18.67 The relationship between police and young people is particularly difficult when they are interacting in public spaces. Children are highly visible on the streets because they tend to spend their time there socialising in groups. The majority of young people in the focus groups stated that young people are regularly hassled and harassed by police when hanging around together in public places. The harassment is said to be verbal and physical. Police often stop young people in the street and ask for their names and addresses without a good reason. A legal aid commission solicitor gave evidence that one police officer in Rockhampton estimated he had stopped 200 young people over the course of several nights.
Police think that every teenager out at night must be up to no good.
I hate being asked for my name and address when I’m only sitting at the station waiting for a train and when I refuse to give it they think you are hiding something.
18.68 These problems are also manifest in private spaces used for public purposes such as shopping and entertainment complexes where private security guards ‘police’ young people. For example, in 1995 the South Bank Corporation Act 1989 (Qld) was amended to enable private security guards to issue notices excluding people causing a public nuisance from the South Bank retail centre for up to 10 days. Conduct causing public nuisance is defined in the legislation as being drunk or disorderly or creating a disturbance. A young person who enters the area in breach of a notice commits a criminal offence. This means that private security guards can extend the scope of the criminal law, criminalising actions that would otherwise be lawful.
In practice this has meant that private security guards have even greater powers than the State police to exclude young people from certain city sites.
18.69 Young people who participated in a recent survey conducted for the Australian Youth Foundation expressed similar concerns about treatment by security guards as they did about treatment by police.
They follow you around as if you’re going to steal just because you’re young.
They usually watch us really carefully. More than anyone else. We get all the looks and scathing glances.
18.70 The Midland Gate shopping centre in Western Australia has taken a different approach, employing a youth worker. This has lead to greater co-operation between all members of the shopping centre community, including the manager, shopkeepers, young people and other customers. Vandalism, shoplifting and security costs at the centre have decreased.
18.71 The federal Government has recently announced a project on young people’s use of public space as part of NCAVAC. The project aims to develop models of good practice for negotiating young people’s use of public space, with attention being given to the particular needs of Indigenous young people and those from non-English speaking backgrounds.
18.72 The Inquiry considers that State and Territory governments should ensure that legislation does not empower private security organisations to extend the scope of the criminal law. OFC should convene a working party of relevant government, community and industry bodies, including the Business Council and retail traders’ associations, and young people to develop guidelines for security organisations dealing with young people in privately owned spaces used for public purposes. These guidelines should emphasise the benefits, both in terms of social development and crime prevention, of involving young people in commercial communities rather than alienating them. The guiding principles recently developed by the Australian Youth Foundation could be used as a basis for the guidelines.
Recommendation 203 Security organisations dealing with young people in privately owned spaces used for public purposes should not have the power to extend the scope of the criminal law.
Implementation. State and Territory governments should ensure that legislation and regulations enabling private security organisations to extend the scope of the criminal law are repealed. OFC should convene a working party of relevant individuals to develop guidelines for security organisations dealing with young people in privately owned spaces used for public purposes.
18.73 In a number of jurisdictions police have statutory power to remove children from public places if they are considered at risk of offending even though they are not suspected of illegal activity. For example, police in Western Australia have the power to apprehend a child who is away from his or her place of residence, not under the immediate supervision of a responsible person and ‘in physical or moral danger, misbehaving or truanting from school’ and escort the child home or to school. This section was used by Western Australian Police as the basis for the controversial Operation Sweep. Between January and March 1994, 500 young people were taken into custody pursuant to the provision.
18.74 The Children (Parental Responsibility) Act 1994 (NSW) gave police power to remove children under the age of 15 from public spaces if they not under the supervision of an adult to reduce the likelihood of a crime being committed or of the young person being exposed to some risk. The operation of this legislation was limited to pilot schemes in Orange and Gosford. It was widely criticised for the broad discretion given to police and the perceived disparate impact on certain groups of young people, such as Indigenous young people. An independent review of the legislation by the consultants Kearney McKenzie found that it was unlikely to have any impact on reducing juvenile crime. However, it was strongly supported by many local governments and by rural and regional communities.
18.75 The NSW Parliament has recently passed the Children (Protection and Parental Responsibility) Act 1997 (NSW) which repealed the 1994 Act and re-enacted it with a number of modifications. Under the legislation a local government council can apply to the NSW Attorney-General to have its area declared operational. Police will be empowered to remove young people from public spaces in operational areas and escort them to the home of a carer. Before declaring an area operational the NSW Attorney-General will have to be satisfied that adequate crime prevention or youth support initiatives will be in place.
18.76 The Act defines a child at risk as being in danger of being physically harmed or abused or being about to commit an offence. The age up to which a young person may be apprehended in this manner has been raised from 15 to 16. The legislation gives police considerable discretion in determining which children are in danger of harm or offending.
18.77 The Children (Protection and Parental Responsibility) Act 1997 (NSW) also establishes a juvenile crime prevention structure. Local government councils will be encouraged to adopt local crime prevention plans after community consul-tation. If the Attorney-General approves the plan as a safer community compact, the council will be eligible to apply for financial assistance for its implementation.
18.78 The crime prevention aims of the Act are laudable. However, the legislation remains problematic. It allows police to monitor youth behaviour that is not criminal. It sanctions preventive apprehension but provides little or no accountability for police actions or judicial supervision. It allows police to act on stereotypes about young people. Many submissions argued for the repeal of this and similar legislation in other jurisdictions. The Inquiry agrees with them.
18.79 The across the board youth curfews recently proposed in a number of jurisdictions are further extensions of preventive apprehension provisions. For example, the Northern Territory Government has recently proposed the use of electronic bracelets to impose a night time curfew on certain children.
Youth curfews represent a sweeping measure designed to clear the streets of young people once again, regardless of whether or not they have done anything wrong, much less illegal.
The Inquiry is opposed to arbitrary restrictions on the movement of young people who have committed no criminal offence. These restrictions breach the human rights of young people. If young people are at risk for welfare reasons they should be supported by the care and protection system not criminalised. Law enforcement responses to children at risk are inappropriate and increase the tension between young people and the police.
Recommendation 204 Laws that permit preventive apprehension of young people should be repealed.
Implementation. States and Territories that have such laws should arrange for their immediate repeal.
Recommendation 205 The national standards for juvenile justice should provide that no jurisdiction should introduce laws, such as curfews or extensions of criminal trespass, to restrict the movement of young people not suspected of any crime.
Specialist training and police officers
18.80 The Beijing Rules provide as follows.
In order to best fulfil their functions, police officers who frequently or exclusively deal with juveniles or who are primarily engaged in the prevention of juvenile crime shall be specifically instructed and trained. In large cities, special police units should be established for that purpose.
18.81 Many police stations in Australian cities have dedicated youth officers. For example, in November 1994 Victoria Police appointed 23 District Youth Advisers to develop and co-ordinate police/youth programs across the State. Since November 1995 their work has been complemented by that of station youth officers. Similar arrangements exist or are being developed in a number of other jurisdictions.
18.82 Contact between young people and police can have serious consequences for young people if it is adverse. There should be at least one officer trained in children’s issues in each patrol. In one officer stations, that officer must be appropriately trained. Each major station should have a specialised youth officer who deals only with matters involving young people. Properly trained police will encourage a better informed approach to policing young people and a greater rapport between the police service and the young people in a local area.
18.83 In her recent report on interaction between the AFP and young people in the ACT, the Commonwealth Ombudsman emphasised that the most effective way of improving adherence to police procedure is a combination of training and super-vision. There needs to be a continuing, structured and monitored training process.
…best practice guides [should] be developed which cover all aspects of police pract-ices concerning children. I consider that these should include not only a reference to the applicable law but also a series of prompts to alert an officer to consider that a situation involving a child requires a response which is different from the norm. Guidelines should require a series of action steps rather than be rigid rule books.
Police training in children’s matters should deal with the contexts of children’s lives and the variety of social, cultural and economic factors that contribute to juvenile offending. One of the aims of training should be to promote respectful inter-actions between police and young people. As one young person told the Inquiry
I treat the police with respect and they treat me the same way and that’s the way it should be at all times!
Recommendations concerning specific components of that training will be made throughout this chapter.
Recommendation 206 The national standards for juvenile justice should provide as follows.
Each police department should ensure that there is at least one officer trained in children’s issues in each patrol. Each major station should have a specialised youth officer who deals only with matters involving young people. Training for youth officers should include information on
— the rights of young people
— young people’s recreational use of public space
— the skills needed to deal effectively and fairly with young people
— the specific laws, rules and policies for the policing of 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.
Summons and arrest
18.84 In some jurisdictions legislation or police instructions restrict the circumstances in which children can be arrested. This is in addition to legislation and guidelines governing arrest generally.
18.85 Section 3W(1)(b) of the Crimes Act provides that a constable may arrest a person suspected of a federal offence without a warrant if proceedings by summons against the person would not achieve one or more of the following purposes
(i) ensuring the appearance of the person before a court in respect of the offence
(ii) preventing a repetition or continuation of the offence or the commission of another offence
(iii) preventing the concealment, loss or destruction of evidence relating to the offence
(iv) preventing the harassment of, or interference with, a person who may be required to give evidence in respect of the offence
(v) preventing the fabrication of evidence in respect of the offence
(vi) preserving the safety or welfare of the person.
