Public spaces

18.67 The relationship between police and young people is particularly difficult when they are interacting in public spaces. Children are highly visible on the streets because they tend to spend their time there socialising in groups.^[155] The majority of young people in the focus groups stated that young people are regularly hassled and harassed by police when hanging around together in public places.^[156] The harassment is said to be verbal and physical.^[157] Police often stop young people in the street and ask for their names and addresses without a good reason.^[158] A legal aid commission solicitor gave evidence that one police officer in Rockhampton estimated he had stopped 200 young people over the course of several nights.^[159]

Police think that every teenager out at night must be up to no good.^[160]

I hate being asked for my name and address when I’m only sitting at the station waiting for a train and when I refuse to give it they think you are hiding something.^[161]

18.68 These problems are also manifest in private spaces used for public purposes such as shopping and entertainment complexes where private security guards ‘police’ young people.^[162] For example, in 1995 the South Bank Corporation Act 1989 (Qld) was amended to enable private security guards to issue notices excluding people causing a public nuisance from the South Bank retail centre for up to 10 days.^[163] Conduct causing public nuisance is defined in the legislation as being drunk or disorderly or creating a disturbance.^[164] A young person who enters the area in breach of a notice commits a criminal offence.^[165] This means that private security guards can extend the scope of the criminal law, criminalising actions that would otherwise be lawful.

In practice this has meant that private security guards have even greater powers than the State police to exclude young people from certain city sites.^[166]

18.69 Young people who participated in a recent survey conducted for the Australian Youth Foundation expressed similar concerns about treatment by security guards as they did about treatment by police.

They follow you around as if you’re going to steal just because you’re young.

They usually watch us really carefully. More than anyone else. We get all the looks and scathing glances.^[167]

18.70 The Midland Gate shopping centre in Western Australia has taken a different approach, employing a youth worker. This has lead to greater co-operation between all members of the shopping centre community, including the manager, shopkeepers, young people and other customers.^[168] Vandalism, shoplifting and security costs at the centre have decreased.^[169]

18.71 The federal Government has recently announced a project on young people’s use of public space as part of NCAVAC. The project aims to develop models of good practice for negotiating young people’s use of public space, with attention being given to the particular needs of Indigenous young people and those from non-English speaking backgrounds.^[170]

18.72 The Inquiry considers that State and Territory governments should ensure that legislation does not empower private security organisations to extend the scope of the criminal law. OFC should convene a working party of relevant government, community and industry bodies, including the Business Council and retail traders’ associations, and young people to develop guidelines for security organisations dealing with young people in privately owned spaces used for public purposes.^[171] These guidelines should emphasise the benefits, both in terms of social development and crime prevention, of involving young people in commercial communities rather than alienating them. The guiding principles recently developed by the Australian Youth Foundation could be used as a basis for the guidelines.^[172]

Preventive apprehension

18.73 In a number of jurisdictions police have statutory power to remove children from public places if they are considered at risk of offending even though they are not suspected of illegal activity. For example, police in Western Australia have the power to apprehend a child who is away from his or her place of residence, not under the immediate supervision of a responsible person and ‘in physical or moral danger, misbehaving or truanting from school’ and escort the child home or to school.^[173] This section was used by Western Australian Police as the basis for the controversial Operation Sweep. Between January and March 1994, 500 young people were taken into custody pursuant to the provision.^[174]

18.74 The Children (Parental Responsibility) Act 1994 (NSW) gave police power to remove children under the age of 15 from public spaces if they not under the supervision of an adult to reduce the likelihood of a crime being committed or of the young person being exposed to some risk.^[175] The operation of this legislation was limited to pilot schemes in Orange and Gosford. It was widely criticised for the broad discretion given to police and the perceived disparate impact on certain groups of young people, such as Indigenous young people.^[176] An independent review of the legislation by the consultants Kearney McKenzie found that it was unlikely to have any impact on reducing juvenile crime.^[177] However, it was strongly supported by many local governments and by rural and regional communities.

18.75 The NSW Parliament has recently passed the Children (Protection and Parental Responsibility) Act 1997 (NSW) which repealed the 1994 Act and re-enacted it with a number of modifications. Under the legislation a local government council can apply to the NSW Attorney-General to have its area declared operational.^[178] Police will be empowered to remove young people from public spaces in operational areas and escort them to the home of a carer.^[179] Before declaring an area operational the NSW Attorney-General will have to be satisfied that adequate crime prevention or youth support initiatives will be in place.^[180]

18.76 The Act defines a child at risk as being in danger of being physically harmed or abused or being about to commit an offence.^[181] The age up to which a young person may be apprehended in this manner has been raised from 15 to 16.^[182] The legislation gives police considerable discretion in determining which children are in danger of harm or offending.

