Juveniles consistently with the UN Convention on the Rights of the Child
- The National
Inquiry into Children and the Legal Process
- The policing
- The Convention
on the Rights of the Child
- Relevant provisions
of the Convention
- Public space
- Summons and
procedures and admissibility of evidence
- Police interrogation
- Time limits
on police interviews
Indigenous children and children from a non-English speaking background
children with disabilities
- Taking identification
material from children
intoxicated child suspects
- Police accountability
- Further information
In 1997 the report
of a joint inquiry into children and the legal process undertaken at the
request of the then federal Attorney-General by the Human Rights and Equal
Opportunity Commission (now known as the Australian Human Rights Commission) and the Australian Law Reform Commission
(ALRC) was published. Titled Seen
and heard: priority for children in the legal process, the report
considers, among many other topics, how Australian policing practice could
become more consistent with the requirements of the UN Convention on
the Rights of the Child. This article briefly outlines the main findings
A child's first contact
with the juvenile justice system is usually a police officer. This contact
often occurs when the child is arrested or summonsed as a person suspected
or accused of a crime. Although children's involvement with the police
is not limited to this, many children's first contact results in a caution
and no further involvement in the juvenile justice system. The first contact
between young people and police is crucial to the development of child's
attitude to authority and the state.
Evidence to the inquiry
demonstrated that some children face particular difficulties in their
contact with the juvenile justice system. Indigenous juveniles aged 10
to 17 years, for example, are 21 times more likely to be in a juvenile
detention centre than the rest of the population of that age.
Education about children
and the legal process needs to work both ways. Educating young people
about the legal system and their rights and responsibilities can assist
them to participate effectively in society and should have a positive
effect on their relationships with authority figures such as the police.
Similarly, those working in roles dealing with children must be educated
and aware of children's rights if they are to respect them.
in Seen and heard were based on the Convention on the Rights
of the Child, ratified by Australia in December 1990. The Convention
contains internationally accepted standards for the treatment of children.
It provides a common standard for federal, state and territory governments
in fulfilling their obligations to all children while giving particular
support to disadvantaged or marginalised children. The Convention makes
it clear that children coming into conflict with the law are entitled
to certain basic standards of treatment. All rights set out in the Convention
apply to all children without exception. It is the obligation of every
government to protect children from any form of discrimination.
In ratifying the
Convention on the Rights of the Child, Australia has committed
itself to create laws, policies and take positive action to give effect
to and promote the Convention's provisions. The Convention is an important
reference point for federal, state and territory bodies working with children,
including police officers.
Article 37 requires
that children shall only be detained, arrested or imprisoned in accordance
with the law, for the shortest appropriate period of time and only as
a last resort. Detention which is arbitrary in the sense of being
discriminatory, not overseen by clear guidelines or contrary to accepted
notions of justice is to be prohibited.
Article 37(d) deals
with the child's right to confer with a legal practitioner prior to police
interview and to have the person present during the interview.
Article 40 specifies
that the aim of juvenile justice shall be to reintegrate the child into
society. It further dictates that the treatment of the child shall promote
his or her sense of dignity and worth.
Article 3 provides
that in all actions and decisions concerning children the best
interests of the child must be a primary consideration. This includes
the arrest decision, the bail decision and other juvenile justice actions.
Other articles in
the Convention also have relevance to juvenile justice. The Convention
covers everyone under 18.
between police and young people is particularly difficult when interacting
in public spaces. The inquiry was told young people are often stopped
and questioned by police without a proper reason. There is a need to develop
good practices for negotiating young people's use of public spaces with
special reference to the particular needs of children from Indigenous
and non-English speaking backgrounds.
In a number of jurisdictions
police can remove children from public places if they are considered 'at
risk of offending' even though they are not suspected of illegal activity.
This seriously compromises some fundamental rights for children, notably
their freedom of peaceful assembly and their freedom of association.
The inquiry opposed
arbitrary restrictions on the movement and assembly of young people who
have not committed an offence.