The AFP has submitted that this provision provides reasonable tests against which decisions about whether to arrest or summons should be made and that it could form the basis of national standards in this regard.
18.86 Young suspects who are arrested under paragraph (vi) for their own welfare should be provided with appropriate health and welfare support services as soon as possible and prior to any interrogation. In other respects, the grounds listed in s 3W are appropriate bases for arrest.
18.87 The problem seems to be not that the restrictions on arresting juveniles are inadequate but that they are not complied with in enough cases. Police in many jurisdictions continue to rely heavily on arrest when dealing with young suspects. Arrest can be a traumatic and disturbing experience, particularly for children, and may be unnecessarily stigmatising. In practice, arrest may limit a child’s access to legal advice and place him or her at a greater relative disadvantage in the case than would proceeding by way of a summons or a court attendance notice. The fact of the arrest may also influence later police and court decisions and result in a more severe outcome for the child. Arrest should not be used purely as an investigative tool.
18.88 Police may sometimes decide not to arrest suspects and to rely instead on their ‘voluntary attendance’ to avoid statutory limitations on questioning. Whether this attendance is truly voluntary depends on the suspect’s understanding of his or her rights. Many adult suspects feel compelled to comply with police directions whether they have been arrested or not. This feeling of compulsion is likely to be exaggerated for young people who are already at a disadvantage in terms of experience and authority.
18.89 Indigenous children are arrested at a higher rate than non-Indigenous young people. For example, in 1994–95 46.6% of Aboriginal juvenile alleged offenders processed in Victoria had been arrested compared with 23.5% of non-Aboriginal children. In the same period in South Australia, 41.4% of young Aboriginal suspects were apprehended by means of arrest compared with 25.1% of young non-Aboriginal suspects. Six years ago the Royal Commission into Aboriginal Deaths in Custody recommended that arrest be used as a last resort against Indigenous young people. Clearly that is far from the case.
18.90 The 1994 ABS National Aboriginal and Torres Strait Islander Survey
…established a strong negative relationship between arrest rates and subsequent employment outcomes…The analysis found that, all other things being equal, the fact of having been arrested within the five years prior to the survey reduced the chances of employment by half.
In some circumstances, arrest may perpetuate a cycle of crime. The problem of inappropriate policing of Indigenous children should be addressed through a number of mechanisms, including cross-cultural training programs, monitoring of arrest rates and clear police instructions on the subject.
18.91 The Inquiry considers that a summons or court attendance notice should be preferred to arrest in dealing with young suspects. Arresting officers must be accountable for their actions. When scrutinising the charges that an arresting officer proposes to lay against a young person, the officer in charge should always consider specifically whether arrest was necessary in the individual case. If not, the matter should progress by way of summons. The number of arrests of young suspects considered to be inappropriate by senior officers should be taken into account in a police officer’s performance assessment.
18.92 The Inquiry is aware that in some cases arresting a young suspect will be enough in itself to defuse a difficult or dangerous situation. In these cases the arresting officer’s actions should not be grounds for criticism but the supervising officer should ensure that the matter continues by way of summons. The Inquiry supports the recent recommendation of the Wood Royal Commission that police be given training in informal problem solving and conflict resolution techniques to moderate behaviour and to defuse situations that have the potential to result in arrest.
18.93 There is sometimes a problem with delays in summonses being served. Submissions suggested that in some States it can take up to six months for a child to receive a summons. During the time taken to issue the summons children can be uncertain and anxious about status of the matter. In addition, they may forget details of the event and may no longer be able to give proper instructions to their legal advisors. Delay also affects the effectiveness of the criminal justice system. Children need to account for their misconduct and be disciplined for it as soon as possible after it occurs if they are to learn appropriate behaviour from the experience. The Inquiry considers that this problem should be addressed by each police service through reforms to administrative procedures. Police are not subject to time limits in their investigations but generally a young suspect should receive a summons within 2 months of an alleged offence.
Recommendation 207 The national standards for juvenile justice should include the following.
Police should only arrest a juvenile suspect if proceedings by summons or court attendance notice against the person would not achieve one or more of the following purposes
— ensuring the appearance of the person before a court in respect of the offence
— preventing a repetition or continuation of the offence or the commission of another offence
— preventing the concealment, loss or destruction of evidence relating to the offence
— preventing the harassment of, or interference with, a person who may be required to give evidence in respect of the offence
— preventing the fabrication of evidence in respect of the offence
— preserving the safety or welfare of the person.
Each police service should provide officers with practical training on the circumstances that justify arresting juvenile suspects.
When scrutinising the charges that an arresting officer proposes to lay against a juvenile, the officer in charge should consider whether arrest was necessary (as defined in the national standards for juvenile justice) in the individual case. If not, the matter should progress by way of summons. The number of arrests of young suspects considered to be inappropriate by senior officers should be taken into account in a police officer’s performance assessment.
Arrest should not be a bar to the subsequent issue of a summons or court attendance notice.
Each Australian police service should reform administrative procedures to ensure that summonses are served on young people within 2 months of the alleged offence.
In an attempt to reduce the arrest rate for young Indigenous suspects, each police service should provide officers with cross-cultural training, monitor arrest rates and provide clear instructions on the subject.
Notification of arrest
18.94 The Beijing Rules 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 the Northern Territory, Queensland, South Australia and the ACT. In other jurisdictions this matter is covered by police instructions only.
18.95 The Commonwealth Ombudsman recently reported on 20 cases of interaction between the AFP and young people in the ACT. Six cases involved complaints that juvenile suspects’ parents had not been advised that their child had been detained. In one instance, a 16 year old boy was arrested, interviewed, breath-tested and charged with a breach of his bail conditions without his parents being notified. This is despite the fact that notification is required by legislation in the ACT.
18.96 The Inquiry considers 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. However, before notifying carers police should consult the young person to determine whether he or she has any objections to this course of action. Where it appears that a child’s safety may be compromised by contacting his or her carers in this situation, the relevant community services department should be contacted instead. In addition, the police commissioner of each jurisdiction should ensure that police receive regular reminders of the importance of ensuring that young people’s carers are notified of their child’s detention in custody.
Recommendation 208 The national minimum standards for juvenile justice should provide that police should inform a young suspect’s carers or the relevant community services department, whichever is most appropriate in the particular circumstances, of his or her whereabouts as soon as possible after he or she is detained.
Recommendation 209 Police should receive regular reminders of the importance of ensuring that young people’s carers are notified of their child’s detention in custody.
Implementation. The police commissioner of each jurisdiction should ensure that officers receive these reminders.
Investigative procedures and admissibility of evidence
18.97 The Crimes Act determines how the police should investigate a possible breach of federal law. If the federal offence was committed at the same time as a State or Territory offence, federal law operates in addition to State or Territory provisions to protect the rights of suspected or accused people. Where the Crimes Act is silent about investigative procedures or where the State or Territory law is consistent with the federal law, the relevant law of the State or Territory operates. The High Court has said that the arrangement is important in ensuring
…that Federal criminal law is administered in each State upon the same footing as State law and avoids the establishment of two separate systems of justice.
18.98 Police interviews of young people suspected of committing a crime usually take place at the local police station in the general interview rooms. Before starting to question any person who has been arrested for a federal offence, police are required to advise the suspect of his or her right not to answer any questions. This is known as the caution against self-incrimination and is part of an accused person’s right to silence. A similar obligation arises under legislation or the common law in each of the States and Territories. Submissions to the Inquiry suggested that in practice children are not made sufficiently aware of their rights by federal, State or Territory police during questioning. This is a matter of serious concern.
The arena of police questioning remains one of the most controversial in the policing system as it relates to young people. It will tend to be at this moment that the vulnerability of the child or young person will make them susceptible to the pressures intrinsic to being detained by police. They may make self-incriminatory remarks or feel compelled to agree with suggestions made to them by police. Even if the police have not set out to deliberately ‘soften up’ or ensnare the suspect, the surroundings and the process itself are inherently intimidating and unsettling.
18.99 Section 215 of the Children, Young Persons and Their Families Act 1989 (NZ) provides a good model. It sets out the rights children should be informed of before being questioned by police, whether they have been arrested or not. These include the right to silence, the right to stop making a statement at any time and the right to make any statement in the presence of a legal practitioner.
18.100 Confessions or admissions made during police interviews by people suspected of committing federal crimes are generally inadmissible unless they have been tape recorded. This requirement also applies in several States.In NSW, for example, evidence of an admission is not admissible unless it has been recorded on audio or videotape. In Tasmania evidence of any confession or admission in relation to an indictable offence is not admissible unless it was videotaped.
18.101 The Inquiry considers that admissions and confessions by child suspects should only be admissible as evidence if they have been electronically recorded. This proposal was supported by a number of submissions. It was opposed by the Northern Territory Government which considered current legislative safeguards sufficient. The Western Australian Ministry of Justice did not think it practical. However, the proposal simply extends existing provisions in some States to all jurisdictions. The resource implications of the recommendation are not great. Electronic recording of interviews is an essential accountability mechanism. Smaller police stations should have facilities to tape record interviews if videotaping facilities are not available.
