Paper No.:

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Date: lal 8', i0

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Clerk at the TaNe:

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Remainder incorporated,-lcat e

PARLIAMENTARY RESEARCH REPORT

LWB413 QUEENSLAND PARLIAMENTARY INTERNSHIP PROGRAMSemester One, 2010

Title:

Looks Like a Child, Acts Like a Child, Treated Like an Adult.

Human Rights Implications of the Pre-Adjudication Treatment of Seventeen Year Olds in Queensland

Jamie Nuich

ASSESSMENT DETAILS

1. Student

Jamie Nuiche: i.nuich@'tudent. gut.edu.aunz: (07) 3342 0679

Student Number : 05930014

2.Assessment

Unit: LWB413 Queensland Parliamentary Internship Program

Assessment Value: 60%

Word Limit/Count: 4,000

Format : Parliamentary Report

Topic : `Looks Like a Child, Acts Like a Child, Treated Like an Adult:Human Rights Implications of The Pre-Adjudication Treatment of Seventeen Year Olds in Queensland'

Hypothesis : The pre-adjudication treatment of 17 year olds under Queensland Criminal Laws compared withthat of their younger counterparts under the Youth Justice Act 1992 (Qld), contravenes international human

rights standards.

3.Submission

Submission Date: 9 August 2010

Method of Submission : Via email to `Supervisors'

SUPERVISORS

Academic Supervisor : Terry Hutchinson, t.hutchinson(a)gut.edu.au

Parliamentary Supervisor : Evan Moorhead, waterford a,parliament.gld. og vau

Unit Co-ordinator : John Pyke, j.pyke@qut.edu.au

Parliamentary Internship Co-ordinator : Graham Kinnear, graeme.kinnear(aiparliament.gld.gov.au

9 August 2010

Evan Moorhead MPMember for WaterfordParliament HouseQueensland

Mr Moorhead

It is with great pleasure that I present the final report of `Human Rights Implications of The Pre-

Adjudication Treatment of Seventeen Year Olds in Queensland '. The Report details ways in which

criminally accused seventeen year olds are treated up to the point at which their criminal liability is

adjudicated , with particular emphasis on the legitimacy and justifications for such treatment.

I hope this report assists you to consider what role the Queensland Parliament may play on this issue.

Please contact me if you have any questions,

Jamie NuichParliamentary Intern

Contents

1.0 INTRODUCTION ......................................................................................................................................................... 5

1.1 Historical Context ........................................................................................................................................................ 5

1.1.1 Seventeen Year Old as Adults .. ............................................................................................................................. 6

2.0 HUMAN RIGHTS FRAMEWORK ............................................................................................................................. 8

2.1 Standards ..................................................................................................................................................................... 8

3.0 PRE-ADJUDICATION TREATMENT OF SEVENTEEN YEAR OLDS ............................................................... 9

3.1 Arrest ........................................................................................................................................................................... 9

3.1.1 Powers of Arrest ................................................................................................................................................... 9

3.1.2 Particular Charges ............................................................................................................................................... 10

3.2 Police Contact ............................................................................................................................................................11

3.2.1 Interview ............................................................................................................................................................. 11

3.2.2 Search and Seizure .............................................................................................................................................. 12

3.2.3 Line up ................................................................................................................................................................12

3.3 Prosecution ................................................................................................................................................................ 13

3.3.1 Public Interest Prosecution .................................................................................................................................. 13

3.3.2 Prosecutorial Conduct ......................................................................................................................................... 13

3.4 Remand and Release .................................................................................................................................................. 14

3.4.1 Time Awaiting Trial ...........................................................................................................................................14

3.4.2 Segregation ......................................................................................................................................................... 14

3.4.1 Release ................................................................................................................................................................ 15

3.5 Court Appearance ...................................................................................................................................................... 16

3.5.1 Diversion .............................................................................................................................................................16

3.5.2 Children ' s Court Compared with Ordinary Courts ............................................................................................. 16

3.5.3 Evidentiary Matters .............................................................................................................................................17

3.5.4 Trial Procedures ..................................................................................................................................................17

4.0 REFORM DEBATE ....................................................................................................................................................20

4.1 Arguments for treating seventeen year olds as adults in pre-adjudication arrangements ........................................... 20

4.1.1 Cost-efficiency ....................................................................................................................................................20

4.1.2 Paternalism .......................................................................................................................................................... 20

4.1.3 Reactionary Public Opinions ............................................................................................................................... 21

4.2 Arguments against treating seventeen year olds as adult in pre -adjudication arrangements .. .................................... 22

4.2.1 Law Enforcement Relief ..................................................................................................................................... 22

4.2.2 Youth Justice Jurisprudence ................................................................................................................................ 22

4.2.1 Statistics of Youth Offending ..............................................................................................................................22

4.2.1 Excessive Media Distortions ............................................................................................................................... 23

4.2.2 Age Standard Anomalies .................................................................................................................................... 23

5.0 RECOMMENDATIONS ............................................................................................................................................. 25

6.0 CONCLUSION ............................................................................................................................................................ 26

1.0 INTRODUCTION

The Youth Justice Act 1992 (Qid) (`YJA') defines seventeen year olds as adults' even though

Article 1 of the Convention on the Rights of the Child2 ('CROC') defines a child as under the

age of 18 (' child/children '). Consequently, the pre-adjudication treatment of 17 year olds in

Queensland is no different to that of adults. This contravenes international human rights

standards, particularly under CROC,3 Pre-adjudication treatment includes: (1) Arrest; (2)

Police Contact; (3) Prosecution; (4) Remand and Release; and (5) Court Appearance.

This report will analyse the pre-adjudication treatment of 17 year olds under Queensland

Criminal Laws compared with that of their younger counterparts (' youth/youths' ) under the

YJA 1992 (Qld), in the context of international human rights as are applicable to both.

1.1 Historical Context

Children's Services Act 1965 (Qtd)Objective-to promote and

safeguarding wellbeing of childrenwith child and family welfare- Ghikfdefined as person under theage of 17 years

Kennedy Review 19880

Reviewed Old CorrectiveServices- Gave first remarkable criticismof juvenile justices ystem in Qid

Convention ofthe Rights of the Child of 1990

- Followed long history of establishing rights forchildren- First Convention exclusively dedicated to the rightsof children-An l defines children as under the age of 18 years-Australia signed and ratified and detailedconsultation followed

Juvenile Justice Act 1992 (Old)

2009Arnendments

Child defined as person under the age of 17Provides special measures for dealing with

child offenders in court (eg., appearances, trialand sentencing) and in society(eg., police andother community groups)

-- ^.. ----_......__..... __......... ............. ----................... _..----._.....................__._...._............_._...._._.._..- .-..........__J J Kennedy, Commission of Review into Corrective Services in Queensland, Final Report (1988)

The United Nations Convention on the Rights of the Child (1989) 1577 LINTS 3.

