial Administration 33. See also H Zehr Changing Lenses: A New Focus for Crime and Justice Herald Press Scottdale 1990.

[76] J Wundersitz ‘Pre-court diversion: The Australian experience’ in A Borowski & I O’Connor (eds) Juvenile Crime, Justice and Corrections Longman Sydney 1997, 281. The increased focus on the victims of crime is not limited to juvenile justice. eg adult victim-offender conferencing has recently been trialled in NSW. These meetings between victims and offenders occur after the conclusion of court proceedings and are seen as a way of giving both parties an opportunity to deal with the emotional and moral effects of crime: M Riley ‘Victim shakes robber’s hand’ The Sydney Morning Herald 3 June 1997, 6.

[77] R Sarre ‘Juvenile justice in South Australia: An update’ (1994) 5(4) Criminology Australia 13, 15.

[78] See para 18.45.