18.77 The Children (Protection and Parental Responsibility) Act 1997 (NSW) also establishes a juvenile crime prevention structure.^[183] Local government councils will be encouraged to adopt local crime prevention plans after community consul-tation. If the Attorney-General approves the plan as a safer community compact, the council will be eligible to apply for financial assistance for its implementation.

18.78 The crime prevention aims of the Act are laudable. However, the legislation remains problematic. It allows police to monitor youth behaviour that is not criminal. It sanctions preventive apprehension but provides little or no accountability for police actions or judicial supervision. It allows police to act on stereotypes about young people. Many submissions argued for the repeal of this and similar legislation in other jurisdictions.^[184] The Inquiry agrees with them.

18.79 The across the board youth curfews recently proposed in a number of jurisdictions are further extensions of preventive apprehension provisions.^[185] For example, the Northern Territory Government has recently proposed the use of electronic bracelets to impose a night time curfew on certain children.^[186]

Youth curfews represent a sweeping measure designed to clear the streets of young people once again, regardless of whether or not they have done anything wrong, much less illegal.^[187]

The Inquiry is opposed to arbitrary restrictions on the movement of young people who have committed no criminal offence. These restrictions breach the human rights of young people.^[188] If young people are at risk for welfare reasons they should be supported by the care and protection system not criminalised. Law enforcement responses to children at risk are inappropriate and increase the tension between young people and the police.

Specialist training and police officers

18.80 The Beijing Rules provide as follows.

In order to best fulfil their functions, police officers who frequently or exclusively deal with juveniles or who are primarily engaged in the prevention of juvenile crime shall be specifically instructed and trained. In large cities, special police units should be established for that purpose.^[189]

18.81 Many police stations in Australian cities have dedicated youth officers. For example, in November 1994 Victoria Police appointed 23 District Youth Advisers to develop and co-ordinate police/youth programs across the State. Since November 1995 their work has been complemented by that of station youth officers.^[190] Similar arrangements exist or are being developed in a number of other jurisdictions.^[191]

18.82 Contact between young people and police can have serious consequences for young people if it is adverse. There should be at least one officer trained in children’s issues in each patrol. In one officer stations, that officer must be appropriately trained. Each major station should have a specialised youth officer who deals only with matters involving young people. Properly trained police will encourage a better informed approach to policing young people and a greater rapport between the police service and the young people in a local area.^[192]

18.83 In her recent report on interaction between the AFP and young people in the ACT, the Commonwealth Ombudsman emphasised that the most effective way of improving adherence to police procedure is a combination of training and super-vision. There needs to be a continuing, structured and monitored training process.^[193]

…best practice guides [should] be developed which cover all aspects of police pract-ices concerning children. I consider that these should include not only a reference to the applicable law but also a series of prompts to alert an officer to consider that a situation involving a child requires a response which is different from the norm. Guidelines should require a series of action steps rather than be rigid rule books.^[194]

Police training in children’s matters should deal with the contexts of children’s lives and the variety of social, cultural and economic factors that contribute to juvenile offending. One of the aims of training should be to promote respectful inter-actions between police and young people. As one young person told the Inquiry

I treat the police with respect and they treat me the same way and that’s the way it should be at all times!^[195]

Recommendations concerning specific components of that training will be made throughout this chapter.^[196]

Summons and arrest

18.84 In some jurisdictions legislation or police instructions restrict the circumstances in which children can be arrested.^[197] This is in addition to legislation and guidelines governing arrest generally.

18.85 Section 3W(1)(b) of the Crimes Act provides that a constable may arrest a person suspected of a federal offence without a warrant if proceedings by summons against the person would not achieve one or more of the following purposes

(i) ensuring the appearance of the person before a court in respect of the offence

(ii) preventing a repetition or continuation of the offence or the commission of another offence

(iii) preventing the concealment, loss or destruction of evidence relating to the offence

(iv) preventing the harassment of, or interference with, a person who may be required to give evidence in respect of the offence

(v) preventing the fabrication of evidence in respect of the offence

(vi) preserving the safety or welfare of the person.

The AFP has submitted that this provision provides reasonable tests against which decisions about whether to arrest or summons should be made and that it could form the basis of national standards in this regard.^[198]

18.86 Young suspects who are arrested under paragraph (vi) for their own welfare should be provided with appropriate health and welfare support services as soon as possible and prior to any interrogation. In other respects, the grounds listed in s 3W are appropriate bases for arrest.