Figure 1.0 - Significant legal moments in juvenile justice which havecontributed to the artificial definition of adulthood in Queensland

1 The Youth Justice Act 1992 (Qid) Sch 4.2 The United Nations Convention on the Rights of the Child (1989) 1577 LINTS 3.3 The United Nations Convention on the Rights of the Child (1989) 1577 LINTS 3.

1.1.1 Seventeen Year Old as Adults

The Children's Services Act 1965 (Qld) first defined 17 year olds as adult in Queensland for

welfare purposes (see Figure 1.0). Subsequently, the hallmark 1988 Kennedy Report 4 gave

harsh criticisms of this, albeit in the context of Queensland's correctional services.

Queensland ' s legislature responded with the Juvenile Justice Bill 1992 (Qld). Following its

enactment , the statutory pre-adjudication treatment of youths became distinct from that of 17

year olds. The genesis of this provision remains controversial because the legislature did not

originally intend for 17 year olds to fall into the adult system . The fact it was inconsistent

with the age of majority of 18 was an obvious fault . 5 Minister the Hon Ann Warner conceded

this required amendment after the passage of the bill to "... [avoid] such children being

exposed to the effects of adults in prisons ... [as it increases] their chances of remaining in

the system and becoming recidivists . " 6 Yet this intention cannot be reconciled with a clear

legislative intention in the bill7 or explanatory memorandum.8

Furthermore, the 2009 Amendments to the YJA 1992 (Qld) failed to mention the status of 17

year olds9 or confer a material change to their treatment.10 The same occurred previously

without explanation in the 1996,11 199812 and 200213 amending bills and explanatory

memoranda.14 The same applies to developments in other Queensland criminal laws.15 These

conspicuous omissions are sharply contrasted with the progression of international rights of

children,16 and subsequently it has become the subject of international scrutiny.

4 Queensland, Commission of Review into Corrective Services in Queensland, Final Report (1988).5 Acts Interpretation Act 1954 (Qld) s 36.6 Queensland, Legislative Assembly, Second Reading Speech, Juvenile Justice Bill 1992 (Qld), 5 August 1992, 6130 (AnnWarner).7 Queensland Legislative Assembly, Second Reading Speech, Juvenile Justice Amendment Bill 2002 (Qld), 19 June 2002 (JC Spence); Queensland Legislative Assembly, Second Reading Speech, Juvenile Justice and Other Acts Amendment Bill2009 (Qld), 19 May 2009, (Karen Struthers).8 Explanatory Memorandum, Juvenile Justice Bill 1992 (Qld).9 Explanatory Memorandum, Juvenile Justice and Other Acts Amendment Bill 2009 (Qld).10 For example, giving courts the powers to impose curfews on young offenders to ensure they are properly supervised andare not given opportunities to reoffend; widening court powers to name dangerous young offenders convicted of seriousoffences; giving police stronger powers to arrest young offenders who do not comply with conferencing requirements.11 Explanatory Memorandum, Juvenile Justice Legislation Amendment Bill 1996 (Qld), 11 July 1996 (D E Beanland).12 Explanatory Memorandum, Juvenile Justice Legislation Amendment Bill 1998 (Qld), 6 August 1998 (Anna Bligh).13 Queensland Legislative Assembly, Juvenile Justice Amendment Bill 2002 (Qld), 19 June 2002 (J C Spence).14 Queensland Legislative Assembly, Juvenile Justice and Other Acts Amendment Bill 2009 (Qld), 19 May 2009, (KarenStruthers).15 See: Civil and Criminal Jurisdiction. Reform and Modernisation Amendment Act 2010 (Qld).16 Sharon Detrick, The United Nations Convention on the Rights of the Child: A Guide to the "Travaux Preparatoires" (2nd

1992) 27; Philip Alston, `Children's Rights in International Law' (1986) 10 Cultural Survival Quarterly 59, 61.

1.1.1.1 Criticisms

Queensland's treatment of criminally accused 17 year olds is the subject of criticism:

• In Queensland by the former Anti-Discrimination Commissioner, 17 the President of

the Children's Court 18 and youth advocacy groups;'9

• Nationally by the former Human Rights Commissioner; 20 and,

• Internationally : The United Nations Committee on the Rights of the Child gave the

seminal condemnation of the classification of 17 year old offenders as adults in

Queensland ,21 and will tentatively review it again after 2012.22

17 Queensland. Anti-Discrimination Commission, Women in prison : a report / by the Anti-Discrimination Commission

Queensland (2006).18 2002/03 Annual Report of the President of the Children's Court.19 For example, Sisters Inside, Youth Advocacy Centre and Youth Affairs Network Queensland; see: 2002 Youth JusticeConference in Brisbane ; compare Youth, Crime and Justice in Queensland, Criminal Justice Commission, Brisbane.

20 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority

for Children in the Legal Process, Report 84 Canberra, 1997.21 UN Committee on the Rights of the Child Fortieth session Consideration of Reports Submitted by States under Article 44of the Convention Concluding observations: Australia (20/10/2005). CRC/C/15/Add.268, 16, [74]: "[Queensland should] ...bring the system of juvenile justice fully into line with the Convention, in particular Articles 3 7, 40 and 39".22 Note, the Committee has not discussed this topic since 2005. However, a tentative meeting is scheduled for some timeafter 2012, in which case, the Committee may review it again.

2.0 HUMAN RIGHTS FRAMEWORK

Since the League of Nations first gave inception to the CROC, 23 international discussions

have described the need for greater domestic safeguards for the Rights of the Child. 2' The

Australian Law Reform Commission25 echoed similar sentiments when it recommended 18

years as a uniform age of majority in Australia.26

2.1 Standards

ReleN ant Articles Itnlcs :ffcct on Uoniestic I aN%

^_011 V CU1U115

The Convention on the Rights ofthe Child27

Articles 1, 3, 30 and 37- 40 Ratified26

International Covenant on Civiland Political Right29

Articles 10 and 14 Ratified31

Resolution Annexures (`Guidelines')

The Being Rules' Rules 5, 6, 8 and 10 N/A

The Riyadh Guidelines32 Rule 5 and Parts IVA - IVDGuidelines for Action on Childrenin the Criminal Justice S stem33United Nations Rules for theProtection of Juveniles Deprivedof Their Liberty34