Recommendation 210 The national minimum standards for juvenile justice should require police to inform a child of his or her rights prior to interview in language appropriate to the age and understanding of the child. This information should be provided where possible through a specially prepared video.
Recommendation 211 The national standards for juvenile justice should provide that admissions and confessions by child suspects are only admissible as evidence if they have been electronically recorded.
18.102 The Crimes Act places restrictions on police questioning of people under arrest, particularly children. For example, before a police interview young people have the right to communicate with a friend or relative and a lawyer in circumstances where the conversation cannot be overheard. They have the right to have an adult interview friend present during questioning.
18.103 The presence of the interview friend is an important means of compensating for the disadvantage experienced by young people when being interviewed by police. Robert Ludbrook, former director of the National Children’s Youth Law Centre, has summarised the factors contributing to children’s disadvantage in this situation as vulnerability to pressure, socialisation to agree with adult authority figures, lack of verbal fluency and a tendency to make false confessions under expert or hostile questioning.
18.104 Under the Crimes Act, an interview friend may be a parent, a guardian or the young person’s legal practitioner. If none of these people is available the role may be filled by a friend or relative of the young person’s choice. If such a person cannot be located then the interview friend must be an independent person. In most States and Territories legislation requires that an independent third person be present to provide support to young people during police interview. For the purposes of this discussion all these support persons are referred to as interview friends.
18.105 The role of the interview friend can be problematic. He or she is not intended to act as an advocate for the child but is present as a support person and to discourage, by his or her presence, oppressive conduct by police to ensure that any statements made by the child are voluntary. Many children choose a parent as an interview friend. A parent or other independent adult may not be willing or able to protect the child’s interests. On occasions a parent may seek to have the child ‘taught a lesson’ and advise the child against his or her legal interests. The interview friend should not be seen as a substitute for a legal adviser, unless of course the particular person is legally qualified.
Parents may be as intimidated by the process as their children. While it is appropriate to have parents present, this should not be at the expense of legal support.
It is particularly important that the role of interview friend is not performed by a police officer. The role and responsibilities of the interview friend should be defined by statute.
18.106 A number of the young people in the focus groups said that the interview friend should be someone of the suspect’s choice. Many children prefer not to have their parents present during an interview because they get too upset. Young people should be able to choose who performs the role of interview friend. A person cannot support a child if the child does not feel confident and comfortable with that person in the role. If the child does not wish to choose or the person nominated cannot be contacted then a statutory order should continue to apply and an alternative interview friend should be provided. This would be similar to the position in New Zealand.
18.107 The federal Attorney-General’s Department does not support an amendment of this nature to the Crimes Act. It identified a risk that young suspects will nominate as interview friends accomplices whom police do not suspect at the relevant time. In addition, the Department considers that ‘children are often not the best judge of who has their best interests at heart’. The interview friend must be an effective support for young suspects. Ensuring this outweighs any remote risk that a suspect may choose an unsuspected accomplice to perform the role.
18.108 DRP 3 proposed that, where an interview friend is a relative or friend of the young suspect who has not received training in the role, a senior police officer should be required to explain it to him or her prior to any interview. Several submissions considered that the impartiality of the interview friend may be compromised in the eyes of the suspect if this role is performed by police. A suggested alternative is for the child suspect and the interview friend to watch a short video outlining the role of the interview friend prior to questioning. The Inquiry supports this proposal. The video could also contain information about the child’s rights during questioning as proposed at recommendation 210. In police stations where video facilities are not available, the suspect and interview friend should be given a plain language information pamphlet instead. This material should be prepared by each police service in consultation with the relevant community organisations and OFC.
18.109 Independent community members who are registered as potential interview friends should be given regular training in their responsibilities. Again, this process should be sufficiently independent of the police. The legal aid commission in each jurisdiction should provide this training in consultation with police and relevant community groups. Where a child suspect has a disability that reduces his or her ability to communicate, an interview friend with specialised training or experience in the relevant field should be appointed. Specialised training should also be provided for registered interview friends supporting young Indigenous suspects.
Recommendation 212 The national standards for juvenile justice should include the following.
An interview friend must be present during police questioning of a child suspect and have an opportunity to confer in private with the child prior to questioning. Statements made in the absence of an interview friend should not be admissible in evidence against the child.
The function, responsibilities and powers of the interview friend should be defined by statute. The definition should encompass the interview friend’s role in providing comfort, support and protection for the young person as well as ensuring the young person is aware of his or her legal rights. The interview friend should not be a substitute for legal advice or representation.
A child suspect should have the right to choose his or her own inter-view friend if he or she wishes provided that person is not suspected of involvement in the alleged offence. If the child does not wish to choose an interview friend the existing statutory order should apply.
Where an interview friend is a relative or friend of the young suspect who has not received training in the role he or she should be given the opportunity to watch a short video outlining his or her responsibilities prior to interrogation. The young person should also watch the video which should also inform the suspect of his or her rights during police interview. Where the police station does not have video facilities information brochures should be provided. This material should be prepared by each police service in consultation with relevant community organisations and OFC and should be conveyed in language easily understood by young people.
A register of individuals willing to act as interview friends for child suspects should be maintained in all major regions. Potential interview friends should be selected and trained by the relevant legal aid commission using the material proposed above. Otherwise they should have relevant qualifications or work experience.
Where a child suspect has a disability that impedes his or her ability to communicate, an interview friend with specialised training or experience in the relevant field should be appointed.
Specialised training should be provided for registered interview friends supporting young Indigenous suspects.
Recommendation 213 A child suspect should have the right to choose his or her own interview friend during police interviews concerning federal offences so long as that person is not suspected of involvement in the offence. If the child does not wish to choose an interview friend the existing statutory order should apply.
Implementation. Section 23K(3) of the Crimes Act should be amended to this effect.
Time limits on police interviews
18.110 The Crimes Act provides that people under eighteen years old must not be detained by police on suspicion of a federal offence for more than two hours before being released, on bail or otherwise, or brought before a magistrate. The invest-igation period can be extended once on application to a judicial officer for a period of up to eight hours if the young person is under arrest for a serious offence.
18.111 Some of the time that a child spends detained by police is not counted towards the two hour investigation period; for example, reasonable time spent travelling from the place of arrest to a police station or other place with appropriate investigative facilities is not included. For children in remote areas, this may entail a journey of several hours. The interview clock also stops if questioning is suspended or delayed because the suspect is intoxicated. This is known as ‘dead time’.
18.112 In most States and Territories legislation provides that young offenders must be brought before a court for a bail hearing as soon as practicable or within a specified or reasonable time. The specified period is generally 24 hours.
18.113 Few submissions were received on this matter. The Inquiry considers that the federal standard is reasonable and should be adopted nationally. Young suspects should not be worn down by exhaustion during police interrogation no matter how unintended this consequence is.
Recommendation 214 The national standards for juvenile justice should provide that the requirement in s 23C of the Crimes Act that people under 18 not be detained by police for more than two hours (excluding dead time) before being released, on bail or otherwise, or brought before a magistrate be mirrored in State and Territory legislation.
Questioning Indigenous children
18.114 There are significant cultural differences in the ways Indigenous and non-Indigenous Australians communicate in interview situations. These differences can have a significant effect on the results of police interviews of Indigenous young people, particularly those living in traditional communities. For example, silence is used as a positive and normal part of conversation by Indigenous people but can be interpreted by non-Indigenous police officers as a sign of non-co-operation or an indicator of guilt. Indigenous people often avoid eye contact when talking to an older person out of respect for that person. This custom can be misinterpreted by non-Indigenous people.
The special vulnerability of both young people and Indigenous people during police interrogation has been noted for many years. These vulnerabilities may be amplified when the person is both young and Indigenous.
18.115 In 1976 the Supreme Court of the Northern Territory formulated rules for police questioning of Indigenous people. The Anunga rules were designed ‘to remove or obviate some of the disadvantages from which Aboriginal people suffer in their dealings with police’. Importantly, the rules state that great care should be taken when formulating questions so that, so far as possible, the answer which is wanted or expected is not suggested in any way. This rule is intended to overcome problems associated with the phenomenon of ‘gratuitous concurrence’.
This is the tendency to say ‘Yes’ to any question (or ‘No’ to any negative question) regardless of whether or not the person agrees with the question or even understands it. It is a characteristic Aboriginal strategy for dealing with interviews, particularly in situations of serious power imbalance.
18.116 A number of the Anunga rules have been incorporated into the Crimes Act, for example, the suggestion that a support person be present during interview. If a parent, guardian, lawyer or friend is not available to act as an interview friend for an Indigenous child, the police must select someone from a list required to be maintained of names of people in the region who are suitable and willing to act as interview friends.
18.117 The lack of interpreters for Indigenous children involved in the criminal justice system was identified as a serious problem in consultations, particularly in remote areas where English may be the child’s third or fourth language. It is often difficult to find someone in the child’s community who has the necessary neutrality to act as the child’s interpreter. This is also an issue for young people who speak Aboriginal English. Section 23N of the Crimes Act gives federal suspects the right to an interpreter. However, unless there are sufficient people trained and accredited as interpreters of Indigenous languages this protection will have little benefit in practice for young suspects.