18.87 The problem seems to be not that the restrictions on arresting juveniles are inadequate but that they are not complied with in enough cases. Police in many jurisdictions continue to rely heavily on arrest when dealing with young suspects.^[199] Arrest can be a traumatic and disturbing experience, particularly for children, and may be unnecessarily stigmatising.^[200] In practice, arrest may limit a child’s access to legal advice and place him or her at a greater relative disadvantage in the case than would proceeding by way of a summons or a court attendance notice. The fact of the arrest may also influence later police and court decisions and result in a more severe outcome for the child. Arrest should not be used purely as an investigative tool.^[201]

18.88 Police may sometimes decide not to arrest suspects and to rely instead on their ‘voluntary attendance’ to avoid statutory limitations on questioning.^[202] Whether this attendance is truly voluntary depends on the suspect’s understanding of his or her rights. Many adult suspects feel compelled to comply with police directions whether they have been arrested or not.^[203] This feeling of compulsion is likely to be exaggerated for young people who are already at a disadvantage in terms of experience and authority.

18.89 Indigenous children are arrested at a higher rate than non-Indigenous young people.^[204] For example, in 1994–95 46.6% of Aboriginal juvenile alleged offenders processed in Victoria had been arrested compared with 23.5% of non-Aboriginal children.^[205] In the same period in South Australia, 41.4% of young Aboriginal suspects were apprehended by means of arrest compared with 25.1% of young non-Aboriginal suspects.^[206] Six years ago the Royal Commission into Aboriginal Deaths in Custody recommended that arrest be used as a last resort against Indigenous young people.^[207] Clearly that is far from the case.^[208]

18.90 The 1994 ABS National Aboriginal and Torres Strait Islander Survey

…established a strong negative relationship between arrest rates and subsequent employment outcomes…The analysis found that, all other things being equal, the fact of having been arrested within the five years prior to the survey reduced the chances of employment by half.^[209]

In some circumstances, arrest may perpetuate a cycle of crime. The problem of inappropriate policing of Indigenous children should be addressed through a number of mechanisms, including cross-cultural training programs, monitoring of arrest rates and clear police instructions on the subject.

18.91 The Inquiry considers that a summons or court attendance notice should be preferred to arrest in dealing with young suspects. Arresting officers must be accountable for their actions. When scrutinising the charges that an arresting officer proposes to lay against a young person, the officer in charge should always consider specifically whether arrest was necessary 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.^[210]

18.92 The Inquiry is aware that in some cases arresting a young suspect will be enough in itself to defuse a difficult or dangerous situation. In these cases the arresting officer’s actions should not be grounds for criticism but the supervising officer should ensure that the matter continues by way of summons. The Inquiry supports the recent recommendation of the Wood Royal Commission that police be given training in informal problem solving and conflict resolution techniques to moderate behaviour and to defuse situations that have the potential to result in arrest.^[211]

18.93 There is sometimes a problem with delays in summonses being served. Submissions suggested that in some States it can take up to six months for a child to receive a summons.^[212] During the time taken to issue the summons children can be uncertain and anxious about status of the matter. In addition, they may forget details of the event and may no longer be able to give proper instructions to their legal advisors. Delay also affects the effectiveness of the criminal justice system. Children need to account for their misconduct and be disciplined for it as soon as possible after it occurs if they are to learn appropriate behaviour from the experience. The Inquiry considers that this problem should be addressed by each police service through reforms to administrative procedures. Police are not subject to time limits in their investigations but generally a young suspect should receive a summons within 2 months of an alleged offence.

Notification of arrest

18.94 The Beijing Rules require police to notify a child’s parents or guardians as soon as possible of his or her apprehension.^[213] This obligation is reflected in legislation in the Northern Territory, Queensland, South Australia and the ACT.^[214] In other jurisdictions this matter is covered by police instructions only.^[215]

18.95 The Commonwealth Ombudsman recently reported on 20 cases of interaction between the AFP and young people in the ACT. Six cases involved complaints that juvenile suspects’ parents had not been advised that their child had been detained. In one instance, a 16 year old boy was arrested, interviewed, breath-tested and charged with a breach of his bail conditions without his parents being notified.^[216] This is despite the fact that notification is required by legislation in the ACT.

18.96 The Inquiry considers 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.^[217] However, before notifying carers police should consult the young person to determine whether he or she has any objections to this course of action. Where it appears that a child’s safety may be compromised by contacting his or her carers in this situation, the relevant community services department should be contacted instead. In addition, the police commissioner of each jurisdiction should ensure that police receive regular reminders of the importance of ensuring that young people’s carers are notified of their child’s detention in custody.

