Site navigation

Change font size: SmallerLargerReload

Human Rights navigation

Policing Juveniles consistently with the UN Convention on the Rights of the Child

The National Inquiry into Children and the Legal Process

In 1997 the report of a joint inquiry into children and the legal process undertaken at the request of the then federal Attorney-General by the Human Rights and Equal Opportunity Commission (now known as the Australian Human Rights Commission) and the Australian Law Reform Commission (ALRC) was published. Titled Seen and heard: priority for children in the legal process, the report considers, among many other topics, how Australian policing practice could become more consistent with the requirements of the UN Convention on the Rights of the Child. This article briefly outlines the main findings and conclusions.

The policing context

A child's first contact with the juvenile justice system is usually a police officer. This contact often occurs when the child is arrested or summonsed as a person suspected or accused of a crime. Although children's involvement with the police is not limited to this, many children's first contact results in a caution and no further involvement in the juvenile justice system. The first contact between young people and police is crucial to the development of child's attitude to authority and the state.

Evidence to the inquiry demonstrated that some children face particular difficulties in their contact with the juvenile justice system. Indigenous juveniles aged 10 to 17 years, for example, are 21 times more likely to be in a juvenile detention centre than the rest of the population of that age.

Education about children and the legal process needs to work both ways. Educating young people about the legal system and their rights and responsibilities can assist them to participate effectively in society and should have a positive effect on their relationships with authority figures such as the police. Similarly, those working in roles dealing with children must be educated and aware of children's rights if they are to respect them.

The Convention on the Rights of the Child

The recommendations in Seen and heard were based on the Convention on the Rights of the Child, ratified by Australia in December 1990. The Convention contains internationally accepted standards for the treatment of children. It provides a common standard for federal, state and territory governments in fulfilling their obligations to all children while giving particular support to disadvantaged or marginalised children. The Convention makes it clear that children coming into conflict with the law are entitled to certain basic standards of treatment. All rights set out in the Convention apply to all children without exception. It is the obligation of every government to protect children from any form of discrimination.

In ratifying the Convention on the Rights of the Child, Australia has committed itself to create laws, policies and take positive action to give effect to and promote the Convention's provisions. The Convention is an important reference point for federal, state and territory bodies working with children, including police officers.

Relevant provisions of the Convention

Article 37 requires that children shall only be detained, arrested or imprisoned in accordance with the law, for the shortest appropriate period of time and only as a last resort. Detention which is arbitrary in the sense of being discriminatory, not overseen by clear guidelines or contrary to accepted notions of justice is to be prohibited.

Article 37(d) deals with the child's right to confer with a legal practitioner prior to police interview and to have the person present during the interview.

Article 40 specifies that the aim of juvenile justice shall be to reintegrate the child into society. It further dictates that the treatment of the child shall promote his or her sense of dignity and worth.

Article 3 provides that in all actions and decisions concerning children the best interests of the child must be a primary consideration. This includes the arrest decision, the bail decision and other juvenile justice actions.

Other articles in the Convention also have relevance to juvenile justice. The Convention covers everyone under 18.

Public space

The relationship between police and young people is particularly difficult when interacting in public spaces. The inquiry was told young people are often stopped and questioned by police without a proper reason. There is a need to develop good practices for negotiating young people's use of public spaces with special reference to the particular needs of children from Indigenous and non-English speaking backgrounds.

Preventive apprehension

In a number of jurisdictions police can remove children from public places if they are considered 'at risk of offending' even though they are not suspected of illegal activity. This seriously compromises some fundamental rights for children, notably their freedom of peaceful assembly and their freedom of association.

The inquiry opposed arbitrary restrictions on the movement and assembly of young people who have not committed an offence.

Youth curfews have recently been proposed in a number of jurisdictions. Curfews compromise fundamental rights of the child and are discriminatory on the basis of age. Youth curfews should be repealed and national standards for juvenile justice should provide that no jurisdiction should introduce laws, such as curfews, to restrict the movement of young people not suspected of any crime.

Summons and arrest

Police in many jurisdictions continue to rely heavily on arrest when dealing with young suspects. Despite the Royal Commission into Aboriginal Deaths in Custody recommendation that arrest be used only as a last resort for Indigenous young people, the arrest rate for Indigenous children continues to be higher than for non-Indigenous children.

Arrest can be a traumatic and disturbing experience for a child and may be unnecessarily stigmatising. In some cases arrest may perpetuate a cycle of crime. The Convention requires that arrest be used as a last resort. Preferable options include a caution, summons or court attendance notice when an officer decides to act on an alleged offence.

Arrest should not be used purely as an investigative tool and children are not to be arrested for their own 'welfare and safety'. It should be used as the last resort option. It is more appropriate for 'at risk' children to be dealt with by health and welfare services. To ensure that officers understand their obligation to arrest only as a last resort, the inquiry recommended that each police service provide officers with practical training on the circumstances that justify arresting juvenile suspects. Further, officers should be provided with the suitable cross-cultural training in an effort to reduce arrest rates of young Indigenous suspects.

Ultimately, of course, the arresting officer must be accountable for his or her actions and always consider whether arrest is really necessary in the individual case. The decision on arresting a juvenile suspect should, if found inappropriate by a senior officer, be taken into account in the arresting police officer's performance assessment.

Notification of arrest

International 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 some but not all states. The inquiry recommended that all jurisdictions that have not already done so should pass legislation providing that a juvenile suspect's carers must be notified of his or her apprehension as soon as possible.

Notifying the young person's carers can, of course, in some cases, compromise the young person's safety. Therefore, before notifying carers, police should consult the young person to determine whether he or she has any objections to this course of action.