18.118 The Anunga rules have also been incorporated into police procedures in a number of States and Territories.Despite this, evidence from consultations suggests that many young Indigenous people do not understand their rights during police questioning. Indigenous children are particularly vulnerable when they are in police custody. Additional reforms are required to ensure equality for Indigenous children with their non-Indigenous counterparts during police questioning. These reforms should be lead by the States and Territories since their police have the most contact with Indigenous children. More Indigenous police and liaison officers are required as is comprehensive cross-cultural training for all officers to reduce arrest rates and improve interview techniques.
Recommendation 215 The national standards for juvenile justice should require Indigenous young people to be assisted to understand their rights during police questioning through processes developed in conjunction with Aboriginal legal services and other relevant Indigenous organisations.
Questioning children from a non-English speaking background
18.119 Children from non-English speaking backgrounds may also be vulnerable during police interrogation. Recent migrants and refugee children who have experienced human rights abuses in their communities of origin may be particularly disturbed by contact with authority figures.
The most superficial contact with the system may reactivate memories of abuse and terror and they are particularly vulnerable to making false confessions. They will probably be less likely to lodge a formal complaint when their rights are violated or, indeed, have no clear idea of what their rights are.
18.120 Section 23N of the Crimes Act gives a person suspected of a federal offence the right to an interpreter during police questioning where an investigating official believes that he or she is unable to communicate orally with reasonable fluency in the English language, either because of language difficulties or a physical disability. Questioning must be deferred until the interpreter is present. In 1991 the federal Attorney-General’s Department suggested that the Commonwealth should encourage all States to adopt uniform legislation to this effect. Currently, there is a statutory right to an interpreter only in Victoria, South Australia and the ACT.
18.121 All young suspects should have a statutory right to an interpreter during police interview if they are not fluent in English. To ensure this protection is effective, police should be trained to recognise factors that contribute to the need for an interpreter. A child who seems reasonably fluent in conversation with his or her peers on the street may nonetheless require an interpreter during formal interrogation.
Recommendation 216 Those States and Territories that have not already done so should enact legislation giving young suspects and their interview friends the right to an interpreter during police interview if they are unable to communicate orally with reasonable fluency in the English language. Each police service should ensure that its officers are trained in recognising communication difficulties in young suspects. These requirements should also be included in the national standards for juvenile justice.
Questioning children with a disability
18.122 Children with a disability may require greater assistance than other young people when being questioned by police. For those young people who have a communication handicap as a result of a physical condition, such as deafness or cerebral palsy, this may mean assisted communication either through trained interpreters or appropriate technology. These children are usually relatively easy to identify. However, police officers may have greater difficulty identifying children with intellectual disabilities, mental illness or behavioural disabilities such as autism. Some children with a disability or illness may be taken by police to be merely ‘slow’ or affected by drugs or alcohol.
Disturbed and mentally ill adolescents often end up in the juvenile justice system because no one has been able to recognise or deal with their underlying problems.
18.123 In a recent report, People with an Intellectual Disability and the Criminal Justice System, the NSW Law Reform Commission recommended that all relevant government agencies should include training on intellectual disability issues in their staff training program, in particular material on identifying and communicating effectively with people with an intellectual disability. The Commission specifically noted the increased vulnerability of juveniles with an intellectual disability when in police custody. The Inquiry supports the NSW Law Reform Commission recommendation in regard to young suspects but considers it should be broadened to include training on identifying and communicating effectively with young people with behavioural disabilities and mental illnesses.
18.124 For children with an intellectual or behavioural disability or a mental illness it may be necessary to modify interrogation techniques considerably. The NSW Law Reform Commission recommended that when questioning people with an intellectual disability police should be required to take into account
(i) the need to attempt to pitch the language and concepts used at a level which will be understood
(ii) the need to take extra time in interviewing
(iii) the risk of the person’s special susceptibility to authority figures, including a tendency to give answers that the person believes are expected
(iv) the dangers of leading or repetitive questions
(v) the need to allow the person to tell the story in his or her own words
(vi) the person’s likely short attention span, poor memory and difficulties with details such as times, dates and numbers
(vii) the need to ask the person to explain back what was said
(viii) the possibility that the person may be taking medication which may affect his or her ability to answer questions.
The Inquiry supports this recommendation.
Recommendation 217 All police officers who may be required to interrogate young suspects should receive specific training on identifying and communicating effectively with young suspects who have a physical, intellectual or behavioural disability or a mental illness.
Implementation. The AFP and all State and Territory police services should ensure this material is included in the relevant training programs as soon as possible. It should be developed in consultation with health experts and the OFC.
Taking identification material from children
18.125 In the investigation of a federal offence a police officer may only take identification material, including fingerprints and handwriting samples, from a suspect aged between 10 and 17 if the person has been charged or pursuant to a court order. Identification material can be taken from young people aged between 10 and 17 who are not suspects, such as witnesses, pursuant to a court order or if the child and his or her parent (or a person of the child’s choice who is capable of representing the child’s interests) consent in writing. Identification material can only be taken from a child under 10 years of age if he or she is not a suspect and on the order of a magistrate. A parent or person of the child’s choice capable of representing his or her interests must be present when identification material is taken from any child under 18 years of age, whether a suspect or not.
18.126 Provisions for taking identification material from children vary considerably among the States and Territories. In the ACT a court order must be obtained before identification material is taken from any child. In NSW, Victoria and the Northern Territory a court order is only required to take material from children under 14. In South Australia the permission of a commissioned officer is required if the child is under 16. In Tasmania there is no power to take identification material from a child prior to conviction. In Queensland a court order is required to take an identifying particular from any child charged with an offence. In Western Australia there are no specific legislative restrictions on taking identification material from children.
18.127 The federal Government has introduced legislation to reform the procedures for taking forensic samples from people suspected of federal offences. The Crimes Amendment (Forensic Procedures) Bill 1997 (Cth) distinguishes between non-intimate and intimate forensic procedures. Non-intimate forensic procedures are defined to include taking fingerprints, handprints, footprints or toeprints, taking samples from under nails and taking non-pubic hair samples. Intimate forensic procedures include taking blood samples, an external examination of the genital or anal areas, taking a sample of pubic hair or taking a dental impression.
18.128 The Bill provides that all forensic procedures carried out on suspects aged 10 to 17 must by conducted by order of a magistrate whether or not the child is in custody. This raises the level of external judicial scrutiny of forensic procedures carried out on children as a court order will be required even if the child has been charged with an offence. During the hearing for an order a child suspect must be present and represented by an interview friend. He or she may also have a legal practitioner present and may call or cross-examine any witnesses or address the judicial officer. If an application for an interim order is dealt with on the papers, the suspect must be given the opportunity to make a written submission.
18.129 The Inquiry supports these proposed reforms and considers that they should be incorporated into the national standards for juvenile justice. However, we consider that clause 23XN of the Bill should be modified. It provides that certain forensic procedures should be carried out by a person of the same sex as the suspect where practicable. The Inquiry agrees with Kreative Kids’ submission that forensic procedures should be conducted by a qualified person of the sex of the suspect’s choosing where possible to take account of situations where a suspect has been sexually assaulted by a person of the same sex in the past. If the suspect does not wish to exercise this choice, the search should be conducted by a person of the same sex as him or her.
Recommendation 218 Clause 23XN of the Crimes Amendment (Forensic Procedures) Bill 1997 (Cth) should be amended to provide that forensic procedures should be conducted by a qualified person of the sex of the suspect’s choosing. If the suspect does not wish to exercise this choice, the search should be conducted by a person of the same sex as him or her.
Implementation. The Attorney-General should seek to amend the Bill before its passage.
Recommendation 219 The national standards for juvenile justice should mirror the provisions (as amended in accordance with recommendation 218) regarding young suspects in the Crimes Amendment (Forensic Procedures) Bill 1997 (Cth).
18.130 Police are empowered to conduct a frisk search of any person who is arrested for a federal offence to ascertain whether the person is carrying any seizable items. If an officer reasonably suspects that an arrested person is carrying evidential material in relation to an offence or a seizable item he or she can also conduct an ‘ordinary search’ of the person. In regard to frisk and ordinary searches, the same provisions apply to child federal offenders as to adult offenders. The Commissions consider this appropriate.
18.131 A person arrested for a federal offence may be strip searched only if a police officer reasonably suspects that he or she is concealing evidence, that a visual inspection of the person’s body will provide evidence or that the search is necessary to recover evidence. An officer of the rank of at least superintendent must authorise the search. A strip search may include requiring the person to remove all of his or her clothes and a visual examination of the person’s body but no search of the person’s body cavities is permitted. The search must be conducted in private by an officer of the same sex as the person being searched.
18.132 Additional restrictions apply to the strip searching of young people. A child under 10 years of age may not be strip searched during the investigation of a federal offence. A young person aged between 10 and 17 can be strip searched only if he or she has been charged or if the search is ordered by a magistrate. A parent or another person of the child’s choice who is capable of representing the child’s interests must be present during the strip search.
18.133 There are fewer legislative limitations on strip searching child suspects in most States and Territories. For example, in South Australia any person who has been charged with an offence can be searched by a medical practitioner at the request of a senior officer. In the Northern Territory a police officer can search a person who has been charged with an offence although no more clothing than reasonably necessary may be removed. Under Victorian law a physical examination of the body is defined as a forensic procedure. Forensic procedures can only be carried out on those aged between 10 and 17 by order of the Children’s Court.