Investigative procedures and admissibility of evidence

18.97 The Crimes Act determines how the police should investigate a possible breach of federal law.^[218] If the federal offence was committed at the same time as a State or Territory offence, federal law operates in addition to State or Territory provisions to protect the rights of suspected or accused people.^[219] Where the Crimes Act is silent about investigative procedures or where the State or Territory law is consistent with the federal law, the relevant law of the State or Territory operates.^[220] The High Court has said that the arrangement is important in ensuring

…that Federal criminal law is administered in each State upon the same footing as State law and avoids the establishment of two separate systems of justice.^[221]

18.98 Police interviews of young people suspected of committing a crime usually take place at the local police station in the general interview rooms. Before starting to question any person who has been arrested for a federal offence, police are required to advise the suspect of his or her right not to answer any questions.^[222] This is known as the caution against self-incrimination and is part of an accused person’s right to silence.^[223] A similar obligation arises under legislation or the common law in each of the States and Territories.^[224] Submissions to the Inquiry suggested that in practice children are not made sufficiently aware of their rights by federal, State or Territory police during questioning.^[225] This is a matter of serious concern.

The arena of police questioning remains one of the most controversial in the policing system as it relates to young people. It will tend to be at this moment that the vulnerability of the child or young person will make them susceptible to the pressures intrinsic to being detained by police. They may make self-incriminatory remarks or feel compelled to agree with suggestions made to them by police. Even if the police have not set out to deliberately ‘soften up’ or ensnare the suspect, the surroundings and the process itself are inherently intimidating and unsettling.^[226]

18.99 Section 215 of the Children, Young Persons and Their Families Act 1989 (NZ) provides a good model. It sets out the rights children should be informed of before being questioned by police, whether they have been arrested or not. These include the right to silence, the right to stop making a statement at any time and the right to make any statement in the presence of a legal practitioner.

18.100 Confessions or admissions made during police interviews by people suspected of committing federal crimes are generally inadmissible unless they have been tape recorded.^[227] This requirement also applies in several States.In NSW, for example, evidence of an admission is not admissible unless it has been recorded on audio or videotape.^[228] In Tasmania evidence of any confession or admission in relation to an indictable offence is not admissible unless it was videotaped.^[229]

18.101 The Inquiry considers that admissions and confessions by child suspects should only be admissible as evidence if they have been electronically recorded. This proposal was supported by a number of submissions.^[230] It was opposed by the Northern Territory Government which considered current legislative safeguards sufficient.^[231] The Western Australian Ministry of Justice did not think it practical.^[232] However, the proposal simply extends existing provisions in some States to all jurisdictions. The resource implications of the recommendation are not great. Electronic recording of interviews is an essential accountability mechanism. Smaller police stations should have facilities to tape record interviews if videotaping facilities are not available.^[233]

Interview friends

18.102 The Crimes Act places restrictions on police questioning of people under arrest, particularly children. For example, before a police interview young people have the right to communicate with a friend or relative and a lawyer in circumstances where the conversation cannot be overheard. They have the right to have an adult interview friend present during questioning.^[234]

18.103 The presence of the interview friend is an important means of compensating for the disadvantage experienced by young people when being interviewed by police. Robert Ludbrook, former director of the National Children’s Youth Law Centre, has summarised the factors contributing to children’s disadvantage in this situation as vulnerability to pressure, socialisation to agree with adult authority figures, lack of verbal fluency and a tendency to make false confessions under expert or hostile questioning.^[235]

18.104 Under the Crimes Act, an interview friend may be a parent, a guardian or the young person’s legal practitioner. If none of these people is available the role may be filled by a friend or relative of the young person’s choice. If such a person cannot be located then the interview friend must be an independent person.^[236] In most States and Territories legislation requires that an independent third person be present to provide support to young people during police interview.^[237] For the purposes of this discussion all these support persons are referred to as interview friends.

18.105 The role of the interview friend can be problematic.^[238] He or she is not intended to act as an advocate for the child but is present as a support person and to discourage, by his or her presence, oppressive conduct by police to ensure that any statements made by the child are voluntary.^[239] Many children choose a parent as an interview friend. A parent or other independent adult may not be willing or able to protect the child’s interests. On occasions a parent may seek to have the child ‘taught a lesson’ and advise the child against his or her legal interests. The interview friend should not be seen as a substitute for a legal adviser, unless of course the particular person is legally qualified.^[240]

Parents may be as intimidated by the process as their children. While it is appropriate to have parents present, this should not be at the expense of legal support.^[241]

It is particularly important that the role of interview friend is not performed by a police officer.^[242] The role and responsibilities of the interview friend should be defined by statute.

18.106 A number of the young people in the focus groups said that the interview friend should be someone of the suspect’s choice.^[243] Many children prefer not to have their parents present during an interview because they get too upset.^[244] Young people should be able to choose who performs the role of interview friend.^[245] A person cannot support a child if the child does not feel confident and comfortable with that person in the role. If the child does not wish to choose or the person nominated cannot be contacted then a statutory order should continue to apply and an alternative interview friend should be provided. This would be similar to the position in New Zealand.^[246]

18.107 The federal Attorney-General’s Department does not support an amendment of this nature to the Crimes Act.^[247] It identified a risk that young suspects will nominate as interview friends accomplices whom police do not suspect at the relevant time. In addition, the Department considers that ‘children are often not the best judge of who has their best interests at heart’. The interview friend must be an effective support for young suspects. Ensuring this outweighs any remote risk that a suspect may choose an unsuspected accomplice to perform the role.