23 The United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3.24 A World Fit for Children, GA res S-27/2 (2002); United Nations Children's Fund, The United Nations Special Session onChildren: A First Anniversary Report on Follow-up (UNICEF, 2003); Committee on the Rights of the Child,Recommendation Adopted by the Committee on the Rights of the Child: The Administration of Juvenile Justice, UN DocCRC/C/90 (1999) Ch I; Committee on the Rights of the Child , Day of General Discussion : To Speak, Participate and Decide- The Child's Right to Be Heard, UN Doc CRC/C/43/3, Annex 11 (2006); Committee on the Rights of the Child, GeneralComment 10 : Children's Rights in Juvenile Justice , UN Doe CRC /C/GC/l0 (44th Session , 2007 ); Committee on the Rightsof the Child, General Discussion on the Administration of Juvenile Justice, UN Doc CRC/C/43, Annex VIII (1995); World

Summit for Children , World Declaration on the Survival , Protection and Development of Children and Plan of Action forImplementing the World Declaration on the Survival , Protection and Development of Children in the 1990s, UN DocCF/WSC/1990/WS-001 (1990); Philip Alston, `Children's Rights in International Law' (1986) 10 Cultural Survival

Quarterly 59.25 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority

for Children in the Legal Process, Report 84 Canberra (1997).26 Ibid Recommendation 196.27 The United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3.28 Entry into force generally: 2 September 1990; Entry into force for Australia: 16 January 1991.29 United Nations, International Covenant on Civil and Political Right, Treaty Series, vol. 999, 171 and vol. 1057, 407.30 Entry into force generally (except Article 41): 23 March 1976; Entry into force for Australia (except Article 41): 13November 1980; Article 41 came into force generally on 28 March 1979 and for Australia on 28 January 1993.31 United Nations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), UN Doc A/40/33

(1985).32 United Nations Guidelines for the Prevention ofJuvenile Delinquency (The Riyadh Guidelines), GA res 45/112 (1990);United Nations Guidelines for the Prevention ofJuvenile Delinquency (The Riyadh Guidelines), GA res 45/113 (1990).33 Guidelines for Action on Children in the Criminal Justice System, ECOSOC res 1997/30 (1997).34 United Nations Rules for the Protection of Juveniles Deprived of Their Liberty, GA res 45/113 (1990).

3.0 PRE-ADJUDICATION TREATMENT OF SEVENTEEN YEAR OLDS

3.1 Arrest

3.1.1 Powers of Arrest

Children have the right to be treated in a manner consistent with the promotion of their sense

of dignity and worth.35 The YJA 1992 (Qld) preserves that right, in coordination with

Queensland Police Service 's cautioning program through the use of alternatives to arrest

when dealing with youth offenders . Inaction ,36 cautioning ,37 and even the exercise of move

on powers ,38 are preferred39 over the arrest of youths unless the arrest is necessary40 or the

youth is an adult . 41 Otherwise , while there is no real restriction between the powers of arrest

of children (since police may initiate proceedings in other ways ), there are no preferred

restraints on police powers to arrest 17 year olds ,42 not even for offences committed outside

Queensland . 43 Seventeen year olds do not enjoy treatment appropriate to their age or

reintegration abilities , despite the pervasive rationale behind such measures.

3.1.1.1 Cautioning

Cautioning a young person for an offence indicates their behaviour is unacceptable. 44 Arrest

ought to be a last resort.45 Without a caution, 17 year olds experience the stigma associated

with further prosecution and conviction and can become `contaminated' through contact with

recidivist adult offenders.46 The difference has a degree of arbitrariness because an arresting

officer would need to know the age of the offender before offering a caution. In effect this

renders the further prosecution of a young offender incidental to their age.

35 The United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3, Art 40(1).36 Youth Justice Act 1992 (Qld) s 11(a).37 Youth Justice Act 1992 (Qld) s 11(c); R v NG [2006] QCA 218 (unreported, de Jersey CJ, Keane JA and Mackenzie J, 16June 2006): R v Malayta [2000] QCA 433 (Unreported, de Jersey CJ and Helman J, 24 October 2000).38 Police Powers and Responsibilities Act 2000 (Qld) s 49; considered in the context of homeless youths in: The HumanRights and Equal Opportunity Commission, Our Homeless Children, Discussion Paper 21, Canberra (1989).39 Judge Demack, Queensland Police Department, Report and Recommendations of the Commission of Inquiry into theNature and Extent of the Problems Confronting Youth in Queensland (1975).40 Youth Justice Act 1992 (Qld) s 13(1)(a) pursuant to Police Powers and Responsibilities Act 2000 (Qld) s 365(2)-(3) or BailAct 1980 (Qld).41 Youth Justice Act 1992 (Qld) s 13(2)(b).42 Police Powers and Responsibilities Act 2000 (Qld) Ch 14.43 Police Powers and Responsibilities Act 2000 (Qld) s 374.44 Youth Justice Act 1992 (Qld) s 14.45 The United Nations Convention on the Rights of the Child (1989) 1577 LINTS 3, Art 37(b).46 Harry Blagg and Meredith Wilkie, `Young People and Policing in Australia: The Relevance of the UN Convention on theRights of the Child' (1997) 3(2) Australian Journal ofHamian Rights 134.

In South Australia, 17 year olds can receive cautions, but the cautions themselves are

distinguished based on the nature of the offence. Informal cautions for 'minor offences'47 are

distinguished from formal cautions in writing, which include paying compensation,

performing community work and apologising to victim/s. Also, whereas cautions in Western

Australia are disallowed for certain prescribed offences, 48 Queensland's `all or nothing'

approach corresponds to an accused's age.

3.1.1.1.1 Validity of Caution

As a further safeguard, if the prescribed requirements of a caution49 are not followed, the

Children's Court may dismiss the charges.50 Seventeen year olds might reach the same

conclusion in court applying exclusionary rules of evidence, however this is more difficult to

achieve since it requires a remarkable misgiving on the part of the arresting officer.51

3.1.2 Particular Charges

3.1.2.1 Federal Offences

For the purposes of federal offences, a child is "...a person who is under 18 ".52 So the pre

adjudication treatment of 17 year olds charged with a federal offence is equivalent to the

treatment of their younger counterparts in a similar situation. Interestingly, if a 17 year old is

convicted of a federal offence and sentenced to detention, they are required to serve their

detention order in their State detention centre.53 Therefore, whether a charge is for a federal

or Queensland offence can determine if a seventeen year old is treated as an adult or child.

3.1.2.2 Drug Offences

States are required to take all appropriate measures to protect children from drug abuse.54

Although the object of the Drugs Misuse Act 1986 (Qld) includes the prevention of misuse of

drugs, the Act contains no deliberate reflection of the special need to protect children.