Youth curfews have
recently been proposed in a number of jurisdictions. Curfews compromise
fundamental rights of the child and are discriminatory on the basis of
age. Youth curfews should be repealed and national standards for juvenile
justice should provide that no jurisdiction should introduce laws, such
as curfews, to restrict the movement of young people not suspected of
Police in many jurisdictions
continue to rely heavily on arrest when dealing with young suspects. Despite
the Royal Commission into Aboriginal Deaths in Custody recommendation
that arrest be used only as a last resort for Indigenous young people,
the arrest rate for Indigenous children continues to be higher than for
Arrest can be a traumatic
and disturbing experience for a child and may be unnecessarily stigmatising.
In some cases arrest may perpetuate a cycle of crime. The Convention requires
that arrest be used as a last resort. Preferable options include a caution,
summons or court attendance notice when an officer decides to act on an
Arrest should not
be used purely as an investigative tool and children are not to be arrested
for their own 'welfare and safety'. It should be used as the last resort
option. It is more appropriate for 'at risk' children to be dealt with
by health and welfare services. To ensure that officers understand their
obligation to arrest only as a last resort, the inquiry recommended that
each police service provide officers with practical training on the circumstances
that justify arresting juvenile suspects. Further, officers should be
provided with the suitable cross-cultural training in an effort to reduce
arrest rates of young Indigenous suspects.
Ultimately, of course,
the arresting officer must be accountable for his or her actions and always
consider whether arrest is really necessary in the individual case.
The decision on arresting a juvenile suspect should, if found inappropriate
by a senior officer, be taken into account in the arresting police officer's
require police to notify a child's parents or guardians as soon as possible
of his or her apprehension. This obligation is reflected in legislation
in some but not all states. The inquiry recommended that all jurisdictions
that have not already done so should pass legislation providing that a
juvenile suspect's carers must be notified of his or her apprehension
as soon as possible.
Notifying the young
person's carers can, of course, in some cases, compromise the young person's
safety. Therefore, before notifying carers, police should consult the
young person to determine whether he or she has any objections to this
course of action.
an interview it is the officer's duty to caution the suspect against self-incrimination.
The right to silence is guaranteed under federal, state and territory
legislation and also in international law. The inquiry was told this information
is often not made sufficiently clear to young suspects. The problem seems
to be that the technical language used in the caution is difficult for
young people to understand. The language of the caution must be appropriate
to the age and understanding of the child. Where possible the information
should be available though a specially prepared video.
The inquiry also
recommended that, for children, only electronically recorded admissions
and confessions should be admissible in evidence.
The presence of an
'interview friend' is an important means to compensate for the serious
disadvantage experienced by young people being interviewed by police.
The role of the interview friend is to support to the young person and
to ensure that any statements made are voluntary.
An interview friend
might be a parent, guardian or a lawyer. If none of these people are available,
or if the young person is uncomfortable in the presence of a parent, the
role could be filled by a friend. If someone known to the suspect cannot
be located, then the interview friend must be a volunteer independent
third person selected from the community. It is very important that the
role of the interview friend be performed by an independent person and
not by a police officer.
The inquiry recommended
that, in order to implement national standards for interview friends,
their functions, responsibilities and powers should be defined by a statute.
An interview friend should have an opportunity to confer privately with
the child prior to the interview. Statements made in the absence of an
interview friend should not be admissible in evidence against the child.
The young suspect,
should have the right to choose his or her own interview friend. Where
the chosen interview friend has not received training in the role, he
or she should have the opportunity to watch a short video outlining the
responsibilities. A register of community volunteers willing to act as
interview friends for children should be maintained in all major cities.
There is no common
law right to lave a lawyer present during a police interview although
it is particularly important for a young person to have legal representation
early in the process to ensure that he or she does not plea guilty simply
because of the environmental pressure.
rights law adopted by Australia stipulates that young suspects are to
be informed of their right to confer with a legal practitioner prior to
police interview and to have the lawyer present during the interview.
The inquiry recommended
that a child suspected of an offence should have the statutory right to
access legal advice prior to police interview and that police must inform
the child of this right at the time of apprehension.