18.108 DRP 3 proposed that, where an interview friend is a relative or friend of the young suspect who has not received training in the role, a senior police officer should be required to explain it to him or her prior to any interview. Several submissions considered that the impartiality of the interview friend may be compromised in the eyes of the suspect if this role is performed by police.^[248] A suggested alternative is for the child suspect and the interview friend to watch a short video outlining the role of the interview friend prior to questioning.^[249] The Inquiry supports this proposal. The video could also contain information about the child’s rights during questioning as proposed at recommendation 210. In police stations where video facilities are not available, the suspect and interview friend should be given a plain language information pamphlet instead. This material should be prepared by each police service in consultation with the relevant community organisations and OFC.^[250]

18.109 Independent community members who are registered as potential interview friends should be given regular training in their responsibilities.^[251] Again, this process should be sufficiently independent of the police.^[252] The legal aid commission in each jurisdiction should provide this training in consultation with police and relevant community groups.^[253] Where a child suspect has a disability that reduces his or her ability to communicate, an interview friend with specialised training or experience in the relevant field should be appointed.^[254] Specialised training should also be provided for registered interview friends supporting young Indigenous suspects.^[255]

Time limits on police interviews

18.110 The Crimes Act provides that people under eighteen years old must not be detained by police on suspicion of a federal offence for more than two hours before being released, on bail or otherwise, or brought before a magistrate.^[256] The invest-igation period can be extended once on application to a judicial officer for a period of up to eight hours if the young person is under arrest for a serious offence.^[257]

18.111 Some of the time that a child spends detained by police is not counted towards the two hour investigation period; for example, reasonable time spent travelling from the place of arrest to a police station or other place with appropriate investigative facilities is not included.^[258] For children in remote areas, this may entail a journey of several hours. The interview clock also stops if questioning is suspended or delayed because the suspect is intoxicated.^[259] This is known as ‘dead time’.

18.112 In most States and Territories legislation provides that young offenders must be brought before a court for a bail hearing as soon as practicable or within a specified or reasonable time.^[260] The specified period is generally 24 hours.^[261]

18.113 Few submissions were received on this matter.^[262] The Inquiry considers that the federal standard is reasonable and should be adopted nationally. Young suspects should not be worn down by exhaustion during police interrogation no matter how unintended this consequence is.

Questioning Indigenous children

18.114 There are significant cultural differences in the ways Indigenous and non-Indigenous Australians communicate in interview situations.^[263] These differences can have a significant effect on the results of police interviews of Indigenous young people, particularly those living in traditional communities. For example, silence is used as a positive and normal part of conversation by Indigenous people but can be interpreted by non-Indigenous police officers as a sign of non-co-operation or an indicator of guilt. Indigenous people often avoid eye contact when talking to an older person out of respect for that person. This custom can be misinterpreted by non-Indigenous people.^[264]

The special vulnerability of both young people and Indigenous people during police interrogation has been noted for many years. These vulnerabilities may be amplified when the person is both young and Indigenous.^[265]

18.115 In 1976 the Supreme Court of the Northern Territory formulated rules for police questioning of Indigenous people. The Anunga rules were designed ‘to remove or obviate some of the disadvantages from which Aboriginal people suffer in their dealings with police’.^[266] Importantly, the rules state that great care should be taken when formulating questions so that, so far as possible, the answer which is wanted or expected is not suggested in any way. This rule is intended to overcome problems associated with the phenomenon of ‘gratuitous concurrence’.

This is the tendency to say ‘Yes’ to any question (or ‘No’ to any negative question) regardless of whether or not the person agrees with the question or even understands it. It is a characteristic Aboriginal strategy for dealing with interviews, particularly in situations of serious power imbalance.^[267]

18.116 A number of the Anunga rules have been incorporated into the Crimes Act, for example, the suggestion that a support person be present during interview.^[268] If a parent, guardian, lawyer or friend is not available to act as an interview friend for an Indigenous child, the police must select someone from a list required to be maintained of names of people in the region who are suitable and willing to act as interview friends.^[269]