18.134 Evidence given by young people at focus groups suggests that sometimes police do not conduct strip searches in an appropriate manner. One boy said he had been strip searched on a main street at 10 pm one night. No attempt was made to conduct the search in a private place. We heard of one girl who, after being detained for an alleged motor vehicle offence, was strip searched in a cell with other juveniles present, some of them boys. The search was conducted by a male officer. These concerns have been raised in a number of other inquiries.
We have come across a number of cases where searches have been conducted without recourse to the protections accorded by regulations. Particular concerns have been expressed about public searches of young people on the street, sometimes involving the full removal of clothing or more than a pat down or frisk.
18.135 Evidence given to the ALRC’s inquiry into complaints against the AFP and the National Crime Authority confirms that AFP officers frequently fail to comply with the requirements of the Crimes Act when strip searching people, especially women. Unnecessary or illegally conducted strip searches has been identified as a particular problem for Indigenous girls.
18.136 A strip search is an invasive procedure that is potentially traumatic for an adult, let alone a child who may already be intimidated by the physical environ-ment. These searches should only be conducted when absolutely necessary for evidentiary purposes and not as an exercise in humiliation. The Commissions consider that strip searches should only be performed on young suspects pursuant to a court order.
Recommendation 220 The national standards for juvenile justice should provide that a child may be strip searched only pursuant to a court order. The child should have the right to oppose the application for the order and should be legally represented in the proceedings. Strip searches should only be conducted by a qualified person of the sex of the suspect’s choosing. If the suspect does not wish to exercise this choice, the search should be conducted by a person of the same sex as him or her.
Recommendation 221 Children charged with federal offences should only be strip searched pursuant to a court order. The child should have the right to oppose the application for such an order and should be legally represented in the proceedings. Strip searches should be conducted by a qualified person of the sex of the suspect’s choosing. If the suspect does not wish to exercise this choice, the search should be conducted by a person of the same sex as him or her.
Implementation. Section 3ZI of the Crimes Act should be amended to this effect.
Detaining intoxicated child suspects
18.137 In Western Australia and the Northern Territory police have statutory power to detain intoxicated people, including juveniles, in police custody even if they have not been charged with an offence. The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families received evidence that on one particular occasion over 50% of the juveniles detained in police cells in the Kimberley region were there because of alcohol use.
18.138 Young people should not be detained in police cells solely because they are intoxicated by alcohol or other drugs. These children need to be monitored medically and to ensure they do not harm themselves. This should not a police function. Attending to their health needs must have absolute priority over any criminal action. Each police service should liaise with the relevant health authorities to find suitable alternatives to police cells in each region where appropriate places are not already proclaimed or gazetted. State and Territory governments should take immediate responsibility for establishing facilities in regions where they do not exist.
Recommendation 222 The national standards for juvenile justice should require police to avoid detaining intoxicated young suspects in police cells. Police services in each State and Territory should liaise with the relevant health authorities to find suitable alternatives in each region where appropriate places are not already proclaimed or gazetted.
18.139 Limitations on police conduct during formal interviews are effective only if police are accountable for their treatment of young people before and after the interview through an effective complaints mechanism.
18.140 A number of young people in focus groups alleged that they had been threatened or assaulted by police while being arrested or while in custody. Generally little or no independent evidence concerning police conduct is available for the period before the arrival of the interview friend. Admissions made outside the formal interview, for example during preliminary enquiries, are usually not admissible in court. However, coercive or intimidatory tactics at an earlier time are likely to have a significant effect on the child’s state of mind when the interview takes place or if the child later appears in court.
18.141 Many young people are aware of avenues for complaints about police conduct. However, young people consistently stated that they had no expectation that their complaints would result in appropriate outcomes. Indeed, they thought complaining was likely to result in adverse police attention in future.
Young people and youth advocates point to a general lack of knowledge among young people about the procedure for making complaints about police [and] a lack of trust in the process…
18.142 The ALRC report on complaints against the AFP and the National Crime Authority recommended that a National Integrity and Investigations Commission be established to investigate or supervise the investigation of complaints against both bodies. The Inquiry endorses this recommendation and considers that the National Integrity and Investigations Commission should include investigatory officers with specialised training in dealing with complaints made by young people. Similar expert officers should also be included in each State and Territory police complaints system.
18.143 The AFP and all State and Territory police should be required to lodge copies of complaints made by young people with the appropriate complaints handling body. These bodies are discussed in more detail at paragraphs 7.33-43. The national standards for juvenile justice should include specific guidelines for the handling of complaints against police by children. In particular, they should include standards regarding time limits for hearing complaints and the desirability of dealing personally, rather than in writing, with the child. The guidelines should incorporate the principles enumerated in recommendation 13.
18.144 Official visitor schemes established in police stations in a number of jurisdictions seem to be an effective supplementary means of improving police accountability for the treatment of juvenile suspects. Under these schemes, community volunteers visit police stations unannounced to monitor police practices and to give young people an opportunity to make complaints to an independent third party. Official visitors schemes should be introduced nationally.
18.145 The Aboriginal Legal Service of Western Australia has submitted that complaints made by Aboriginal young people should be investigated by Aboriginal officers wherever possible. The Inquiry supports this proposal in principle provided it does not lead to Indigenous police officers being limited to a complaints handling function.
18.146 For many breaches of procedural requirements, the courts may provide an accountability mechanism. Judicial officers have a discretion to exclude evidence that has been improperly or illegally obtained. DRP 3 proposed that failure to comply with the national standards for juvenile justice should be the basis for the exercise of a discretion by judicial officers to exclude evidence. Some government and police submissions considered this reform unnecessary in the light of current evidence laws. However, as one submission pointed out, the current law regarding the exclusion of improperly or illegally obtained evidence does not distinguish between children and adults.
In balancing considerations of justice and public policy, the obligation for police compliance with procedural standards should be stronger where suspects are children.
The Inquiry considers that the training for judicial officers hearing juvenile justice matters proposed at recommendation 236 should include information on excluding improperly obtained evidence in juvenile matters. Specifically, judicial officers should be advised that failure to comply with the national standards for juvenile justice is prima facie evidence of impropriety. Any prosecutor responsible for a juvenile case in which evidence is challenged as improperly or unfairly obtained should be required to report the matter to the relevant ombudsman.
Recommendation 223 The national standards for juvenile justice should require that the AFP and all State and Territory police lodge copies of all complaints made by young people with the appropriate complaints handling body (see paras 7.33-43). The standards should include specific guidelines for the handling of children’s complaints against police. In particular, they should include standards regarding time frames for hearing complaints and the desirability of dealing personally, rather than in writing, with the child.
Recommendation 224 The national standards for juvenile justice should require the establishment of community visitor schemes in all regions. A national evaluation of these schemes should be conducted by OFC.
Recommendation 225 Police failure to comply with the national standards for juvenile justice on investigation and interviewing procedures should prima facie be the basis for the exercise of a discretion by judicial officers to exclude evidence as improperly or unfairly obtained.
Implementation. The judicial training proposed at recommendation 236 should include material on the particular restrictions governing the adducing of evidence against young defendants. The training should also make clear the particular vulnerabilities of young people in police custody. Any prosecutor responsible for a juvenile case in which evidence is challenged as improperly or unfairly obtained should be required to report the matter to the relevant ombudsman.
 See R White ‘The business of youth crime prevention’ in P O’Malley & A Sutton (eds) Crime Prevention in Australia: Issues in Policy and Research Federation Press Sydney 1997, 167; H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995 ch 3; R White et al Any Which Way You Can: Youth Livelihoods, Community Resources and Crime Australian Youth Foundation Sydney 1997, 66–73; H Blagg & M Wilkie ‘ Young people and policing in Australia: The relevance of the UN Convention on the Rights of the Child’ (1997) 3(2) Australian Journal of Human Rights 134, 137.
 Hobart Focus Group 30 May 1996; Perth Focus Group 1 July 1996; Darwin Focus Group 15 July 1996; Alice Springs Focus Group 19 July 1996.
 Darwin Focus Group 15 July 1996; Alice Springs Focus Group 19 July 1996.
 Hobart Focus Group 30 May 1996. Young people in the Darwin Focus Group 15 July 1996 said that police seem to have some individuals under surveillance, keeping records of their personal details and movements in public spaces in a kind of log book.
 W Jones, Qld Legal Aid Public Hearing Submission Rockhampton 1 August 1996.
 Survey Response 53.
 Survey Response 22.
 See R White ‘Regulating youth space’ (1997) 22 Alternative Law Journal 30, 31. Townsville Community Legal Service DRP Submission 46 gave the example of a group of eight children who were allegedly banned from the public shopping mall in Townsville city early in 1996.
 s 37B.
 s 37A.
 s 37B(6).
 R White ‘Regulating youth space’ (1997) 22 Alternative Law Journal 30, 31. See also G Murray ‘Public spaces — The visibility of NESB young people and bowlers’ (1996) 21 Alternative Law Journal 80.
 R White et al Any Which Way You Can: Youth Livelihoods, Community Resources and Crime Australian Youth Foundation Sydney 1997, 123. See also Tranby College Focus Group 10 June 1997.
