The youth justice system in New Zealand consists of organisations and processes that deal with offending by children aged 10–13 years and young people aged 14–16 years. These differ from general criminal processes, and are governed by different principles.

Law governing child and youth justice

Historical context Following the Treaty of Waitangi, English criminal law was introduced to New Zealand. The British disregarded Māori customary practice in favour of English law and set up the foundations of the modern court system and prisons. During the early 19th century, children were often treated as adults under the law and went through the adult court and prison system. In 1867, the New Zealand Parliament passed the Neglected and Criminal Children Act 1867, which established a system of industrial schools for both neglected and delinquent children.

From 1893, the age of criminal responsibility was set at seven, meaning that children below that age could not be imprisoned. While criminal charged against those under 14 years could be dismissed if offenders did not understand the nature and consequences of their action, delinquent children could still face imprisonment and flogging until the 1920s. From 1906, youth offenders were heard in separate courts from adult offenders. In 1924, a borstal sentence system was introduced with the goal of reforming youth offenders. In 1925, the Government established the first Children's Court as part of a shift from punishment towards rehabilitation.

In 1958, the New Zealand Police established a Juvenile Crime Prevention division (later Youth Aid) to educate young people and to engage them in alternative activities to combat youth offending. In 1961, the Government raised the age of criminal responsibility from seven to 10 years of age. From 1974 youth justice, care and protection matters were heard in separate courts. Minor offenders were often referred to the Children's Board rather than the court system. In addition, probation services and new sentencing options were expanded. During the 1980s, rising Māori concerns about the large number of Māori children in state care and the youth justice system led to calls for change. In addition, growing criticism of residential centres for children and youths led to a shift towards foster and family-based care. Following a report on Māori in the social welfare system in 1988, the Government passed the Children, Young Persons, and Their Families Act 1989 (CYPTFA).

The CYPTFA signified a shift away from this to a family-based process and justice model, which views state intervention as a last resort. The argument supporting this was that the community needed to be kept together, and these ties were important for helping youth. Offenders were held accountable for their behaviour and encouraged to accept responsibility without being criminalised. In June 2017, the New Zealand Parliament passed amendment legislation renaming the bill the Oranga Tamariki Act 1989.

Current domestic context New Zealand legislation differentiates justice processes for under-18-year-olds. The Oranga Tamariki Act 1989 governs these processes.Children, Young Persons, and Their Families Act 1989, Part 4 and 5. They are diversion-focused, and include the dual aim of rehabilitation and accountability.

Other legislation is also relevant, particularly the New Zealand Bill of Rights Act 1990 (NZBORA). This includes a child's right to be dealt with in a manner that takes into account their age.New Zealand Bill of Rights Act 1990, s. 23.

Overview of Oranga Tamariki Act 1989 The Oranga Tamariki Act 1989 creates two separate justice processes for children and youth. This differentiation is based on the attitude that younger people are more vulnerable and have a more immature judgment, and this should be accounted for. The different processes recognise the child or youth's offending in a manner that acknowledges their higher needs and vulnerability. Thus, levels of culpability are determined by age group. However, major legislative changes now allow children to be prosecuted if the crime is sufficiently severe.Children, Young Persons, and Their Families Act 1989, s. 272.

The Act aims to promote the well-being of children, young persons and their families. The process is aimed to reduce the levels of youth incarceration and constructively deal with issues and problems created by youth and children.Her Honour Judge Carolyn Henwood "The Children, Young Persons and Their Families Act 1989 (NZ) – A Judicial Perspective in 1997", Address on 22 July 1997 at Judicial Commission of New South Wales Seminar Series, published (1998) TJR 215, 215. This is done by holding the child or young person accountable for their behaviour and encouraging them to accept responsibility for their offending, while taking into account their needs and ensuring they are given the chance to develop beneficially from the experience.

Principles from Oranga Tamariki Act 1989 Principles governing youth justice reflect different objectives from traditional criminal prosecution.Children, Young Persons, and Their Families Act 1989, s. 4. These are: Avoidance of criminal proceedings when possible; Criminal proceedings are not to be used as a means of delivering welfare; Strengthening family and whanau; Keeping children and young persons in the community; Age as a mitigating factor; Sanctions should promote young person’s development within family and whanau, and be least restrictive in form; Regard for victims interests; and Special provisions to address vulnerability of children and young persons.