18.117 The lack of interpreters for Indigenous children involved in the criminal justice system was identified as a serious problem in consultations, particularly in remote areas where English may be the child’s third or fourth language.^[270] It is often difficult to find someone in the child’s community who has the necessary neutrality to act as the child’s interpreter. This is also an issue for young people who speak Aboriginal English.^[271] Section 23N of the Crimes Act gives federal suspects the right to an interpreter.^[272] However, unless there are sufficient people trained and accredited as interpreters of Indigenous languages this protection will have little benefit in practice for young suspects.^[273]

18.118 The Anunga rules have also been incorporated into police procedures in a number of States and Territories.^[274]Despite this, evidence from consultations suggests that many young Indigenous people do not understand their rights during police questioning.^[275] Indigenous children are particularly vulnerable when they are in police custody.^[276] Additional reforms are required to ensure equality for Indigenous children with their non-Indigenous counterparts during police questioning. These reforms should be lead by the States and Territories since their police have the most contact with Indigenous children. More Indigenous police and liaison officers are required as is comprehensive cross-cultural training for all officers to reduce arrest rates and improve interview techniques.^[277]

Questioning children from a non-English speaking background

18.119 Children from non-English speaking backgrounds may also be vulnerable during police interrogation.^[278] Recent migrants and refugee children who have experienced human rights abuses in their communities of origin may be particularly disturbed by contact with authority figures.

The most superficial contact with the system may reactivate memories of abuse and terror and they are particularly vulnerable to making false confessions. They will probably be less likely to lodge a formal complaint when their rights are violated or, indeed, have no clear idea of what their rights are.^[279]

18.120 Section 23N of the Crimes Act gives a person suspected of a federal offence the right to an interpreter during police questioning where an investigating official believes that he or she is unable to communicate orally with reasonable fluency in the English language, either because of language difficulties or a physical disability. Questioning must be deferred until the interpreter is present.^[280] In 1991 the federal Attorney-General’s Department suggested that the Commonwealth should encourage all States to adopt uniform legislation to this effect.^[281] Currently, there is a statutory right to an interpreter only in Victoria, South Australia and the ACT.^[282]

18.121 All young suspects should have a statutory right to an interpreter during police interview if they are not fluent in English. To ensure this protection is effective, police should be trained to recognise factors that contribute to the need for an interpreter. A child who seems reasonably fluent in conversation with his or her peers on the street may nonetheless require an interpreter during formal interrogation.

Questioning children with a disability

18.122 Children with a disability may require greater assistance than other young people when being questioned by police. For those young people who have a communication handicap as a result of a physical condition, such as deafness or cerebral palsy, this may mean assisted communication either through trained interpreters or appropriate technology.^[283] These children are usually relatively easy to identify. However, police officers may have greater difficulty identifying children with intellectual disabilities, mental illness or behavioural disabilities such as autism.^[284] Some children with a disability or illness may be taken by police to be merely ‘slow’ or affected by drugs or alcohol.

Disturbed and mentally ill adolescents often end up in the juvenile justice system because no one has been able to recognise or deal with their underlying problems.^[285]

18.123 In a recent report, People with an Intellectual Disability and the Criminal Justice System, the NSW Law Reform Commission recommended that all relevant government agencies should include training on intellectual disability issues in their staff training program, in particular material on identifying and communicating effectively with people with an intellectual disability.^[286] The Commission specifically noted the increased vulnerability of juveniles with an intellectual disability when in police custody.^[287] The Inquiry supports the NSW Law Reform Commission recommendation in regard to young suspects but considers it should be broadened to include training on identifying and communicating effectively with young people with behavioural disabilities and mental illnesses.

18.124 For children with an intellectual or behavioural disability or a mental illness it may be necessary to modify interrogation techniques considerably. The NSW Law Reform Commission recommended that when questioning people with an intellectual disability police should be required to take into account

(i) the need to attempt to pitch the language and concepts used at a level which will be understood

(ii) the need to take extra time in interviewing

(iii) the risk of the person’s special susceptibility to authority figures, including a tendency to give answers that the person believes are expected

(iv) the dangers of leading or repetitive questions

(v) the need to allow the person to tell the story in his or her own words

(vi) the person’s likely short attention span, poor memory and difficulties with details such as times, dates and numbers

(vii) the need to ask the person to explain back what was said

(viii) the possibility that the person may be taking medication which may affect his or her ability to answer questions.^[288]

The Inquiry supports this recommendation.

