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"On many occasions I have expressed concern about the level of misinformation on matters relevant to juvenile justice. This misinformation has encouraged inappropriate policy responses by State and Territory governments to the treatment of young offenders. For example, public perceptions are that youth crime is increasing. However, the facts do not support this perception. Research indicates that the levels of all juvenile court appearances and formal diversions have remained stable over the last 15 years (Cunneen & White 1995, Juvenile Justice: An Australian Perspective, Oxford University Press, Melbourne). Similarly, available statistics provide no support for the view that the level of youth violence is increasing (NSW Parliamentary Committee on Social Issues, 1995, Report on Youth Violence).
Police Powers
Young people, because of their inexperience and powerlessness, are seriously disadvantaged when dealing with police. However, in the 1992 report Perceptions of the treatment of juveniles in the legal system, the National Clearinghouse on Youth Studies found that:
• 40 per cent of the young people interviewed had been hit by police;
• 55 per cent claimed they had been pushed around; and
• 70 per cent reported they had been yelled at.
Similar results came out of the 1993 reports by the Queensland Youth Advocacy Centre and the Australian Youth Foundation.
A disturbing example of this was cited at a public hearing in Rockhampton, Queensland last year. It concerned the practice of police approaching young people congregating in public places and demanding their names, addresses and other information. I was told of a police officer who estimated that he stopped and questioned around 200 young people over a period of several nights (National Inquiry into Children and the Legal Process by the Human Rights and Equal Opportunity Commission and the Australian Law reform Commission - public hearing, Rockhampton Queensland, 1 August 1996). This highlights the heavy handed approach which often characterises police treatment of young people.
In New South Wales much attention has been focused on the issue of police powers. The NSW Premier has made a number of statements which give cause for concern about the NSW Government's approach to these issues. The NSW Premier stated that he is prepared to compromise young people's privacy to 'make the streets safer'. He has also referenced an 'upsurge of youth gang violence' in New South Wales, as sufficient justification for a 'strong legislative response'. There is little evidence to support this claim.
Sentencing of Young Offenders
In the area of sentencing, there has been a disturbing tendency on the part of State and Territory governments in recent years to resort to increasingly punitive measures for dealing with young offenders. These measures conflict with the relevant international treaty provisions for the protection of the civil rights of young people. Not only do they breach the promises our governments made to our children, but they are ineffective. Studies have proven that harsh and punitive sentencing practices do nothing to reduce the level of juvenile offending and so do nothing to promote community safety. Consider the following examples in some Australian states:
Western Australia
In the past decade under the Lawrence Labor Government and the Court Coalition Government, Western Australia has moved to a more punitive juvenile sentencing regime through the enactment of legislation such as the Crimes (Serious and Repeat Offenders) Sentencing Act 1992 and the Young Offenders Act 1994. These Acts contain special provisions relating to repeat offenders. The 1992 Act allowed for a further period of detention additional to the sentence imposed by the court in relation to the offence committed. The 1994 Act defines 'repeat offenders' as persons who have served at least two previous periods of detention and where there is a likelihood of re-offending within a short period of release from detention. The Act allows the imposition of a special order for an additional 18 months in detention for these young people.
In 1996 the WA Parliament passed legislation to provide for mandatory detention for at least 12 months for young people found guilty of more than three burglary offences (the 'three strikes and you're in' legislation).
Mandatory sentencing laws clearly breach the provisions in the ICCPR and the Convention on the Rights of the Child protecting the civil rights of young people.
Northern Territory
In 1996 the Northern Territory Parliament followed the lead of WA and went one step further. It passed legislation to provide for mandatory imprisonment of young people found guilty of more than one property offence. These provisions apply regardless of how minor the offence.
In a statement to the NT legislative Assembly while introducing the legislation, the NT Attorney-General expressed the abhorrent and unlawful view that young people who offend against the law have no rights at all. Punishment and deterrence have a legitimate place in the criminal justice system when applied in a responsible and appropriate manner which is proportionate to the offence in question. However, they cannot justify the denial of basic rights.
Queensland
In 1996 the Queensland parliament passed amendments to juvenile legislation which allow for significant increases in the sentences which can be imposed on young offenders, including life sentences for more serious offences. They also give police powers to fingerprint children in circumstances where they have not been formally arrested, in respect to an extremely wide range of offences. The legislation treats children as harshly or even more harshly than it treats adults. It denies them the particular attention their status as minors warrants. Even the process of diversion has been tainted. Under the amendments, official cautions will form part of children's criminal records, stigmatising them for the rest of their lives even though they have not been convicted of a crime. This is totally unacceptable. ...
Indigenous Young People
Indigenous young people experience violations of their civil rights in the criminal justice system to a far greater degree than the general youth population. These young people are over-represented at all stages of the juvenile justice system. This over-representation begins with disproportionate police intervention. There may be many factors which contribute to this attention and intervention. Studies suggest that police exercise their discretion at every point in the system in a manner that disadvantages Indigenous children relative to non-Indigenous children and increases the likelihood of their further involvement with the juvenile justice system. At the last stage of the process, Indigenous youth are massively over-represented in detention.
There are a number of ways in which juvenile justice systems discriminate against Indigenous young people, for example:
• young Indigenous people being unnecessarily or vexatiously subjected to trivial or multiple charges, causing them to accumulate a serious criminal record at an early age and making them more liable to detention under mandatory detention laws in Western Australia and the Northern Territory;
• there is a greater likelihood of bail being refused;
• harsh bail conditions that are difficult to meet, increasing the likelihood of detention pending trial; and
• a lack of adequate legal representation.
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