47 Young Offenders Act 1993(SA) s 4.48 Young Offenders Act 1994 (WA) s 22.49 Youth Justice Act 1992 (Qld) s 20, which requires child ' s consent, a witness , a notice of the details of the substance of theoffence and the police officer must give their name and rank and the nature and effect of a caution.50 Youth Justice Act 1992 (Qld) s 21.51 See: Commissioner of Police v Clements & Ors [2006] 1 Qd R 210.52 Crimes Act 1914 (Cth) s 15YA.53 Crimes Act 1914 (Cth) s 20C.54 The United Nations Convention on the Rights of the Child ( 1989) 1577 LINTS 3, Art 33.

3.1.2.3 Public Nuisance

Schoolies is a typical environment where both groups might behave in `disorderly' or

`offensive' ways that `interferes with the use or enjoyment of public places'. 55 However, the

provision in itself is unclear and providing no guidance as to what conduct might not amount

to a breach, although it carries prima facie strict liability.56

3.2 Police Contact

The protection and recognition of the rights of children in their encounters with police is

essential to their fair treatment in the criminal justice system . 57 The Police Powers and

Responsibilities Act 2000 (Qld)58 ('PPRA') governs police contact with offenders and is

tempered by the Charter of Youth Justice Principles 59 which provides that interventions are

to be pursued primarily in the interest of the youth, guided by fairness and equity.60

A key peculiarity in the treatment of 17 year olds is the lack of equivalent statutory standards

to require police to recognise and consider their vulnerability and to avoid harm against

them.61 The requirement for law enforcement agencies to avoid harm is broadly interpreted62

and could include physical violence, use of harsh language or exposure to a damaging

environment.63 Incidentally, this would present concern about 17 year olds who assault

officers.

3.2.1 Interview

Police interviews of children cannot validly take place without the presence of a parent64 or a

Justice of the Peace,65 whereas interviews with 17 year olds can.

55 Summary Offences Act 2005 (Qld) s 6.56 Coleman v Power (2004) 220 CLR 1, 42 (McHugh J); cf Summary Offences Act 1988 (NSW) ss 4(3), 4A(2)

57 United Nations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), UN Doc A/40/33

(1985), r 10.3.58 Police Powers and Responsibilities Act 2000 (Qld) ss 421 - 3.59 Youth Justice Act 1992 (Qld) Sch 1.60 United Nations Guidelines for the Prevention ofJuvenile Delinquency (The Riyadh Guidelines), GA res 45/112 (1990) cl

5(c).61 United Nations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), UN Doc A/40/33

(1985), r 10.3.62 For example , doing the least harm possible to the child in the first instance , as well as any additional or undue harm.63 Blagg, above n 46.64Youth Justice Act 1992 (Qld) s 9E.65 R v C [1997] 2 Qd R 465; affirmed in DPP v Toonnalatai [2006] VSC 256 (Unreported, Bell J, 15 May 2006) [70].

3.2.1.1 Legitimacy of Statement

Generally, if a youth is accused of an indictable offence, any statement they make is not

admissible unless a support person is present.66 The same does not apply for 17 year olds in

spite of their inability to independently enter into validly binding contracts. 67 If a 17 year old

signs a statement while in an interview in the absence of a support person. Then the

legitimacy of the statement signed is called into question since the 17 year old would not

otherwise have capacity to sign a binding agreement without a guardian. However, this is not

the case in Queensland and such statements are generally admissible. This is also in spite of

the proven vulnerability of children during investigation of criminal offences.68

3.2.2 Search and Seizure

Young offenders should be treated in such a way that will encourage their self-respect.69

Search and seizure on youth are restricted.70 Otherwise, police can have extensive powers

under search warrant against 17 year olds.71 While this is a necessary power, is used in

disregard for the vulnerability of 17 year olds.

3.2.3 Line up

Queensland youth do not have to partake in a line up,72 but can still have their photograph

and fingerprints taken.73 Seventeen year olds must do all of these if required74 which amounts

to a degradation of the rights to dignity.

66 Youth Justice Act 1992 (Qld) s 29( 1), unless an exception applies: see Youth Justice Act 1992 (Qld) s 29(2).

67 Guidelines for Action on Children in the Criminal Justice System, ECOSOC res 1997/30 (1997); United Nations

Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines), GA res 45/112 (1990) cl 5.68 C Alder, I O'Connor, K Warner and et al., Perceptions of the treatment ofjuveniles in the legal system (1992).

69 International Covenant on Civil and Political Right, Treaty Series, vol. 999, 171 and vol, 1057, 407, Art 7.

70 Youth Justice Regulations 2003 (Qld) Div 6.71 Police Powers and Responsibilities Act 2000 (Qld) s 157; considered in R v BBS [2009] QCA 205 (Unreported, de Jersey

CJ, Keane JA and Wilson J, 21 July 2009) [43].72 Youth Advocacy Centre Inc, Laying Down the Criminal Law: A Handbook For Youth Workers (3`d 2009) 69.73 Adler, above n 68.74 Police Powers and Responsibilities Act 2000 (Qld)

3.3 Prosecution

The well-being75 and age76 of a criminally accused child should guide criminal prosecution.

This is taken to mean that youth ought to be treated differently from adults . 77 Further, the

decision to prosecute children is considered a last resort78 and the child 's best interest ought

to be a primary consideration . 79 Therefore , the YJA 1992 (Qld)80 provides that interventions

must be primarily in the interest of the youth, guided by fairness and equity.81

3.3.1 Public Interest Prosecution

The Queensland Director of Public Prosecutions can exercise discretion whether or not to

prosecute based on public interest criteria . 82 Relevant criteria include youth;83 culpability;84

perceptions of counter-productivity to the interests of justice ; 85 public concern ; 86 availability

of alternatives to prosecution;87 and, effect of public order and morale . 88 Regardless of the

contention between these and the rights of children , the prosecution of 17 year olds is

inclined to follow public interests in the absence of statutory protection equivalent to that in

the YJA 1992 (Qid).

3.3.2 Prosecutorial Conduct

The Moynihan Report notes that a police culture hinders full prosecutorial disclosure.89 In

respect of court strategy, unrepresented 17 year olds are especially disadvantaged if they

cannot identify prosecutorial misconduct.90 Consequently, prosecutorial conduct would be

under greater scrutiny in a Children's Court.

75 United Nations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), UN Doc A140/33

(1985), r 10.76 The United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3, Art 40 and United Nations, International

Covenant on Civil and Political Right, Treaty Series, vol. 999, 171 and vol. 1057, 407, Art 14(5).77 United Nations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), UN Doc A/40/33

(1985), r 2.2(a).78 Director of Public Prosecutions of Queensland Director's Guidelines, Guideline 5(i).