 R White ‘Regulating youth space’ (1997) 22 Alternative Law Journal 30, 32.
 See R White ‘The business of youth crime prevention’ in P O’Malley & A Sutton (eds) Crime Prevention in Australia: Issues in Policy and Research Federation Press Sydney 1997, 174–175.
 See NCAVAC Unit Young People’s Use of Public Space — Project Summary No 9 Attorney-General’s Dept Canberra 1997.
 This proposal was supported by Youth Advocacy Centre DRP Submission 14; Townsville Community Legal Service DRP Submission 46;Juvenile Justice Advisory Council of NSW DRP Submission 53; Qld Police Service DRP Submission 56; NSW Youth Justice Coalition DRP Submission 91. The proposal was also supported by the WA Ministry of Justice DRP Submission 73 although it does not support the suggested implementation strategy but considers that guidelines should be a matter for each State or Territory.
 R White, G Murray & N Robins Negotiating Youth-Specific Public Areas: A Guide for Youth and Community Workers, Town Planners and Local Councils Australian Youth Foundation Sydney 1996, 15–17.
 Child Welfare Act 1947 (WA) s 138B(1).
 S Boyle ‘Whose identity crisis?’ (1994) 5 Polemic 5. cf K Moran DRP Submission 57.
 ss 11–12.
 See eg T O’Sullivan ‘City of fear’ (1995) 20 Alternative Law Journal 94.
 A Hoy ‘Mayors hail law to let police nab youths’ The Sydney Morning Herald 12 March 1997, 6.
 Pt 3 Div 1.
 Pt 3 Div 2.
 s 14(3).
 s 19(3).
 s 18(b).
 Pt 4.
 Townsville Community Legal Service DRP Submission 46; Juvenile Justice Advisory Council of NSW DRP Submission 53; National Children’s and Youth Law Centre DRP Submission 59; Law Society of NSW DRP Submission 90; NSW Youth Justice Coalition DRP Submission 91. The NT Government DRP Submission 71 opposed repealing such legislation because it considers it would interfere with police use of other legislative powers. NSW Government DRP Submission 86 stated that ‘[l]aws dealing with the prevention of crime by young people are a matter for the States and Territories’.
 Currently, young offenders in Vic, SA, WA and the NT can be subject to individual curfews as a condition of certain orders: Children and Young Person’s Act 1989 (Vic) ss 144(3)(d), 159(4)(e), 164(3), 172(3); Young Offenders Act 1993 (SA) s 26; Young Offenders Act 1994 (WA) s 73(2); Juvenile Justice Act 1983 (NT) s 53(1)(d)(iv). Youth curfews are common in US cities: KA Kalvig ‘Oregon’s Parental Responsibility Acts’ (1996) 75 Oregon Law Review 829 fn 7.
 C Ryan ‘Territory looks at electronic bracelets to keep track of children’ The Sydney Morning Herald 10 September 1997, 2. See also Street Safety Bill 1996 (NSW).
 R White ‘Regulating youth space’ (1997) 22 Alternative Law Journal 30, 31. See also R White ‘Ten arguments against youth curfews’ (1996) 15(4) Youth Studies Australia 28.
 eg CROC art 15.
 r 12.1.
 Vic Police Youth Policy Statement: Background Youth Advisory Unit Melbourne 1997 10.
 The NSW Police Service is in the process of introducing dedicated Youth Liaison Officers. A training unit to be included in the police curriculum is also being developed: Juvenile Justice Advisory Council of NSW DRP Submission 53. Community liaison officers within the Qld Police Service liaise with a variety of organisations including those targeting youth: Qld Police Service DRP Submission 56. The NT Government DRP Submission 71 submitted that dedicated youth officers would not be cost-effective given the size of the Territory. It considered programs such as the School Based Constable Scheme to be adequate.
 These proposals are supported by Kreative Kids DRP Submission 35; Education Centre Against Violence DRP Submission 43; Townsville Community Legal Service DRP Submission 46; Juvenile Justice Advisory Council of NSW DRP Submission 53; AFP DRP Submission 66; NSW Youth Justice Coalition DRP Submission 91. cf NT Government DRP Submission 71 which considered the resource implications too great.
 Cth Ombudsman The Interaction Between the Australian Federal Police and the Youth in the ACT: Own Motion Investigation Cth Ombudsman Canberra 1997, 5.
 id rec 1.
 Survey Response 107.
 See recs 207, 216-17, 228.
 eg in NSW proceedings against children must generally be by way of summons: Children (Criminal Proceedings) Act 1987 (NSW) s 8. A similar provision appears in AFP General Instruction 13. s 128 of the Children and Young Persons Act 1989 (Vic) limits the circumstances in which the court will issue a charge and warrant to arrest rather than a bare summons. See also Juvenile Justice Act 1992 (Qld) s 23; WA Commissioner’s Orders and Procedures J105; Tasmanian Police Commissioner’s Standing Orders and Instructions s 106.4; NT Police General Order C3, 6.1.
 DRP Submission 66. There are similar provisions and proposals in other jurisdictions: eg Juvenile Justice Act 1992 (Qld) s 20(2); Youth Justice Bill 1997 (Tas) cl 24.
 eg H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995, 77. See also paras 2.84-85 for statistics.
 id 88. The Wood Royal Commission recently recommended the development of strategies to ensure that arrest is used as the intervention of last resort in regard to all suspects: Final Report Vol II: Reform NSW Government 1997 rec 137.
 See H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995, 77.
 See Qld Criminal Justice Commission Defendants’ Perceptions of the Investigation and Arrest Process Qld Criminal Justice Commission Brisbane 1996, 17; H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995, 87–88.
 See Qld Criminal Justice Commission Defendants’ Perceptions of the Investigation and Arrest Process Qld Criminal Justice Commission Brisbane 1996, vi.
 National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC Sydney 1997, 516–518.
 M Mackay Victorian Criminal Justice System Fails ATSI Youth: Discussion Paper Monash University Koorie Research Centre Melbourne 1996, 9.
 J Wundersitz The South Australian Juvenile Justice System: A Review of its Operation Office of Crime Statistics Adelaide 1996, 204.
 National Report vol 4 AGPS Canberra 1991 rec 239. There is a ‘widespread failure to implement this recommendation’: Office of the Aboriginal and Torres Strait Islander Social Justice Commissioner Indigenous Deaths in Custody 1989–1996 ATSIC Canberra 1996, 78.
 C Cunneen & D McDonald Keeping Aboriginal and Torres Strait Islander People Out of Custody: Evaluation of the Implementation of the Recommendations of the Royal Commission Into Aboriginal Deaths in Custody ATSIC Canberra 1997, 178–179.
 ABS 1994 National Aboriginal and Torres Strait Islander Survey: Employment Outcomes for Indigenous Australians ABS Canberra 1995, 2.
 See also paras 18.139-146 regarding police accountability.
 Final Report Vol II: Reform NSW Government Sydney 1997 rec 139.
 Church Network for Youth Justice IP Submission 212; Oz Child Legal Service IP Submission 195.
 r 10.1. The same principle is contained in UN Standard Minimum Rules for the Treatment of Prisoners r 92.
 Juvenile Justice Act 1983 (NT) s 30; Juvenile Justice Act 1992 (Qld) s 22(a); Young Offenders Act 1993 (SA) s 14(2)(c); Children’s Services Act 1986 (ACT) s 32. s 35 of the Children’s Services Act 1986 (ACT) requires police to notify parents of any charges being laid against a child. As well as notifying parents of a child’s arrest, Qld police must notify them of any attendance notice or summons served on a child: Juvenile Justice Act 1992 (Qld) ss 28(a), 32(2)(a).
 See eg WA Commissioner’s Order J111.
 Cth Ombudsman The Interaction Between the Australian Federal Police and the Youth in the ACT: Own Motion Investigation Cth Ombudsman Canberra 1997, 21.
 See H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995, 89–90.
 Pt IC.
 s 23A(5).
 Crimes Act s 23A(2).
 Murphy v R (1985) 158 CLR 596. See also Leeth v R (1992) 174 CLR 455.
 Crimes Act s 23F.
 The right to silence is guaranteed by CROC art 40(2)(b)(iv) and ICCPR art 14(3)(g).
 eg Summary Offences Act 1953 (SA) s 79A(3)(b); Crimes Act (Vic) s 464A(3); Criminal Law (Detention and Interrogation) Act 1995 (Tas) s 4(5). In NSW, evidence of statements made during police questioning is taken to be obtained improperly and may be excluded if the caution was not given prior to questioning: Evidence Act 1995 (NSW) s 139.
 eg Oz Child Legal Service IP Submission 195; Wagga Wagga Focus Group 9 May 1996; Darwin Focus Group 15 July 1996;Darwin Practitioners’ Forum 16 July 1996; K Wright, Alice Springs Youth Accommodation and Support Service Public Hearing Submission Alice Springs 18 July 1996.
 H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995, 115.
 Crimes Act s 23V.
 Crimes Act 1900 (NSW) s 424A(2).
