Legislative Assembly for the ACT: 2006 Week 2 Hansard (9 March) . . Page.. 523..
MS GALLAGHER (continuing):
others. That is important in protecting all the interests of those that might have been affected by the young person's offending.
MR STEFANIAK (Ginninderra) (11.12): I agree with the comments made by both Mrs Burke and the minister. Dr Foskey should have good look at section 68 as it stands. I will read it out; it is a fairly short section. I think that it is a far more balanced section than what she is proposing here. I think that there is a real problem when you have the words "paramount consideration"in terms of looking at offenders and criminal acts.
As the minister quite properly says, paramount consideration in the interests of the child in the context of this act is terribly important, rather than the interests of, perhaps, natural parents, carers or anyone else. The interests of the child in terms of those issues are paramount, but when it comes to the criminal law there are lots of varying interests, varying rights and competing rights.
The act as it stands strikes a good balance; in fact, in one section it might even go a little bit too far, but there we go. The act states:
If a decision is to be made under this part in relation to a young person or young offender, the decision-maker must make the decision in accordance with the following principles:
(a) if a young person does anything that it contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable-
I would hope no-one would have any quibbles with that-
(b) the young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways-
another sensible provision-
(c) a young person may only be detained in custody for an offence (whether on arrest, in remand or under sentence) as a last resort;
Lots of people have criticised that. Indeed, magistrates themselves, more so with adults, have on occasions criticised a similar section in the Crimes Act, which is now, I think, incorporated into the sentencing act. As a last resort, it means that magistrates can often see a need to detain someone who really should be in custody but there may be some other option and they feel constrained to do so even though they are not particularly happy with it. I would suggest that that is something that needs to be looked at. When you have even ACT magistrates making those comments, they are worthy of due consideration.
On the flipside, as far as people like Dr Foskey are concerned, that surely should be sufficient in terms of what she is seeking. I am not talking so much about remanding, as it is pretty hard to remand a young person in custody on arrest or whatever; but, in terms of sentencing, courts in the ACT have sentenced young people to incarceration-to Quamby or, in instances, to New South Wales-only as a last resort. In fact, they are