79 The United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3, Art 3(1); Van Bueren, The International

Law on the Rights of the Child (1995) 45.80 Does not apply to indictable offences and offence per s 42(IA) Justices Act 1886 (Qld) relating to a further charge after the

commencement of proceedings.81 United Nations Guidelines for the Prevention ofJuvenile Delinquency (The Riyadh Guidelines), GA res 45/112 (1990) cl

5(c).82 Director of Public Prosecutions of Queensland Director's Guidelines, Guideline 4(ii).83 Director of Public Prosecutions of Queensland Director's Guidelines, Guideline 4(ii)(c).84 Director of Public Prosecutions of Queensland Director's Guidelines, Guideline 4(ii)(f).

85 Director of Public Prosecutions of Queensland Director's Guidelines, Guideline 4(ii)(g).86 Director of Public Prosecutions of Queensland Director's Guidelines, Guideline 4(ii)(j).87 Director ofPublic Prosecutions of Queensland Director's Guidelines, Guideline 4(ii)(h).88 Director of Public Prosecutions of Queensland Director's Guidelines, Guideline 4(ii)(t).89 Hon Martin Moynihan AO, Review of the civil and criminal justice system in Queensland, April 2010, 93.90 R v HUA [2009] QCA 165 (Unreported, Keane JA, Cullinane and Jones JJ, 16 June 2009) [42]; and R v YVAB & SBN

[2009] QCA 144 (Unreported, Chesterman JA, Wilson and Applegarth JJ, 29 May 2009).

3.4 Remand and Release

The right of child offenders to be separated from adult offenders in detention exists to assist

the essential aim 'reformation and social rehabilitation ' for children . 91 In furtherance of this,

the YJA 1992 (Qld) provides that a judge or other competent official92 must consider the issue

of release93 without delay , and that detention pending trial should only be used as a last

resort.94 In contrast , 17 year olds are detained with adult offenders from ages 18 onwards, and

consequently may experience criminal contamination. 95

3.4.1 Time Awaiting Trial

An accused child is entitled to a speedy trial,96 ostensibly so that they serve as little time

detained in remand.97 This right is inadvertently contained in the Charter of Youth Justice

Principles.98 However, it is not in the PPRA 2000 (Qld) and Penalties and Sentences Act

1994 (Qld), notwithstanding that 17 year olds have a general human right to a speedy trial.

3.4.2 Segregation

Child offenders should be segregated from adults and accorded treatment appropriate to their

age and legal status . 99 Segregation encourages the development of new and innovative

measures to avoid such detention in the interest of the wellbeing of the child.100 The Charter

of Youth Justice Principleslol provides that a child detained should only be: held in a facility

91 United Nations, International Covenant on Civil and Political Right, Treaty Series, vol. 999, 171 and vol. 1057, 407, Art10(3).92 United Nations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), UN Doc A/40/33

(1985), r 10 .2; note , the accompyning commentary describes a `competent official ' as any person or institution in thebroadest sense of the term , including community boards or police authorities having power to release an arrested person.93 United Nations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), UN Doc A/40/33(1985), r 10.2; compare United Nations, International Covenant on Civil and Political Right, Treaty Series, vol. 999, 171and vol. 1057, 407, Art 9 para 3.94 United Nations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), UN Doc A/40/33(1985), r 13.1.95 Blagg, above n 46.96 United Nations, International Covenant on Civil and Political Right, Treaty Series, vol. 999, 171 and vol. 1057, 407, Art10(2)(b).97 See: The United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3, Art 37(b).98 Youth Justice Act 1992 (Qld) Sch 1, Charter of Youth Justice Principles; see also s 54.99 United Nations, International Covenant on Civil and Political Right, Treaty Series, vol. 999, 171 and vol. 1057, 407, Art

10(3).100 United Nations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), UN Doc

A/40/33 (1985), r 13.1.101 Youth Justice Act 1992 (Qld) Sch 1.

suitable for children;102 provided with a safe and stable living environment; 103 and, helped to

maintain relationships with their family and community.104

If 17 year olds are detained in remand with adults this presents dangers to their well-being

and safety. 1 .05 The death of a detainee in a police watch-house on Palm Island106 exemplifies

the dangers.

There is no real distinction between treatment standards in watch house detention and

detention after sentencing because children are not incarcerated, they are detained.107

Seventeen year olds who remain at the watch house are compared to youth offenders who are

sentenced and placed in detention. Yet, even though 17 year olds may not have been found

guilty, they are still deprived of the right to be separated from adults, which is likened to the

treatment of children detained in Australian immigration detention centres.108

3.4.2.1 Interstate Transfer

A young offender for the purposes of interstate transfer is a person under the age of 18.109

Eighteen year olds from interstate are transferred into detention centres, not prisons. 110

3.4.1 Release

An accused youth could be released without bail and into the custody of their parents or at

large, 111 assuming they meet the suitability requirements, 112 while no equivalent

consideration exists for 17 year olds. 113 Alternatively, a court may order a conditional release

order for a child,' 14 Conditional release is preferred over remand,' 15 especially if the period of

remand becomes excessive.

102 Youth Justice Act 1992 (Qld) Sch 1.103 Youth Justice Act 1992 (Qld) Sch 1, Charter of Youth Justice Principles, Art 20(a).104 Youth Justice Act 1992 (Qld) Sch 1, Charter of Youth Justice Principles, Art 20(b).105 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority

for Children in the Legal Process, Report 84 Canberra, 1997, [20].106 Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991).

107 The Integrated Approach: The Philosophy and Directions of Juvenile Detention Qld Corrective Services Commission

Brisbane 1997.108 Dambach, Mia "KariongJuvenile Correctional Centre: Countless Contraventions of International Law" [2008]

AUJlHRights 7; (2008) 14(1) Australian Journal of Human Rights 171.109 Youth Offenders (Interstate Transfer) Act 1987 (Qld) s 3; cf Juvenile Justice Amendment Act (No 2) 2001 (NT).110 Youth Offenders (Interstate Transfer) Act 1987 (Qld) s 17.]n Youth Justice Act 1992 (Qld) s 51(2).112 Youth Justice Act 1992 (Qld) s 48(3)(a).113 See: Bail Act 1980 (Qld) ss 6 and 19C.114 Youth Justice Act 1992 (Qld) s 220(1).115 United Nations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), UN Doc

A/40/33 (1985), r 28.1.

