5. Criminal law

Introduction

The juvenile justice system deals with children and young people who have committed a crime or are suspected of having committed a crime.

The juvenile justice system deals with some groups of children and young people more than others. The Commissions are interested in the needs of these groups and the reasons for their over-representation. For example, there are far more boys in the juvenile justice system than girls. Children and young people from some cultural and ethnic backgrounds tend to be over-represented.

The age of criminal responsibility

When children and young people below a certain age commit a crime, the law treats them as if they were not aware that what they did was wrong. In most parts of Australia this age is below 10 years, in Tasmania 7 years and in the ACT 8 years. Generally, when the young person is over 18, he or she is treated as an adult in the justice system.

Police and young offenders

There are different laws in different parts of Australia for dealing with children and young people suspected of crime. We will be looking mainly at commonwealth laws that relate to children and young people and the criminal law.

Arrests

Where police decide to take action against a child or young person, they are encouraged not to arrest him or her but to send a summons or notice of court attendance. However, the number of arrests of children and young people is still high.

Police interviews

Police are limited in how they may question children and young people under arrest. For example, children have the right to speak to a friend, relative or lawyer and sometimes the right to have a parent or adult friend present at the interview. There are also limits on the length of time a person may be kept in custody by police.

Children, young people and vulnerability

Police may take advantage of young people, knowingly or unknowingly, in their investigations. This may happen because of young people’s inexperience or because young people feel pressured dealing with adults in authority.

Questioning indigenous young people

Special rules apply when police question Aborigines and Torres Strait Islanders. For example, an interpreter should be used where necessary, and a legal representative or a ‘prisoner’s friend’ must be present. These rules lessen the chance that indigenous young people will be treated unfairly by police.

Fingerprinting young people and other investigative procedures

Laws about this vary. For example, in Victoria a court order must be made before a child or young person may be fingerprinted. In Queensland and Western Australia a court order is not needed. Commonwealth laws limit the powers of police to strip search children or young people and use them in identification parades.

Diversionary programs

Diversionary schemes try to deal with the young person outside the court system. These schemes are usually used for children and young people who have committed a crime. For example, a young person who has committed a crime may have to appear before a community panel made up of police, youth workers or other members of the community rather than appearing before a formal court.

Children and young people before courts

Children and young people appearing before courts should understand what is happening to them. Some ways to do this include

• having special children’s magistrates and judges who are trained in young people’s needs and issues
• using language that is easy to understand and explaining what is happening
• a court design that is less threatening for young people
• reducing delays in hearings, especially where young people are being kept in custody until the hearing.

Representation of young people

Every young person charged with a criminal offence has the right to legal assistance or any other assistance to prepare and present a defence. Most young people appearing in court are entitled to legal advice and/or legal representation.

Free legal services are available from Legal Aid Commissions, Aboriginal and Torres Strait Islander legal services or community legal centres. However, these services are often restricted in the help they can give because of limited resources. As a result the young person may not get enough time with the solicitor to tell the full story or to get advice on what to do. Many young people do not have a lawyer during police interviews. Nine out of ten young people plead guilty to offences soon after being charged by the police. Legal assistance may be more important at the interviewing stage than later.

Children’s evidence in criminal matters

When a young person is accused of a crime he or she will often need to give evidence to the court. Each court has its own rules on who can give evidence and what evidence is allowed and what procedures are used. The rules of evidence are gradually changing to allow more types of relevant evidence to be given to the court. Evidence obtained by police through improper methods may not be allowed.

If you are worried about your rights in the criminal law you should contact a community legal centre or another lawyer in your city or district.