18. Children’s involvement in criminal justice processes

192National standards for juvenile justice should be developed to reflect Australia’s international commitments and ensure a proper balance between rehabilitation, deterrence and due process.

Implementation. The standards should be developed by OFC in consultation with the relevant State and Territory authorities, the legal profession, community groups, peak bodies such as juvenile justice advisory councils and young people.

193Compliance by the Commonwealth, States and Territories with the national standards for juvenile justice should be monitored. As part of this process, the Commonwealth and each State and Territory should be required to provide a detailed profile of juvenile justice laws, programs and policies annually, including information on performance measures and outcomes. The community sector should be given regular opportunities to contribute to the monitoring process.

Implementation. These monitoring and consultation roles should be performed by OFC which should report annually to Parliament on the results.

194The minimum age of criminal responsibility in all Australian jurisdictions should be 10 years.

Implementation. The Tasmanian Government and the ACT Government should enact legislation to this effect.

195The principle of doli incapax should be established by legislation in all jurisdictions to apply to children under 14.

Implementation. All States and Territories that have not already done so should legislate to this effect.

196The age at which a child reaches adulthood for the purposes of the criminal law should be 18 years in all Australian jurisdictions.

Implementation. All States and Territories that have not already done so should legislate to this effect.

197The age of consent should be the same for heterosexual and homosexual sex.

Implementation. All States and Territories that have not already done so should legislate to this effect.

198The national standards for juvenile justice should stress the importance of rehabilitating young offenders while acknowledging the importance of restitution to the victim and the community.

199The national standards for juvenile justice should provide best practice guidelines for cautioning that will ensure equal treatment of young people wherever they live and whatever their background. OFC should monitor compliance with these guidelines.

200The national standards for juvenile justice should provide best practice guidelines for family group conferencing. OFC should monitor compliance with these guidelines.

201The best practice guidelines for family group conferencing should ensure that young federal suspects have access to the schemes. The national juvenile justice standards should ensure that conferencing is available to federal suspects prior to charge wherever possible. When this is not possible, conferences should be administered by a judicial officer.

202The national standards for juvenile justice should require governments to ensure Indigenous communities are able to develop their own family group conferencing models. Existing conferencing schemes should be modified to be culturally appropriate.

203Security 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.

204Laws that permit preventive apprehension of young people should be repealed.

Implementation. States and Territories that have such laws should arrange for their immediate repeal.

205The 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.

206The 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.

207The 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.

208The 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.

209Police 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.

210The 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.

211The 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.

212The 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 interview 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.

213A 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.

214The 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.

215The 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.

216Those 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.

217All 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.

218Clause 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.

219The 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).

220The 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.

221Children 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.

222The 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.

223The 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.

224The 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.

225Police 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.

226The national standards for juvenile justice should provide that a child suspected of committing an offence should have a statutory right to access legal advice prior to police interview and that police must inform young people of this right at the time of apprehension. Duty solicitor schemes should be appropriately resourced to enable practitioners to meet with their child clients before the first court appearance.

227Confidential legal advice, with the capacity for trained interpreter assistance, should be available to young people 24 hours a day through a freecall youth telephone advice service. This service should be staffed by practitioners with specific training and experience in dealing with children’s matters.

Implementation. The Attorney-General should seek the agreement through SCAG of all States and Territories to the immediate establishment of such a service in each jurisdiction.

228The national standards for juvenile justice should provide as follows.

    • There should be a presumption in favour of bail for all young suspects. The absence of a traditional family network should not negate this presumption.

    • Children should be legally represented at bail application proceedings.

    • Monetary and other unrealistic bail criteria should not be imposed on young people.

    • Children should not be subject to inappropriate bail conditions, such as 24 hour curfews, that disrupt their education and have the effect of forcing constant contact with their families or that impose policing roles on carers.

    • Where a child is released on bail, police should have a statutory duty of care to ensure that the child is able to return to his or her carers promptly or is provided with alternative accommodation.

    • Lack of accommodation is not sufficient reason to refuse bail to a young person.

    • Bail hostels should be established in all regions for young people on bail who do not have alternative accommodation.

    • All police who may deal with young suspects should be given specific training in the importance of ensuring that Indigenous young people are not unnecessarily separated from their families and communities.

229The national standards for juvenile justice should provide as follows.

    • Where it is necessary to keep young suspects in police custody, they should be detained separately from adults and with members of their own sex.

    • Young suspects should be transferred to the nearest juvenile detention centre at the first opportunity. In any event, they should not be remanded in police custody for longer than 24 hours.

    • In geographically remote communities where it is not feasible to transfer juvenile suspects to a juvenile detention centre, the police station or other appropriate premises should be proclaimed or gazetted as a detention centre for the purposes of remanding young offenders provided the facilities have the approval of the relevant complaints handling body and comply with the national standards for juvenile detention facilities.

230The national standards for juvenile justice should require all juvenile justice matters to be prosecuted by the DPP.

231All DPP staff who prosecute juvenile justice matters should be given specialised training in children’s issues particularly concerning the exercise of the discretion to withdraw charges in minor matters.

232The national standards for juvenile justice should require each jurisdiction to evaluate the need for court support schemes.

233The judicial training proposed at recommendation 236 should include material on ensuring Indigenous witnesses understand juvenile proceedings and can participate in them effectively.

234Guidelines for juvenile court design, to be used when new courts are established and existing facilities are modified, should be developed.

Implementation. OFC should develop these guidelines in conjunction with relevant State and Territory authorities.

235Juvenile justice data provided to OFC by the States and Territories in accordance with recommendation 193 should provide a breakdown as to whether a decision was made by a specialist children’s magistrate or by a generalist magistrate and be matched with the type of order made in each case.

236In addition to training already provided, all magistrates and judges who hear juvenile justice matters should receive specialised training. The training should include components on matters such as communications skills, child development, Indigenous culture, juvenile justice procedure and the structural causes of offending.

Implementation. In conjunction with other judicial education bodies, AIJA should develop a core national syllabus for training judicial officers who hear juvenile justice matters.

237Courts of appellate jurisdiction should designate judges to hear appeals in juvenile justice matters. These judges should undertake the training proposed at recommendation 236.