PEOPLE
A Higher Duty

WORDS: Chris Nyst -nystlegal.com.au/blog PHOTOGRAPHY Portrait Photography- Brian Usher - Lifestyle Photography- Evan Velez Saxer @pexels.com
Crime sells, and in Queensland right now, juvenile crime is a runaway best-seller. That fact has clearly not escaped the attention of the press, nor of our politicians.
According to the press reports, we’re currently in the grip of an unprecedented youth crime epidemic. They quote Australian Bureau of Statistics (ABS) statistics that, in the past twelve months, the number of young criminals in Queensland increased by 6 per cent to 10,878 offenders, and the offender rate rose from 1863 offenders per 100,000 people to 1925 offenders per 100,000 people over the same period. When they go to court, the media imply, they get no more than a slap across the wrist and are sent out to continue with their wicked ways.
The none-too-subtle subtext is our courts are way too soft, and bleeding-heart magistrates and judges are virtually inviting young offenders to run riot. As a result, the newspapers have declared, we have a youth crime crisis on our hands, and the politicians have no doubt harsher penalties are the only way to fix it.
But others disagree. Many leading criminologists contend there is “absolutely unanimous” academic consensus that there is no burgeoning crime crisis, and we don’t need harsher penalties. University of Queensland criminologist Renee Zahnow likewise cites ABS data, but to conversely demonstrate that Queensland’s youth crime rate has in fact halved over the past 14 years. Griffith University criminologist Ross Homel says both Labor and the LNP have been perpetrating a “big lie” in saying tougher penalties are the answer. He also quotes ABS data, this time to show imprisonment rates are at an historic all-time high, including a doubling of un-convicted persons refused bail, from 7375 in 2013 to 15,937 in 2023 – the highest in history.
Meanwhile, the United Nations Committee on the Rights of the Child has called the LNP’s new youth crime laws a “flagrant disregard for children’s rights under international law.”
So who is right and who is wrong? Who knows? But either way, the issue of youth crime was at the very centre of this year’s state election which the LNP won, hands down, with a clear mandate to get tough on the kids. So, for the time being at least, the new laws are here to stay.
However, their implementation could throw up some interesting ethical and professional issues for the state’s judicial officers. As any magistrate or judge will tell you, sentencing is hard. Unlike glib newspaper headlines and political slogans, life is seldom black-and-white, and the considerations to be weighed in deciding any person’s future – particularly a child’s – can be complex and distressing. Nuanced, deep-seated issues, like social disadvantage, the breakdown of the family unit, mental ill-health, neurodevelopmental disability, foetal alcohol syndrome, sexual and physical violence, substance abuse, poverty, low education, marginalisation and loss of self-esteem, can be hard to simply sweep aside in favour of a one-size-fits-all panacea, to “get tough on the kids”.
Earlier this year, in the heat of the child crime debate, the then Minister for Police and Community Safety, Mark Ryan, introduced new laws to enable accredited media personnel to be present at Children’s Court proceedings. Previously, such proceedings were closed to the public. But growing public concern over the perceived youth crime explosion and suspected soft-touch judges prompted the then Premier Steven Miles to decide “the public has a right to know what is going on in our court system.” So, the new law allowed the press full access to the Children’s Court.
That is, unless the Court expressly excluded them.
So, shortly thereafter, it was with much chagrin that journalists reported a ‘defiant’ Magistrate, presiding over Childrens Court proceedings in a regional courthouse, had “slapped a blanket non-publication order on every youth crime case in his courtroom, flying in the face of new laws aimed at lifting the veil of secrecy on juvenile proceedings.” The practical effect of His Honour’s order was the reporters were left exactly where they had been – out in the cold.
In making his order, the Magistrate reportedly said he was concerned the media was misdirecting its focus away from issues such as domestic violence and families living on the street. He opined that the recent focus on youth crime was a lop-sided misrepresentation of the community’s youth in general, estimating that the courts probably dealt with less than two per cent of the juvenile population.
His Honour’s stance on the issue divided public opinion within Queensland’s legal circles, with many black-letter lawyers deeply critical of his apparent departure from at least the spirit of the legislative changes. Others praised him for acting in accordance with his personal conviction that indiscriminate publication could potentially cause unjustified harm to the young people appearing in his court. In doing so, they cited his inviolable right to judicial independence. But detractors countered with the question “What allows a lowly magistrate to effectively ignore the will of the parliament?”
It’s an interesting issue, and one not without some weighty curial precedent.
The 1947 case of USA -v- Josef Altstotter was the third of twelve war crimes trials convened by US authorities in occupied Germany in the wake of World War II. The case concerned the criminal trial of sixteen former German jurists and lawyers accused of implementing and furthering the National Socialist program of “racial purity” in the courts of Hitler’s Third Reich. They had done so, prosecutors argued, by applying Nazi laws that resulted in crimes against humanity, including the enslavement, mass murder, and torture of Jews, communists, homosexuals, and other accused undesirables.
In their defence, the judges argued they were just doing their job – applying the laws of the land, enacted by the legislature. But the prosecution countered that the judges had a higher duty, one that transcended those laws, a duty to do what was right.
The trial lasted nine months. Ultimately ten of the sixteen defendants were convicted and sentenced to imprisonment, four of them for life.
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