Page 2493 - Week 07 - Tuesday, 1 July 2008
In terms of specifics, I do wish to go to the length-of-sentencing provisions in the current legislation and those contained in the bill before us. The current legislation, which is being repealed once this is enacted, contains a statutory remission system which can permit a young offender subject to a detention order to be released on licence if, for instance, they have been of good behaviour whilst detained.
Section 133G, part 1.5 of schedule 1 of this bill, removes this scheme on human rights grounds because it is allegedly inconsistent with human rights, primarily because of this distinction between the fair trial requirements for administrative and criminal proceedings. Essentially, the remission system, as it now stands, is delegated from the executive and is administered through youth detentions administration.
The explanatory statement gives a lengthy exposition, citing cases before the European Court of Human Rights and English cases warning against the mixing of criminal and administrative procedures. For instance, in Engel v Netherlands in the European Court of Human Rights, it was determined that a set of criteria that enabled sanctions imposed upon a person by a state to be characterised as either criminal or administrative. Any sanction imposed by a state requires commensurate fair trial protections under human rights law.
The explanatory statement for this bill goes on to cite the case of Campbell and Fell v United Kingdom in 1985, which also followed the criteria in Engel, when the court considered whether the character of charges laid in a prison discipline process were criminal or administrative in nature and addressed the practice of granting and cancelling remissions.
The lessons the government derives from these and other precedents cited is that decisions concerning the remissions, therefore, must be dealt with by an independent body because the process that enables the executive to grant and revoke remissions administratively would be inconsistent with human rights jurisprudence that requires a standard of fair trial akin to a criminal procedure. This is a fair enough conclusion to come to but the logical consequence of this conclusion is that the government should be looking to set up an independent body to deal with remissions or parole for young offenders.
However, the government has decided to substitute the process of remissions with a combination of a sentence and a good behaviour order over a fixed term, neither with a flexibility of rewarding good behaviour. This is my principal concern. If we are to subscribe to and even use human rights principles to guide our dealings with young offenders then surely there must be sufficient flexibility to, indeed, reward good behaviour.
In contrast, the explanatory statement says the government has decided at this stage not to construct a parole system for young offenders in substitute for the existing statutory remission system because:
The effect of combining a sentence of imprisonment and a good behaviour order with a supervision condition meets the rehabilitative goal of supervising a young person’s return to the community akin to a parole system. If a young person