Taking identification material from children

18.125 In the investigation of a federal offence a police officer may only take identification material, including fingerprints and handwriting samples, from a suspect aged between 10 and 17 if the person has been charged or pursuant to a court order.^[289] Identification material can be taken from young people aged between 10 and 17 who are not suspects, such as witnesses, pursuant to a court order or if the child and his or her parent (or a person of the child’s choice who is capable of representing the child’s interests) consent in writing.^[290] Identification material can only be taken from a child under 10 years of age if he or she is not a suspect and on the order of a magistrate.^[291] A parent or person of the child’s choice capable of representing his or her interests must be present when identification material is taken from any child under 18 years of age, whether a suspect or not.^[292]

18.126 Provisions for taking identification material from children vary considerably among the States and Territories. In the ACT a court order must be obtained before identification material is taken from any child.^[293] In NSW, Victoria and the Northern Territory a court order is only required to take material from children under 14.^[294] In South Australia the permission of a commissioned officer is required if the child is under 16.^[295] In Tasmania there is no power to take identification material from a child prior to conviction.^[296] In Queensland a court order is required to take an identifying particular from any child charged with an offence.^[297] In Western Australia there are no specific legislative restrictions on taking identification material from children.

18.127 The federal Government has introduced legislation to reform the procedures for taking forensic samples from people suspected of federal offences. The Crimes Amendment (Forensic Procedures) Bill 1997 (Cth) distinguishes between non-intimate and intimate forensic procedures. Non-intimate forensic procedures are defined to include taking fingerprints, handprints, footprints or toeprints, taking samples from under nails and taking non-pubic hair samples.^[298] Intimate forensic procedures include taking blood samples, an external examination of the genital or anal areas, taking a sample of pubic hair or taking a dental impression.^[299]

18.128 The Bill provides that all forensic procedures carried out on suspects aged 10 to 17 must by conducted by order of a magistrate whether or not the child is in custody.^[300] This raises the level of external judicial scrutiny of forensic procedures carried out on children as a court order will be required even if the child has been charged with an offence. During the hearing for an order a child suspect must be present and represented by an interview friend. He or she may also have a legal practitioner present and may call or cross-examine any witnesses or address the judicial officer.^[301] If an application for an interim order is dealt with on the papers, the suspect must be given the opportunity to make a written submission.^[302]

18.129 The Inquiry supports these proposed reforms and considers that they should be incorporated into the national standards for juvenile justice.^[303] However, we consider that clause 23XN of the Bill should be modified. It provides that certain forensic procedures should be carried out by a person of the same sex as the suspect where practicable. The Inquiry agrees with Kreative Kids’ submission that forensic procedures should be conducted by a qualified person of the sex of the suspect’s choosing where possible to take account of situations where a suspect has been sexually assaulted by a person of the same sex in the past.^[304] 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.

Searching children

18.130 Police are empowered to conduct a frisk search of any person who is arrested for a federal offence to ascertain whether the person is carrying any seizable items.^[305] If an officer reasonably suspects that an arrested person is carrying evidential material in relation to an offence or a seizable item he or she can also conduct an ‘ordinary search’ of the person.^[306] In regard to frisk and ordinary searches, the same provisions apply to child federal offenders as to adult offenders. The Commissions consider this appropriate.

18.131 A person arrested for a federal offence may be strip searched only if a police officer reasonably suspects that he or she is concealing evidence, that a visual inspection of the person’s body will provide evidence or that the search is necessary to recover evidence. An officer of the rank of at least superintendent must authorise the search.^[307] A strip search may include requiring the person to remove all of his or her clothes and a visual examination of the person’s body but no search of the person’s body cavities is permitted.^[308] The search must be conducted in private by an officer of the same sex as the person being searched.^[309]

18.132 Additional restrictions apply to the strip searching of young people. A child under 10 years of age may not be strip searched during the investigation of a federal offence.^[310] A young person aged between 10 and 17 can be strip searched only if he or she has been charged or if the search is ordered by a magistrate. A parent or another person of the child’s choice who is capable of representing the child’s interests must be present during the strip search.^[311]

18.133 There are fewer legislative limitations on strip searching child suspects in most States and Territories. For example, in South Australia any person who has been charged with an offence can be searched by a medical practitioner at the request of a senior officer.^[312] In the Northern Territory a police officer can search a person who has been charged with an offence although no more clothing than reasonably necessary may be removed.^[313] Under Victorian law a physical examination of the body is defined as a forensic procedure.^[314] Forensic procedures can only be carried out on those aged between 10 and 17 by order of the Children’s Court.^[315]

18.134 Evidence given by young people at focus groups suggests that sometimes police do not conduct strip searches in an appropriate manner. One boy said he had been strip searched on a main street at 10 pm one night. No attempt was made to conduct the search in a private place.^[316] We heard of one girl who, after being detained for an alleged motor vehicle offence, was strip searched in a cell with other juveniles present, some of them boys. The search was conducted by a male officer.^[317] These concerns have been raised in a number of other inquiries.