3.5 Court Appearance

3.5.1 Diversion

The availability of non judicial intervention in dealing with young offenders is a recognised

right. 116 Diversion is intended to avoid the danger of trapping young people with a previously

good record in a pattern of offending behaviour.' 17 Indeed, the ALRC noted that

"...[d]iversion of a juvenile offender away from the criminal justice system to community

support services is the optimal response to the problem of juvenile crime."118

3.5.1.1 Conferences

Youth Justice Conference and Drug Diversion Assessment Program 119 are available in lieu of

a determination by a court. However , 17 year olds do not enjoy these diversionary measures

and the punitive nature of criminal justice processes does not recognise their

vulnerabilities .120 The YJA 1992 (Qld) also provides the added potential for an apology to the

victim associated with the caution.

3.5.2 Children's Court Compared with Ordinary Courts

An accused youth will attend the Children's Court121 while a 17 year old will attend another

court, depending on what they are charge with. In all Australian jurisdictions, 122 the

Children's Court generally determines all offences summarily,123 including indictable

offences, 124 although it may hold committal proceedings125 or a preliminary examination in

some situations.126 The indictable charges of 17 year olds remain indictable in whichever

court they appear. If a youth is committed for trial, they may elect to have the matter dealt

116 The United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3, Art 40(3)(b); United Nations StandardMinimum Rules for the Administration of Juvenile Justice (The Beijing Rules ), UN Doe A/40/33 ( 1985), r 11.2: The police,the prosecution or other agencies dealing with juvenile cases shall be empowered to dispose of such cases , at their discretion,

without recourse to formal hearings , in accordance with the criteria laid down for that purpose in the respective legal systemand also in accordance with the principles contained in these Rule.117 Above n 18.36; citing in M Findlay, S Odgers and S Yeo Australian, Criminal Justice (1994) 267.

118 Ibid.119 Youth Justice Act 1992 (Qld) s I1(1)(d).120 Above n 18.37.121 Note , Magistrates Court may aid its jurisdiction in certain circumstances : Youth Justice Act 1992 (Qld) s 65.122 Youth Justice Act 1992 (Qld) s 77; Children's Services Act 1986 (ACT) s 41; Juvenile Justice Act 1983 (NT) s 35;

Children (Criminal Proceedings) Act 1987 (NSW) s 31(1); Young Offenders Act 1993 (SA) s 17; Child Welfare Act 1960

(TAS) s 27; Children and Young Persons Act 1989 (VIC) s 134; and Children's Court of Western Australia Act 1988 (WA) s

19B(4).121 Rae v R (1993) 70 A Crim R 59.124 Youth Justice Act 1992 (Qld) s 77.125 Youth Justice Act 1992 (Qld) s 81.126 Youth Justice Act 1992 (Qld) s 64.

with by a Children's Court judge rather than by judge and jury,127 while a 17 year old does

not have that option and may not even have the prerequisite cognisance to respond

appropriately.

3.5.3 Evidentiary Matters

3.5.3.1 Inculpatory Statements

An important control on police practice is the retrospective exclusion of evidence by courts

and complaints to police complaints authorities. The efficacy of court review depends, at a

minimum, on the matter being brought to the court's attention through the young person

challenging voluntariness of the confession.128 A formal statement of rights does not need to

be given to 17 year olds, so they may not understand the effect of an inculpatory statement or

confession to police even if such a statement is technically admissible.

3.5.3.2 Competence to Give Evidence

It is generally assumed that the testimonial evidence of children is unreliable129 eg.,

corroboration and judicial warning required.130 This produces the perplexing outcome where

a 17 year old might not be competent to give evidence but is tried as an adult.

3.5.4 Trial Procedures

3.5.4.1 Closed Court

In proceedings of the Children's Court, the Court must exclude anyone who is not the child,

their guardian, a witness , victim or representative.131

3.5.4.2 Privacy

The privacy of an accused youth must be respected at all stages of criminal proceedings132 to

avoid harm caused by undue publicity.133 The arbitrary or unlawful interference with a

127 Youth Justice Act 1992 (Qld) s 76(1).128 A MacMillan , A National Approach to Juvenile Justice, Paper presented to the Australian Institute of CriminologyNational Conference on Juvenile Justice, Adelaide , September 1998; Ian O 'Connor , Children in Justice, Longman Cheshire,

(1988) 16-29 ; and Human Rights and Equal Opportunity Commission 1989, Our Homeless Children , Discussion Paper No

21, Canberra, Ch 21; R v John Thomas J (No.2) 1990] 2 SCR 755 (Huband and O'Sullivan JJA; Monnin CJM dissenting).

129 J Heydon , Evidence : Cases and Materials (2" 1984) 84; cited in above n 25, 14.15.130 R v Brasier (1779) 1 Leach 199; adopted in Cheers v Porter (1931) 46 CLR 52; followed in R v Brown (1977) Qd R 220

and R v Schlaefer (1992) 57 SASR 423.131 Childrens Court Act 1992 (Qld) s 20(1).132 The United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3, Art 40(2)(b)(vii); United Nations,

International Covenant on Civil and Political Right, Treaty Series, vol. 999, 171 and vol. 1057, 407, Art 14.133 United Nations Standard Minimum Rules for the Administration ofJuvenile Justice (The Beijing Rules), UN Doc

A/40/33 ( 1985), r 8.1.

youth's privacy is prohibited under international law, 134 The interests of children require non-

publication of court proceedings and judgments,135 as affirmed by the Human Rights and

Equal Opportunity Commission.136 In the Children's Court, that is generally the case.137

However, court proceedings involving criminally accused 17 year olds do not operate under

this standard.138 While this amounts to a human rights contravention it is necessary to

maintain transparency in court proceedings for the sake of the rule of law. In NSW,139

children are persons under the age of 18 and publication and broadcasting of the names of

child offenders are generally prohibited but it has a more expansive list of qualifications,

including if a child is 16 or older and consents. 140

3.5.4.2.1 Identity Disclosure

The 2009 Amendment141 to the YJA 1992 (Qld), inserted a provision that is colloquially

known as the `name and shame' provision. Seventeen year olds are identified in open court,

whereas children have anonymity in closed court unless there is a deliberate justification to

`name and shame' them.142 This can operate as a sanction for child offenders,143 while it is

part of the court processes for a 17 year old and does not detract from further sentencing.

Alternatively, the court may exercise its discretion to exercise the exception if the offence is

heinously violent, whereas the misdemeanours of 17 year old are automatically public.

Effectively, where this operates as a sanction for youth, it operates as common practice for 17

year olds.