 Criminal Law (Detention and Interrogation) Act 1995 (Tas) s 8(2). There are similar provisions in SA,Vic and WA: Summary Offences Act 1953 (SA) s 74D; Crimes Act 1958 (Vic) s 464H; Criminal Code (WA) s 570D. The Qld Police Service Operational Procedures Manual states that it is policy for all interviews of child suspects to be electronically recorded: 5.6.16.
 eg Townsville Community Legal Service DRP Submission 46; National Children’s and Youth Law Centre DRP Submission 59; NSW Youth Justice Coalition DRP Submission 91. See also National Inquiry into the Removal of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC Sydney 1997 rec 53b r 8.
 DRP Submission 71.
 DRP Submission 73.
 The Wood Royal Commission recently recommended the supply of hand-held recorders to investigators to record dealings with suspects before formal interview: Final Report Vol II: Reform NSW Government Sydney 1997 rec 118.
 ss 23G, 23K(1).
 Police Questioning of Young People: The Role of the Independent Adult — Discussion Paper National Children’s and Youth Law Centre Sydney 1994, 3.
 s 23K(3).
 Several jurisdictions have a provision that applies to all police interviews of young people: Crimes Act 1958 (Vic) s 464(E); Summary Offences Act 1953 (SA) s 79A. In addition, the Young Offenders Act 1993 (SA) s 7 provides that an independent person must be present for the signing of a confession. In the NT and the ACT the requirement that a parent or independent person be present at interview applies only if the child has been charged with a serious offence: Juvenile Justice Act 1983 (NT) s 25; Children’s Services Act 1986 (ACT) s 30. In NSW a statement from a child is not admissible in proceedings unless an independent adult was present at interview: Children (Criminal Proceedings) Act 1987 (NSW) s 13. In Qld the same rule applies if the child has been charged with an indictable offence: Juvenile Justice Act 1992 (Qld) s 36.
 eg young people are critical of the performance of some Justices of the Peace in this role because they usually tell children to assist the police by answering their questions: Brisbane Focus Group 29 July 1996.
 An interview friend can be excluded from the interrogation of an alleged federal offender if he or she interferes with it: Crimes Act s 23K(2). cf the Australian Youth Foundation which considers that the interview friend should act as an advocate for the child ‘[i]n order to balance the inherent asymmetry of power relationships and to provide advice at what is, in reality, the moment in the justice process when guilt or innocence are [sic] established. Simple neutrality is not enough’: H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995, 119.
 See K Warner ‘The legal framework of juvenile justice’ in R White & C Alder (eds) The Police and Young People in Australia Cambridge University Press Melbourne 1994.
 H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995, 120.
 National Legal Aid DRP Submission 58 suggested that this continues to happen at some police stations.
 Hobart Focus Group 30 May 1996; Tranby College Focus Group 10 June 1997.
 Perth Focus Group 1 July 1996.
 This proposal is supported by R Ludbrook Police Questioning of Young People: The Role of the Independent Adult — Discussion Paper National Children’s and Youth Law Centre Sydney 1994, 1, 23–25. cf Law Society of NSW DRP Submission 90 which considers that the interview friend should be a responsible person approved by the suspect’s parent/s or a legal practitioner.
 Under the Children, Young Persons and Their Families Act 1989 (NZ) s 222(1) young suspects can nominate any adult to act as an interview friend. If a child refuses to nominate someone a police officer can nominate any adult other than a police officer to perform the role.
 DRP Submission 52.
 eg Federation of Community Legal Centres (Vic) DRP Submission 72. The NT Government DRP Submission 71 considered this level of formalisation unnecessary.
 D Sandor DRP Submission 30.
 The guide prepared by the WA Police could be used as a starting point: WA Commissioner’s Orders and Procedures J206.
 In some jurisdictions police are already required to maintain a list of adults willing to act as interview friends. eg Children (Criminal Proceedings) Regulation 1995 (NSW) reg 6.
 Youth Advocacy Centre DRP Submission 14; D Sandor DRP Submission 30; National Children’s and Youth Law Centre DRP Submission 59; Federation of Community Legal Centres (Vic) DRP Submission 72; NSW Ombudsman DRP Submission 80. The NT Government DRP Submission 71 acknowledged that there may be a conflict of interest in police training interview friends although it considers that formal selection and training should not be necessary.
 The National Children’s and Youth Law Centre DRP Submission 59considered that legal practitioners and child psychologists should have input in the training.
 This proposal was supported by Autistic Association of NSW DRP Submission 40 andMental Health Legal Centre DRP Submission 54.
 See para 18.116.
 s 23C(4)(a).
 s 23D. These time limit provisions were introduced in 1991 in response to the 1990 review of federal criminal law: Hansard (H of R) 15 November 1990, 4222.
 s 23C(7)(a).
 s 23C(7)(e).
 See paras 18.160-162. In SA no suspect may be questioned for longer than 8 hours: Summary Offences Act 1953 (SA) s 78(2)(a).
 The Crimes Amendment (Police Detention Powers After Arrest) Bill 1996 (NSW) proposes enabling police to detain a person, including children, after arrest for a maximum period of 4 hours or 12 hours with a detention warrant. The Wood Royal Commission recommended that the Bill be enacted as soon as possible: Final Report Vol II: Reform NSW Government Sydney 1997 rec 135.
 The WA Ministry of Justice DRP Submission 73 considered that interview time limits should be at the discretion of the relevant police service.
 For a fuller discussion of police interrogation of Indigenous suspects see ALRC Report 31 Recognition of Aboriginal Customary Law vol 1 AGPS Canberra 1986 ch 22.
 D Eades ‘Cross-examination of Aboriginal children: The Pinkenba case’ (1995) 3(75) Aboriginal Law Bulletin 10, 11. See also D Mildren ‘Redressing the imbalance against Aboriginals in the criminal justice system’ (1997) 21 Criminal Law Journal 7.
 National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families Bringing Them Home HREOC Sydney 1997, 518.
 R v Anunga and ors (1976) 11 ALR 412, 415. The Court suggested that the Anunga rules could apply equally to interviews with people from non-English speaking backgrounds: 413.
 D Eades ‘Cross-examination of Aboriginal children: The Pinkenba case’ (1995) 3(75) Aboriginal Law Bulletin 10.
 s 23H(7). This provision was inserted in 1991 and implements the Royal Commission into Aboriginal Deaths in Custody National Report vol 4 AGPS Canberra 1991 rec 244.
 Crimes Act ss 23J, 23K(3)(c).
 Legal Practitioners’ Forum 16 July 1996; V McLintock Public Hearing Submission Darwin 17 July 1996; D Dalrymple Public Hearing Submission Darwin 17 July 1996; Central Australian Aboriginal Child Care Service Public Hearing Submission Alice Springs 18 July 1996; Tranby College Focus Group 10 June 1997. The Australian Reconciliation Convention recently expressed its support for the right of Aborigines and Torres Strait Islanders, who do not have English as a first language, to have interpreters in the justice system: (1997) 19 Walking Together 13.
 ‘Aboriginal English is the dialect of English spoken by most Aborigines today in its different varieties throughout the country’: D Eades ‘Aboriginal English on trial: The case for Stuart and Condren’ in D Eades (ed) Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia University of NSW Press Sydney 1995, 148. See para 14.125 and rec 117 regarding interpreters in court.
 While this provision does not refer specifically to Indigenous offenders it gives indirect effect to another of the Anunga rules.
 The Royal Commission into Aboriginal Deaths in Custody recommended that governments take more steps to recruit and train Aboriginal people as court staff and interpreters in locations where significant numbers of Aboriginal people appear before the courts: National Report vol 3 AGPS Canberra 1991 rec 100.
 For an overview of the status of the Anunga rules in the States and Territories see R Goldflam ‘Silence in court! Problems and prospects in Aboriginal legal interpreting’ in D Eades Language in Evidence: Issues Confronting Aboriginal and Multicultural Australia University of NSW Press Sydney 1995, 28, 32–36.
 eg I Nowland Public Hearing Submission Wagga Wagga 8 May 1996; Darwin Practitioners’ Forum 16 July 1996.
 J Saunders IP Submission 21; Parliamentary Commissioner for Administrative Investigations IP Submission 41; Aboriginal Legal Service of WA IP Submission 75; Townsville Community Legal Service IP Submission 181; Australian Society of Social Workers IP Submission 207; Law Society of NSW IP Submission 209.
 See para 2.85.
 ‘Even those who appear to have English fluency may be socialised not to offend adult authority figures and may be compliant in terms of agreeing with police definitions of events’: H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995, 122. See also Race Discrimination Commissioner Juvenile Justice and Young People of NESB P Easteal ‘Migrant youth and juvenile crime’ in A Borowski & I O’Connor (eds) Juvenile Crime, Justice and Corrections Longman Sydney 1997; J Chan ‘Policing youth in ethnic communities: Is community policing the answer?’ in R White & C Alder (eds) The Police and Young People in Australia Cambridge University Press Melbourne 1994.
 H Blagg & M Wilkie Young People and Police Powers Australian Youth Foundation Sydney 1995, 123.
 This reflects obligations under international law: eg CROC art 40(2)(b)(vi); ICCPR art 14(1).
 Attorney-General’s Dept Report: Access to Interpreters in the Australian Legal System AGPS Canberra 1991, 79.