Definitions – Child and youth A child under the age of ten cannot be convicted of an offence.Crimes Act 1961, s. 21. If the child is aged 10 or 11, they can be prosecuted for murder or manslaughter. If the offender is aged 12 or 13, they can only be prosecuted for an offence if the maximum penalty is 14 years imprisonment or more, or if the maximum penalty is 10 years imprisonment or more if they are a repeat offender and the previous offence had a maximum penalty of 14 years imprisonment or more.Children, Young Persons, and Their Families Act 1989, section 272 All children aged between 10 and 13 have a rebuttable presumption of incapacity to commit a crime.Crimes Act 1961, s. 22. Young persons aged 14 to 16 may be prosecuted for any crime, unless a higher age limit is stated in the specific legislation (e.g. people under 16 cannot be sentenced to prison, if convicted of incest Crimes Amendment Act 2005, Section 130, https://www.legislation.govt.nz/act/public/2005/41/en/latest/#DLM346175:~:text=130,exceeding%2010%20years).

If the child is brought within the court system, the judge has a discretion to not use the criminal process and direct them towards social welfare.Crimes Act 1961, s. 280(a).

When the child offender does not fall into these categories, they are dealt with under the care and protection provisions of CYPTFA, or by the police, which are governed by youth justice principles.Children, Young Persons, and Their Families Act 1989, s. 280.

If between 14 and 17, the court will have regard to the age of the offender.Crimes Act 1961, s. 9(2)(a). If the crime is dealt with in the Youth Court, then the Youth Justice Act and youth principles will apply. However the offender can be sent to the District Court or High Court for sentencing or trial, where the Sentencing Act 2002 applies. Under the Sentencing Act 2002, a child or young person under 17 cannot be sentenced to prison or home detention unless they commit a Category 4 offence (e.g. murder, manslaughter, crimes against the State) or an offence where the maximum penalty is 14 years imprisonment or more.

In December 2016, the Fifth National Government passed the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 to expand the youth justice system to include most 17-year-olds. 17-year olds charged with serious offences would still be referred to the adult courts. These changes came into effect in 2019 and were consistent with the United Nations' 1989 Convention on the Rights of the Child, which defined a child as anyone under 18 years. The amended legislation was supported by the governing National Party, the opposition Labour Party, and human rights NGOs UNICEF and Just Speak. While the Police Association expressed cautious support, the law change was opposed by the populist New Zealand First party.

During the 2023 New Zealand general election, the libertarian ACT Party campaigned on reversing the law change and placing all 17 year olds back in the adult justice system. While ACT had previously supported the law change in 2017, the party's leader David Seymour said the party had reversed its policy due to the rising youth crime rate.

International context There are several international conventions that affect youth justice, most significantly the United Nations Convention on the Rights of the Child 1990 (UNCROC), which New Zealand ratified in 1993. This requires New Zealand to submit regular reports on the status of children's rights. The latest UN recommendations in response to this has expressed concern about the low age of criminal responsibility, and that NZ has lowered it from 14 to 12 for grave and repeated offences. There is also concern that Oranga Tamariki Act 1989 only extends youth justice protections to 17 years, where UNCROC has defined a "child" up unto 18 years. Once young people turn 17, they are dealt with in adult courts, although age can be taken as a mitigating factor.Becroft, Andrew J.'Children and Young People in Conflict with the Law: Asking the Hard Questions' in Juvenile and Family Court Journal, Issue 4 Fall 2006, p. 5.

In 2017, the Government passed legislation raising the youth justice age to include most 17-year olds, bringing New Zealand in line with the UNCROC.

Children and young persons justice processes The Oranga Tamariki Act 1989 established an alternative system of dealing with child and youth offenders through Family Group Conferences (FGC) and the Youth Court, with the exception of non-imprisonable traffic offences in the case of young persons. This is combined with various policies employed by the police to decrease the use of the court system when possible.

Family Group Conferences The first step is the FGC, which is used as both a pre- and post-charge mechanism.Children, Young Persons, and Their Families Act 1989, s. 247. They are designed to encourage collaborative decision-making by all affected parties, reflecting Maori custom.McElrea, F. 'Restorative Justice. The New Zealand Youth Court: A Model for Development in Other Courts?' at National Conference of District Court Judges, April 1994, Rotorua. Their purpose is to provide recommendation and make decisions that are thought to be "necessary or desirable in relation to the child or young person in respect of whom the conference was convened".Children, Young Persons, and Their Families Act 1989, s. 260. If a unanimous decision is not reached, the case can go to the youth court judge.

Pre-charge FGCs account for 40% of FGCs, and are employed to determine whether prosecution can be avoided. Post-charge, they determine how to deal with cases admitted or proved in the Youth Court.

Criticisms There is limited data on the effectiveness of FGCs.