134 The United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3, Art 16; United Nations, International

Covenant on Civil and Political Right, Treaty Series, vol. 999, 171 and vol. 1057, 407, Art 17.135 United Nations, International Covenant on Civil and Political Right, Treaty Series, vol. 999, 171 and vol. 1057, 407, Art

14(1).136 Submission Of The Human Rights And Equal Opportunity Commission to The NSW Legislative Council's StandingCommittee On Law And Justice on The Inquiry Into The Prohibition On The Publication Of Names Of Children Involved In

Criminal Proceedings, 7 December 2007, [17].137 Justices Act 1886 (Qld) s I54(2)(a) unless the application is made by or on behalf of a person who feels aggrieved by aconviction or order of any justice or justices in connection with the institution of an appeal against that conviction or order,

or where the Minister otherwise determines.138 Criminal Code 1889 (QId) Ch 8.139 Children (Criminal Proceedings) Act 1987 (NSW) s 11.14° Children (Criminal Proceedings) Act 1987 (NSW) s I1(4)(a).141 Youth Justice Act 1992 (Qld) Part 9.142 Youth Justice Act 1992 (Qld) s 234(a).143 Youth Justice Act 1992 (Qld) S 234(a)

3.5.4.3 Court Support

The Children's Court will not allow the prosecution of a child unless that child has had

reasonable opportunity to obtain or refuse legal representation.144 In practice this means that

an accused child is not guaranteed legal aid but they must be informed of the right to obtain

legal advice and have reasonable information about how to obtain it and a reasonable

opportunity to do so.145 Further, youth are required to have access to legal and other support

services.146 Indigenous 17 year olds do not have access to indigenous support officers,147

against Art 30 CROC.148 Similarly, non-indigenous 17 year olds will not gain court support if

they are unrepresented and do not qualify for legal aid, 149 which renders the courts unable to

assist seventeen year olds in attaining a just outcome. This adds weight to the need for

reform.

144 Youth Justice Act 1992 (Qld).145 Youth Justice Act 1992 (Qld) s 35(2).146 Youth Justice Act 1992 (Qld). Sch 1 sub 15.147 Australian Institute of Health and Welfare , (2009) ` Juvenile Justice in Australia 2007-08' , Juvenile Justice Series (No 5),124; L Snowball, Diversion ofIndigenozus juvenile offenders. Trends and Issues in Crime and Criminal Justice, No 355,Australian Institute of Criminology (2008).148 The United Nations Convention on the Rights of the Child (1989) 1577 UNTS 3.149 Dietrich v R (1992) 177 CLR 292.

4.0 REFORM DEBATE

4.1 Arguments for treating seventeen year olds as adults in pre-adjudicationarrangements

4.1.1 Cost-efficiency

Special measures for children require funding.150 Indeed, during the passage of the Juvenile

Justice Bill 1992 (Qld), it was explained "... the magnitude of the task in establishing the

necessary infrastructure to implement this legislation as it applies to children using current

definitions of age. "151 Changing the age arrangements would disrupt the expenditure on

youth justice, and would require more funding.

4.1.2 Paternalism

A child's autonomy depends on their level of development and their capacity to assume

responsibilities and obligations. 152 At the time of ratification of CROC, the then Opposition

approved of the general thrust of the Convention but had reservations about the lack of strong

statements about parental control to maintain the best interests of the child.153 Indeed, in

Marion's case,154 Brennan J held that although the legal rights of parents over their children

are not automatically absolute, they are if they are in the child's best interests.155 Reform

might upset that status quo, and the construct of modern Australian families.

4.1.2.1 `We Know What's Best' Mentality

The Family Law Reform Act 1995 (Cth) introduced the concept of parental duties and

responsibilities. Family and child mediation and counselling services can be provided to

resolve disputes. This is also demonstrated by the legislative approval of the reasonable force

to discipline children with domestic discipline.156 The fact that the prosecution of children is

described as `moral street sweeping' 157 indicates a similarly conservative view.

150 Terry Hutchinson, `Being seventeen in Queensland: A human rights perspective on sentencing in Queensland' (2007)32(2) Alternative Law Journal 81-85.151 Queensland, Legislative Assembly, Second Reading Speech, Juvenile Justice Bill 1992 (Qld) (5 August 1992) p 6130;cited in Terry Hutchinson, ` Being seventeen in Queensland: A human rights perspective on sentencing in Queensland'(2007) 32(2) Alternative Law Journal 81-85..152 Melinda Jones, `Myths and Facts Concerning the Convention on the Rights of the Child in Australia' (1999) 5(2)Australian Journal of Human Rights 126.153 See: petitions tabled in Parliament particularly in relation to Articles 12 to 16.154 Secretary of Department ofHealth & Community Services v JWB (Marion's Case) (1992) 175 CLR 218, 266 (Brennan J).155 Secretary of Department of Health & Community Services v JWB (Marion's Case) (1992) 175 CLR 218, 266 (Brennan J).156 Criminal Code 1889 (Qld) s 280.157 M Maguire, R Morgan and R Reiner, The Oxford Handbook of Criminology (1995).

4.1.2.1 Political Sensitivity

Reform in youth justice is a politically sensitive issue. In a media release about the 2009

Amendments to the YJA 1992 (Qld), the Hon Karen Struthers158 said "[t]he Bligh

Government is tough on youth crime and tough on its causes" and"... [t]he changes we have

made are based on evidence and community feedback."

4.1.3 Reactionary Public Opinions

Popular reactionary views towards delinquency inhibit lasting reform and have the effect of

overshadowing the human rights implications. Empirical literature159 and media

publications'60 demonstrate draconian public views of appropriate responses to youth

delinquency. For example, the Committee for an Inquiry into crime in the community

observed "... There is ... a need to ... obtain accurate information regarding risk and to

ensure that the information is made available to the community."161 A 2006 Coalition Media

Release described an isolated incident of a youth homicide and was critical that: "... the

Beattie Labor Government has clearly failed to reassure the community that it can ensure

they live in a safe community." 162 This culture of fear might prevent lasting reform.

158 Karen Struthers, `Queensland Youth Justice Laws overhauled' (Press Release) 28 March 2010.159 Chris Cunneen and Rob White, Juvenile Justice, Youth and Crime in Australia (2nd ed 2004); Fergus McNeill, Youth

Offending and Youth Justice (2009).160 Kathleen Noonan, 'Behind bars at just 17' The Courier Mail, (Queensland) 28 February 2010; Charlotte Glennie,`Juvenile detention laws creating school for crims', ABC News, (Australia), 31 December 2009.161 Commonwealth, 2005 Inquiry into crime in the community: Victims, Offenders and Fear of Crime: Joint Standing

Committee of Constituional and Legal Matters, Parl Paper No. 19 (2005), 2.140.162 Queensland Coalition, (2006) `Juvenile justice policy', Queensland Coalition, Policies (Queensland Coalition) 85.