We have come across a number of cases where searches have been conducted without recourse to the protections accorded by regulations. Particular concerns have been expressed about public searches of young people on the street, sometimes involving the full removal of clothing or more than a pat down or frisk.^[318]

18.135 Evidence given to the ALRC’s inquiry into complaints against the AFP and the National Crime Authority confirms that AFP officers frequently fail to comply with the requirements of the Crimes Act when strip searching people, especially women.^[319] Unnecessary or illegally conducted strip searches has been identified as a particular problem for Indigenous girls.^[320]

18.136 A strip search is an invasive procedure that is potentially traumatic for an adult, let alone a child who may already be intimidated by the physical environ-ment. These searches should only be conducted when absolutely necessary for evidentiary purposes and not as an exercise in humiliation. The Commissions consider that strip searches should only be performed on young suspects pursuant to a court order.^[321]

Detaining intoxicated child suspects

18.137 In Western Australia and the Northern Territory police have statutory power to detain intoxicated people, including juveniles, in police custody even if they have not been charged with an offence.^[322] The National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families received evidence that on one particular occasion over 50% of the juveniles detained in police cells in the Kimberley region were there because of alcohol use.^[323]

18.138 Young people should not be detained in police cells solely because they are intoxicated by alcohol or other drugs.^[324] These children need to be monitored medically and to ensure they do not harm themselves. This should not a police function. Attending to their health needs must have absolute priority over any criminal action. Each police service should liaise with the relevant health authorities to find suitable alternatives to police cells in each region where appropriate places are not already proclaimed or gazetted. State and Territory governments should take immediate responsibility for establishing facilities in regions where they do not exist.

Police accountability

18.139 Limitations on police conduct during formal interviews are effective only if police are accountable for their treatment of young people before and after the interview through an effective complaints mechanism.

18.140 A number of young people in focus groups alleged that they had been threatened or assaulted by police while being arrested or while in custody.^[325] Generally little or no independent evidence concerning police conduct is available for the period before the arrival of the interview friend. Admissions made outside the formal interview, for example during preliminary enquiries, are usually not admissible in court. However, coercive or intimidatory tactics at an earlier time are likely to have a significant effect on the child’s state of mind when the interview takes place or if the child later appears in court.^[326]

18.141 Many young people are aware of avenues for complaints about police conduct. However, young people consistently stated that they had no expectation that their complaints would result in appropriate outcomes. Indeed, they thought complaining was likely to result in adverse police attention in future.^[327]

Young people and youth advocates point to a general lack of knowledge among young people about the procedure for making complaints about police [and] a lack of trust in the process…^[328]

18.142 The ALRC report on complaints against the AFP and the National Crime Authority recommended that a National Integrity and Investigations Commission be established to investigate or supervise the investigation of complaints against both bodies.^[329] The Inquiry endorses this recommendation and considers that the National Integrity and Investigations Commission should include investigatory officers with specialised training in dealing with complaints made by young people. Similar expert officers should also be included in each State and Territory police complaints system.^[330]

18.143 The AFP and all State and Territory police should be required to lodge copies of complaints made by young people with the appropriate complaints handling body.^[331] These bodies are discussed in more detail at paragraphs 7.33-43. The national standards for juvenile justice should include specific guidelines for the handling of complaints against police by children. In particular, they should include standards regarding time limits for hearing complaints and the desirability of dealing personally, rather than in writing, with the child. The guidelines should incorporate the principles enumerated in recommendation 13.

18.144 Official visitor schemes established in police stations in a number of jurisdictions seem to be an effective supplementary means of improving police accountability for the treatment of juvenile suspects.^[332] Under these schemes, community volunteers visit police stations unannounced to monitor police practices and to give young people an opportunity to make complaints to an independent third party. Official visitors schemes should be introduced nationally.^[333]

18.145 The Aboriginal Legal Service of Western Australia has submitted that complaints made by Aboriginal young people should be investigated by Aboriginal officers wherever possible.^[334] The Inquiry supports this proposal in principle provided it does not lead to Indigenous police officers being limited to a complaints handling function.

18.146 For many breaches of procedural requirements, the courts may provide an accountability mechanism. Judicial officers have a discretion to exclude evidence that has been improperly or illegally obtained.^[335] DRP 3 proposed that failure to comply with the national standards for juvenile justice should be the basis for the exercise of a discretion by judicial officers to exclude evidence. Some government and police submissions considered this reform unnecessary in the light of current evidence laws.^[336] However, as one submission pointed out, the current law regarding the exclusion of improperly or illegally obtained evidence does not distinguish between children and adults.

In balancing considerations of justice and public policy, the obligation for police compliance with procedural standards should be stronger where suspects are children.^[337]

The Inquiry considers that the training for judicial officers hearing juvenile justice matters proposed at recommendation 236 should include information on excluding improperly obtained evidence in juvenile matters. Specifically, judicial officers should be advised that failure to comply with the national standards for juvenile justice is prima facie evidence of impropriety.^[338] 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.^[339]