 Crimes Act 1958 (Vic) s 464D; Summary Offences Act 1953 (SA) ss 79A(1)(b)(ii), 83A; Crimes Act 1900 (ACT) s 354.
 There is provision for such interpreting assistance for federal suspects under the Crimes Act s 23N.
 For a discussion of the relationship between learning and intellectual disabilities and criminality see S Hayes ‘Learning and intellectual disabilities and juvenile offending’ in A Borowski & I O’Connor (eds) Juvenile Crime, Justice and Corrections Longman Sydney 1997.
 HREOC Report of the National Inquiry into the Human Rights of People with Mental Illness vol 2 AGPS Canberra 1993, 634. See also S Scarlett IP Submission 27.
 NSWLRC Report 80 NSWLRC Sydney 1996 rec 41. See also rec 6(a) regarding guidelines for identifying people with an intellectual disability.
 id 38.
 id rec 6(c).
 Crimes Act s 3ZJ(6). Material must be destroyed 12 months after it is taken if proceedings have not been instituted in regard to the offence, or have been discontinued: s 3ZK(1). Identification material must also be destroyed if the suspect is acquitted of the offence or is found guilty but no conviction is recorded: s 3ZK(2).
 Crimes Act s 3ZJ(10).
 Crimes Act s 3ZJ(9).
 Crimes Act s 3ZJ(8).
 Children’s Services Act 1986 (ACT) s 36 (2).
 Crimes Act 1900 (NSW) s 353AA; Juvenile Justice Act 1983 (NT) s 31(2A). See also Police Administration Act 1978 (NT) s 146. In Vic a court order is only required if either the child suspect or his or her parent/guardian does not consent to the material being taken: Crimes Act 1958 (Vic ) s 464L(2).
 SA Police General Order 3360/7.
 Criminal Process (Identification and Search) Act 1976 (Tas) s 3(1).
 Juvenile Justice Act 1992 (Qld) s 10(4).
 cl 23WA(1).
 cl 23WA(1).
 cl 23WC. Before making such an order a magistrate must be satisfied of all the matters listed in cl 23WT, eg, that there are reasonable grounds to suspect the person of the offence and that the procedure is justified in all the circumstances. Forensic procedures must be carried out in private by a dentist or doctor as appropriate although prints can be taken by a police officer: cls 23WI, 23XM(1). A child cannot consent to a forensic procedure: cl 23WE(1).
 cl 23WX(2), (6).
 cl 23XC(2).
 Federation of Community Legal Centres (Vic) DRP Submission 72 strongly supported any proposal to require a court order to take prints from a child: ‘The process of fingerprinting etc is likely to stigmatise the young person as much as any other forensic procedure.’ Some government and police submissions did not support the proposed reforms: Qld Police Service DRP Submission 56; NT Government DRP Submission 71.
 Kreative Kids DRP Submission 35.
 Crimes Act s 3ZE. A frisk search is defined as ‘a search conducted by quickly running the hands over the person’s outer garments and examining any clothes that have been voluntarily removed’: s 3C(1).
 Crimes Act s 3ZF. An ordinary search is defined as a search of a person or articles in that person’s possession and may include requiring the person to remove his or her overcoat, coat, jacket, gloves, shoes or hat: s 3C(1).
 Crimes Act s 3ZH(2).
 Crimes Act ss 3C(1), 3ZI(1)(g).
 Crimes Act s 3ZI(1)(a), (b).
 Crimes Act s 3ZI(1)(e). Note that there are also special requirements for identification parades involving suspects aged 10 to 17: s 3ZN.
 Crimes Act s 3ZI(1)(f). These limitations were introduced in 1994 to implement recommendations of the 1990 review of federal criminal law: Hansard (H of R) 17 November 1993, 3030.
 Summary Offences Act 1953 (SA) s 81. The position is similar in NSW: Crimes Act 1900 (NSW) s 353A(1).
 Police Administration Act 1978 (NT) s 144(1), (3). The position is similar in Qld: Criminal Code (Qld) s 259.
 Crimes Act 1958 (Vic) s 464(2).
 Crimes Act 1958 (Vic) s 464U(2).
 Rockhampton Focus Group 2 August 1996.
 Perth Focus Group 1 July 1996.
 H Blagg & M Wilkie Young People and Police Australian Youth Foundation Sydney 1995, 99.
 ALRC Report 82 Integrity: But Not by Trust Alone — AFP & NCA Complaints and Disciplinary Systems ALRC Sydney 1996, 397–398.
 See S Payne ‘Women and the criminal justice system’ (1990) 2(46) Aboriginal Law Bulletin 9, 11.
 This view was supported by National Children’s and Youth Law Centre DRP Submission 59; NSW Youth Justice Coalition DRP Submission 91. It was opposed by some government and police submissions. The NT Government DRP Submission 71 considered that legislation to this effect would fetter police discretion unnecessarily and make the process too cumbersome. The Qld Police Service DRP Submission 56 considered that requiring a court order for a strip search of a child suspect will risk the destruction of evidence.
 Police Act 1892 (WA) s 53A; Police Administration Act 1978 (NT) s 128(1).
 Bringing Them Home HREOC Sydney 1997, 494.
 This position is supported by NSW Ombudsman DRP Submission 80.
 Adelaide Focus Group 29 April 1996; Canberra Focus Group 6 May 1996; Hobart Focus Group 30 May 1996; Perth Focus Group 1 July 1996; Rockhampton Focus Group 2 August 1996. See also R White et al Any Which Way You Can: Youth Livelihoods, Community Resources and Crime Australian Youth Foundation Sydney 1997, 115–122; H Blagg & M Wilkie ‘Young people and policing in Australia: The relevance of the UN Convention on the Rights of the Child’ (1997) 3(2) Australian Journal of Human Rights 134, 139; A Daniel & J Cornwall A Lost Generation? Australian Youth Foundation Sydney 1993, 18.
 Brisbane Practitioners’ Forum 29 July 1996.
 Canberra Focus Group 6 May 1996; Perth Focus Group 1 July 1996; Hobart Focus Group 30 May 1996; Brisbane Focus Group 29 July 1996; Rockhampton Focus Group 2 August 1996; Tranby College Focus Group 10 June 1997; A Borg IP Submission 33. See also A Daniel & J Cornwall A Lost Generation? Australian Youth Foundation Sydney 1993, 18.
 Vic Police Youth Policy Statement: Background Youth Advisory Unit Melbourne 1997, 13.
 ALRC Report 82 Integrity: But Not by Trust Alone — AFP & NCA Complaints and Disciplinary Systems ALRC Sydney 1996 rec 6. This would also implement the Royal Commission into Aboriginal Deaths in Custody proposal that an independent body be established to investigate complaints against police: National Report vol 4 AGPS Canberra 1991 rec 226a.
 All States and Territories have mechanisms for members of the public to complain about police behaviour or treatment that are available to adults and children. The process usually involves investigation by an internal complaints unit with provision for external review by an ombudsman or similar body. In Qld complaints against police are investigated by the Criminal Justice Commission: Criminal Justice Act 1989 (Qld).
 This proposal is supported by Townsville Community Legal Service DRP Submission 46; Juvenile Justice Advisory Council of NSW DRP Submission 53; Qld Police Service DRP Submission 56; NSW Youth Justice Coalition DRP Submission 91. cf NT Government DRP Submission 71.
 eg Juvenile Justice Boards of Management were established in the NT to give independent, critical advice to the Territory Government on juvenile justice issues. Board members are entitled to make unannounced inspections of police lockups and detention centres. Young people can call members directly: Juvenile Justice Act 1983 (NT) Pt III. See also Juvenile Justice Board of Management: Southern Region Annual Report 1994/95 Dept of Correctional Services Darwin 1995.
 This proposal is supported by NSW Youth Justice Coalition DRP Submission 91.
 IP Submission 75. This proposal is consistent with HREOC Report of the National Inquiry into Racist Violence in Australia AGPS Canberra 1991 rec 20.
 The High Court has held that in deciding whether to exclude evidence on this basis the court must balance ‘the desirable goal of bringing to conviction the wrongdoer’ against the avoidance of ‘the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law’: Bunning v Cross (1978) 141 CLR 54, 74 per Stephen, Aicken JJ. This approach is reflected in the Evidence Acts 138.
 Qld Police Service DRP Submission 56; NT Government DRP Submission 71. The proposed reform was supported by: Townsville Community Legal Service DRP Submission 46; Juvenile Justice Advisory Council of NSW DRP Submission 53; National Legal Aid DRP Submission 58; NSW Youth Justice Coalition DRP Submission 91.
 D Sandor DRP Submission 30.
 ‘…any abuse of police power must at least result in the evidence so obtained being inadmissible’: H Blagg & M Wilkie ‘ Young people and policing in Australia: The relevance of the UN Convention on the Rights of the Child’ (1997) 3(2) Australian Journal of Human Rights 134, 145.
 This proposal complements the recent recommendation of the Wood Royal Commission that prosecution review committees be established in each police region to review major prosecutions that have failed in circumstances suggestive of serious police incompetence or malpractice, including cases where judicial criticism is made of the integrity and conduct of the police concerned or where the DPP delivers an adverse report on the quality of the police investigation, co-operation or conduct: Final Report Vol II: Reform NSW Government Sydney 1997 rec 150.