Justice

Which Convention Articles relate to Justice Issues?

Broad Justice issues:

Article 3: Best interests of the child
Article 12: Express an opinion
Article 13: Freedom of expression
Article 16: Protection of privacy
Article 17: Access to appropriate information

Juvenile Justice issues:

Article 40: Administration of juvenile justice
Article 19(a): Protection from abuse - whilst in the care of any person
Article 22: Special and appropriate protection for refugee children
Article 37: Prohibition of torture and deprivation of liberty
Article 37(b): No unlawful and/ or arbitrary deprivation of liberty
Article 37(d): Prompt access to legal and other assistance; Prompt impartial decision-making

Protection issues:

Article 9: Right to live with parents unless if this is incompatible with the child's best interests; right to maintain contact with parents
Article 19: Protection from abuse
Article 20: Protection of children without families
Article 21: Adoption
Article 22: Special protection for refugee children
Article 25: Periodic placement review of children in State care
Article 26: Right to benefit from social security

What are the Human Rights issues in Victoria relating to Justice?

Jurisdiction of the Children's Court

Currently the jurisdiction of the Children and Young Persons Act 1989 includes persons under the age of 17. A review to extend this to include any person under 18 is currently under way.

Independent witness to police interviews involving young people

Section 464E Crimes Act 1958 (Vic) provides that:

If a person in custody is under the age of 17 years, an investigating official must not question of carry out an investigation under section 464A unless - (a) a parent or guardian of the person in custody or, if a parent or guardian is not available, an independent person is present; and (b) before the commencement of any questioning or investigation, the investigating official has allowed the person in custody to communicate with his or her parent or guardian or the independent person in circumstances in which as far as practicable the communication will not be overheard.

However, section 464E gives young people no right to choose who is present during the interview, whether it be a parent or an'independent' person. This is in contradiction to Convention Article 12 which espouses the right of children and young people to express their opinions and promotes their right to have more control over the legal process.

In practise once a parent is found to be unavailable, police choose someone to act in this role. Officers have different opinions on the extent to which the views of young people should be taken into account in choosing who the interview witness should be. There is significant concern amongst youth workers, lawyers and police that the witness is often not'independent' but actively supporting either the police or the young person.

There is further controversy over whether the role of an'independent' person is simply to witness the interview process, or to more actively assist the young person to understand and exercise their rights.

Pre-Court diversion

The Criminal Justice Diversion Program provides an opportunity for mainly first time offenders to avoid a criminal conviction by undertaking program conditions that benefit the community, victims and the offender. This program was recently extended to include seven Magistrates' Courts in Victoria (Broadmeadows, Heidelberg, Dandenong, Sunshine, Frankston, Ringwood and Melbourne) however, it does not yet operate throughout Victoria or in the Children's Court.

Release of Criminal Records

Currently even if an offender receives a non-conviction disposition it is recorded for the life of the offender. It is only by virtue of Victoria Police policy that records more than 10 years old are usually not released.

The Age of Criminal Responsibility

There continues to be some concern around the defence of doli incapax, that is, not having the capacity for criminal conduct. In Victoria it is presumed that those under that age of 10 years are doli incapax, or unable to commit a crime or be found guilty of an offence. The UN Committee on the Rights of the Child maintains that while this age limit may be higher than in other States it is still too low. Further, there is some discrepancy around the defence of doli incapax for those aged between 10 and 14. It is presumed that for those younger than 14, the defendant is incapable of forming the criminal intent necessary to be found guilty, however, there are a number of issues that require consideration:

The prosecution must establish that the defendant knew that what he/she was doing at the time of offending was seriously wrong.
If the young person has been cautioned prior to the offence it could be detrimental to a doli incapax defence.
The older the defendant the less strength given to the presumption.
Occasionally during the interview the young person will be specifically asked,'did you at the time of doing these things, know what you were doing was seriously wrong?' In almost all other cases the questions will be put'do you know what you were doing was wrong?' Clearly it can be argued that the knowledge of the young person at the time of attending the police station and being interviewed may be dramatically different to their perception at the time of offending.

Police Powers

Forensic testing of young people.
Difficult relationship between young people and police generally.
Police misuse of powers, including search powers.
Inadequacy of police accountability processes, through Ethical Standards Department and the office of the Ombudsman.
Diversion programs - what are the safeguards, accountability of police?
Limited access to legal representation for young people at a police station, and limited access to information relevant to young people about police powers.
Lack of accountability for the bail justice process.

Civil Law matters

Lack of information for young people as well as services providing advice and ongoing casework, in relation to the following areas: contracts, mobile phones, debts, fines, mandatory immigration detention, rights in school, disputes with Centrelink.

What can non-government agencies and local government do?

Advocate for adequate funding for a specialist State-wide young people's legal and advocacy service that provides a comprehensive casework service, preventative education and policy programs, as well as a State-wide youth lawline, for young people in police custody, like Alphaline - 24 hour, 7 days.
Work towards a co-ordinated approach to teaching young people about their rights.
Develop information about rights for young people that is educative, addresses practical issues impacting upon young people, is user-friendly, multi language information, and provides information about penalties that is relevant to young people.
Advocate for changes to the PERIN system, to provide non-financial penalties for young people.
Educate about rights around school exclusion.
Advocate for improvement to or new models for the methods used to exclude young people from school.
Ensure that the young people are able to report crime as victims without fear of punishment, and for their own offences taking over.
Police /young people relationship:
- Create programs between police and young people to improve relationships.
- Encourage and develop improved police training in their dealings with community services/liaison. Many police are so set in their ways so must focus on all police training from point of police recruitment re youth / youth services / programs.
- Advocate for an independent police accountability mechanism.
- Develop programs that link young people to services at point of police contact.
- Advocate for an improved system of independent persons for young people in police interviews, where the adult is independent of police and has been through a coordinated training program.
Encourage young people to take action against arbitrary decisions made by courts/DHS that are oppressive to them. This will vary from region to region.
Advocate for DHS to develop clear guidelines and standards at decision making levels - including review of decisions made, conflicts arising between parents and young people.
Educate workers with young people about what and how DHS operates.
Establish an audit in Victoria on the state of young people and their status as to Convention; ensure the research and consultation processes include young people as researchers.