For young suspects
the police investigation period is an exhausting and uncertain time. To
ensure the least possible harm to the young person this period should
not extended beyond the absolute minimum required.
Children under suspicion
of a federal offence cannot be detained longer than 2 hours before being
bailed or brought before a magistrate. This time period can be extended,
however. Time taken travelling from the place of arrest to the police
station, or time during which the young person is too intoxicated to be
interviewed, does not count towards the two hours investigation period.
In most states and
territories the specified investigation period is 24 hours. The inquiry
recommended that state and territory law should mirror the federal provisions.
children and children from non-English speaking backgrounds have different
ways of communicating which can have a significant effect on the results
of a police interview. The most profound variation from Anglo-Celtic mores
is found in traditional Indigenous cultures.
The inquiry recommended
that national standards for juvenile justice should require that Indigenous
young people be assisted to understand their rights during police questioning.
All young suspects should have the right to an interpreter if they are
not reasonably fluent in English.
young people with intellectual disabilities it may be necessary to modify
interrogation techniques considerably. The inquiry recommended that all
police officers who are required to interrogate young suspects should
receive special training in identifying and communicating effectively
with those who have disabilities.
Provisions for taking
identification material from children vary considerably among the states
The federal government
has introduced legislation to reform the procedures for taking forensic
samples from young people suspected of a federal offence. The bill provides
that only a magistrate can authorise taking forensic samples from juvenile
suspects aged 10 to 17.
The inquiry recommended
that these provisions should be incorporated into the national standards
for juvenile justice.
For a child, already
intimidated by the physical environment, a strip search is an invasive
procedure that is potentially traumatic. A strip search should only be
conducted when absolutely necessary for evidence purposes.
The inquiry recommended
that national standards should provide that a child may be strip searched
only pursuant to a court order. The child should be legally represented
and have the right to oppose the application for the order.
In some states and
territories police have the power to detain intoxicated juveniles, even
if they are not charged with any crime.
Children should not
be detained on the basis of intoxication alone. Children with alcohol
and drug problems should not be dealt with as a police matter, but rather
be as 'at risk' and monitored medically to ensure that they do not harm
The inquiry recommended
that national standards for juvenile justice should require police to
avoid detaining intoxicated children. Instead police should liaise with
the relevant health authorities to find suitable medical alternatives.
A young person's
contact with the juvenile justice system can be stressful and traumatic.
The experience could put the young person at risk of inhumane treatment
or treatment inconsistent with the overall aims of reintegration into
society and increasing respect for the human rights of others.
Therefore there is
a need for systematic training for professional groups working with children.
Police specially trained in youth issues will encourage a better informed
approach to policing young people and improved cooperation between the
police service and young people.
Police training in
youth issues should deal with the context of children's lives with emphasis
on the variety of social, cultural and economic factors that contribute
to juvenile offending. Training would ideally include information on
- rights of young
- young people's
recreational use of public space
- the skills needed
to deal effectively and fairly with young people
- desired outcomes
in the policing of young people
- the role of the
other government agencies in the juvenile justice system
- community support
services to which young people can be referred.
The inquiry recommended
that national standards for juvenile justice should provide that at least
one officer on duty, at least at every major police station, is to be
a specially trained youth officer. That officer would deal with all issues
affecting young people.
Limitations on police
conduct when dealing with young people generally and young suspects in
particular are only effective if police officers are accountable for their
actions. However, many young people in focus groups conducted by the inquiry
stated that they had little trust or expectation that a potential complaint
about a police officer's actions would result in appropriate outcomes.
The inquiry recommended
that national standards for juvenile justice should require specific guidelines
for the handling of children=s complaints against police. These guidelines
should, in particular, include standards regarding timeframes for hearing
complaints and the desirability of dealing personally with the child filing
This article is intended
only as a brief guide to the policing aspects of Seen
and heard: priority for children in the legal process. For more
detailed information, refer to the full report.
updated 2 December 2001.