4.2 Arguments against treating seventeen year olds as adult in pre-adjudication arrangements

4.2.1 Law Enforcement Relief

Diversion is considered to save law enforcement resources .163 Minister the Hon Ann Warner

noted: `... [cautioning] is usually a sufficient deterrent to further offending.'164 The rationale

for cautioning is to divert children from appearing in court.165 Reform might relieve the

efforts of law enforcement agencies.

4.2.2 Youth Justice Jurisprudence

The justice model focuses on the youth's due process rights, the potential intervention for

non-criminal matters, rehabilitative ideals and a decrease in discretionary powers exercised

by child welfare bureaucracies. 166 Many reformers were concerned about the harm suffered

by children at the hands of bureaucracies acting in children's `best interest'. Coercive

intervention on welfare grounds is theoretically restricted.167 The model proposes that

children should not only be subject to the law but also benefit from the protection of the law.

Finally, principles of restorative justice are based on the repair of delicate matters, 161 which

effectively affirm the desirability of treating 17 year olds as youth and support reform.

4.2.1 Statistics of Youth Offending

In the 2000/2001 Annual Report of the Children's Court of Queensland, Judge Kerry O'Brien

said: "The statistics do not support any significant increase in youth crime, indeed the

substantial decrease in the number of defendants appearing before the Children's Court of

Queensland and the District Court, suggest a reduction in more serious crime by youth".169

(See Figures 2.0) Media publications ignore these statistics,170 Reform should occur because

17 year old offenders are not a growing threat to society.

163 Above n 25; Terry Hutchinson, `When is a Child Not a Child' (2006) 30 Criminal Law Journal 1-8.

164 Queensland, Legislative Assembly, Second Reading Speech, Juvenile Justice Bill 1992 (Qld), 5 August 1992, 6130 (The

Hon Ann Warner).165 The Queensland Police caution the majority of juvenile offenders. However, most are cautioned for minor offences: See

C Alder, I O'Connor, K Warner and et al., Perceptions of the treatment ofjuveniles in the legal system (1992).166 Australian Law Reform Commission, Child Welfare, Report No 18, Canberra (1981).167 A D Morris and H tiller, Understanding Juvenile Justice (1987).168 R v Tian; Exparte Attorney-General [2002] QCA 21 (Unreported, Richards J, 9 February 2001).169 Judge Kerry O'Brien President of the Childrens Court, Childrens Court of Queensland Annual Report 2001-2002, 3.

170 Chris Logan, `Few Qld juvenile offenders sentenced to detention: report' ABC News, (Australia) Dececmber 15 2009.

z,5C

1, 000

s,mn

R 14 tg 16 i7+ UPfkI 0,tr

Figure 2.0 - statistics of youth offending in 2008-2009Excerpt from Judge Julie M Dick SC President of the Childrens Court, Childrens Court of Queensland AnnualReport 2001-2002 at page 32 accessed at http://www.courts,qld.gov.au/ChildrensCourt/CC-AR-2008-2009,pdf.

4.2.1 Excessive Media Distortions

The level of community fear of crime is contributed to significantly by the manner of media

reporting of crime, and specifically youth crime.171 Legal Aid Queensland argued that this

contributes to a false sense of fear in the community about levels of youth offending.172

Further, the Riyadh Guidelines note labeling a young person often contributes to the

development of a consistent pattern of undesirable behaviour by young persons.173

4.2.2 Age Standard Anomalies

The continued treatment of 17 year olds as adults lacks support from other areas of law, given

the anomalies between age standards ( see Figure 3.0).

171 Commonwealth, 2005 Inquiry into crime in the community: Victims, Offenders and Fear of Crime: Joint StandingCommittee of Constituional and Legal Matters, Parl Paper No. 19 (2005), 2.140.172 Legal Aid Submission to Commonwealth , 2005 Inquiry into crime in the community : Victims, Offenders and Fear ofCrime: Joint Standing Committee of Constituional and Legal Matters, Parl Paper No. 19 (2005).173 United Nations Guidelines for the Prevention ofJuvenile Delinquency (The Riyadh Guidelines), GA res 45/112 (1990),Principle 5.

Differences in Statutory Age Requirements in Queensland

Orange = crlr r nal responsibilityBlue =abillty tp ceesenl and crvi padicipabpnGreen = self-sufficiency and independencePurple = requires sensibility and maturity. nut recklessness

Jerk Part T(r1LP (tonrtod i f crt corn;

F fu t Js* Nant (. h arrge

Crr Sent to 3rdc ptrots

Offr-ntlers 'Treated as Children'

Garijb^eBuy C 1a _tes / Din,. in Ptll](IC

SUe vnd flu SuedMake a V311d \Nlll

14arry.....

POf03 lii Travel

Jury Duty

Pr, (on[_recfs

Vote

Offenders Treated as Adults'

[U U r rs Llcr.-n Ce

_ ......Consent to Sa,;

Conceit to Mcid ca, r atnur Poum nim air r F1iyil/

Youth dllc tvancc Uf In:iepenoent)Work Poll-Time

Ltdlvl Ins Medleara UPS init

on of (r aor IO)

appear iii Ciriidn

fh CourCs li scrc

1

' Note !fiat Borne uuceplrons e/sely fp the 19+ aye re0wiemenls - consent may he ennppted With parerrRrl convent.

Figure 3.0 anomalies of age standards

5.0 RECOMMENDATIONS

• In anticipation of the next review of the Committee of the Rights of the Child,

Queensland should implement methods to respond to human rights contraventions in

the treatment of criminally accused 17 year olds, such as:

o Police need a clear statement of the rights of young people in the criminal

justice system . Yet there is no clear statement of children ' s rights in

interactions with police in Queensland;

o Seventeen year olds should be kept in accommodation similar to youth in

remand, at least until they are found criminally liable; and,

o Seventeen year olds might benefit from alternative diversionary measures that

are designed just for them.

• There should be greater dissemination of the declining statistics of youth offences, in

accordance with the aims of the Australian Bureau of Statistics and Youth Task Force.

• Media publications should be monitored to ensure that precautions are taken not to

distort youth delinquency.

• After, these recommendations are considered, the definition of child under Sch 4 YJA

1992 (Qld) should be amended extend to a person under the age of 18.

6.0 CONCLUSION

The treatment of 17 year olds in Queensland leading up to the point of a finding of their guilt

or innocence as it is goverened by Queensland Criminal Laws, amounts to a contravention of

international human rights standards. As demonstrated by an analysis of the YJA 1992 (Qld),

17 year olds are adversely treated compared with thieir younger counterparts. Further, this

treatment is inconsistent with domestic Queensland laws and is a matter that requires

attention for the purposes of reform.

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