Investigative procedures and admissibility of evidence

Before conducting an interview it is the officer's duty to caution the suspect against self-incrimination. The right to silence is guaranteed under federal, state and territory legislation and also in international law. The inquiry was told this information is often not made sufficiently clear to young suspects. The problem seems to be that the technical language used in the caution is difficult for young people to understand. The language of the caution must be appropriate to the age and understanding of the child. Where possible the information should be available though a specially prepared video.

The inquiry also recommended that, for children, only electronically recorded admissions and confessions should be admissible in evidence.

Interview friend

The presence of an 'interview friend' is an important means to compensate for the serious disadvantage experienced by young people being interviewed by police. The role of the interview friend is to support to the young person and to ensure that any statements made are voluntary.

An interview friend might be a parent, guardian or a lawyer. If none of these people are available, or if the young person is uncomfortable in the presence of a parent, the role could be filled by a friend. If someone known to the suspect cannot be located, then the interview friend must be a volunteer independent third person selected from the community. It is very important that the role of the interview friend be performed by an independent person and not by a police officer.

The inquiry recommended that, in order to implement national standards for interview friends, their functions, responsibilities and powers should be defined by a statute. An interview friend should have an opportunity to confer privately with the child prior to the interview. Statements made in the absence of an interview friend should not be admissible in evidence against the child.

The young suspect, should have the right to choose his or her own interview friend. Where the chosen interview friend has not received training in the role, he or she should have the opportunity to watch a short video outlining the responsibilities. A register of community volunteers willing to act as interview friends for children should be maintained in all major cities.

Police interrogation

There is no common law right to lave a lawyer present during a police interview although it is particularly important for a young person to have legal representation early in the process to ensure that he or she does not plea guilty simply because of the environmental pressure.

International human rights law adopted by Australia stipulates that young suspects are to be informed of their right to confer with a legal practitioner prior to police interview and to have the lawyer present during the interview.

The inquiry recommended that a child suspected of an offence should have the statutory right to access legal advice prior to police interview and that police must inform the child of this right at the time of apprehension.

Time limits on police interviews

For young suspects the police investigation period is an exhausting and uncertain time. To ensure the least possible harm to the young person this period should not extended beyond the absolute minimum required.

Children under suspicion of a federal offence cannot be detained longer than 2 hours before being bailed or brought before a magistrate. This time period can be extended, however. Time taken travelling from the place of arrest to the police station, or time during which the young person is too intoxicated to be interviewed, does not count towards the two hours investigation period.

In most states and territories the specified investigation period is 24 hours. The inquiry recommended that state and territory law should mirror the federal provisions.

Questioning Indigenous children and children from a non-English speaking background

Young Indigenous children and children from non-English speaking backgrounds have different ways of communicating which can have a significant effect on the results of a police interview. The most profound variation from Anglo-Celtic mores is found in traditional Indigenous cultures.

The inquiry recommended that national standards for juvenile justice should require that Indigenous young people be assisted to understand their rights during police questioning. All young suspects should have the right to an interpreter if they are not reasonably fluent in English.

Questioning children with disabilities

When questioning young people with intellectual disabilities it may be necessary to modify interrogation techniques considerably. The inquiry recommended that all police officers who are required to interrogate young suspects should receive special training in identifying and communicating effectively with those who have disabilities.

Taking identification material from children

Provisions for taking identification material from children vary considerably among the states and territories.

The federal government has introduced legislation to reform the procedures for taking forensic samples from young people suspected of a federal offence. The bill provides that only a magistrate can authorise taking forensic samples from juvenile suspects aged 10 to 17.

The inquiry recommended that these provisions should be incorporated into the national standards for juvenile justice.

Searching a child

For a child, already intimidated by the physical environment, a strip search is an invasive procedure that is potentially traumatic. A strip search should only be conducted when absolutely necessary for evidence purposes.

The inquiry recommended that national standards should provide that a child may be strip searched only pursuant to a court order. The child should be legally represented and have the right to oppose the application for the order.

Detaining intoxicated child suspects

In some states and territories police have the power to detain intoxicated juveniles, even if they are not charged with any crime.

Children should not be detained on the basis of intoxication alone. Children with alcohol and drug problems should not be dealt with as a police matter, but rather be as 'at risk' and monitored medically to ensure that they do not harm themselves.

The inquiry recommended that national standards for juvenile justice should require police to avoid detaining intoxicated children. Instead police should liaise with the relevant health authorities to find suitable medical alternatives.

Specialist training

A young person's contact with the juvenile justice system can be stressful and traumatic. The experience could put the young person at risk of inhumane treatment or treatment inconsistent with the overall aims of reintegration into society and increasing respect for the human rights of others.

Therefore there is a need for systematic training for professional groups working with children. Police specially trained in youth issues will encourage a better informed approach to policing young people and improved cooperation between the police service and young people.

Police training in youth issues should deal with the context of children's lives with emphasis on the variety of social, cultural and economic factors that contribute to juvenile offending. Training would ideally include information on

The inquiry recommended that national standards for juvenile justice should provide that at least one officer on duty, at least at every major police station, is to be a specially trained youth officer. That officer would deal with all issues affecting young people.

Police accountability

Limitations on police conduct when dealing with young people generally and young suspects in particular are only effective if police officers are accountable for their actions. However, many young people in focus groups conducted by the inquiry stated that they had little trust or expectation that a potential complaint about a police officer's actions would result in appropriate outcomes.

The inquiry recommended that national standards for juvenile justice should require specific guidelines for the handling of children=s complaints against police. These guidelines should, in particular, include standards regarding timeframes for hearing complaints and the desirability of dealing personally with the child filing the complaint.

Further information

This article is intended only as a brief guide to the policing aspects of Seen and heard: priority for children in the legal process. For more detailed information, refer to the full report.

Last updated 2 December 2001.