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TERRY HUTCHINSON[*]
The Queensland criminal justice system has come under the international spotlight in relation to its policy on the treatment of 17-year-old offenders. In Queensland, offenders of this age are treated as adults. Queensland is now the only state or territory in Australia where this occurs.
The United Nations Committee on the Rights of the Child (‘UNCRC’) has voiced specific concerns in relation to this aberration, recently recommending that all ‘necessary measures’ be taken
to ensure that persons under 18 who are in conflict with the law are only deprived of liberty as a last resort and detained separately from adults unless it is considered in the child’s best interest not to do so.[1]
In relation to Queensland, the UNCRC specifically recommended ‘children who are 17 years old’ are removed from ‘the adult justice system’.[2]
Queensland is totally ‘out of step’ with national and international standards, and yes, it does matter.[3] This article examines the background to this anomalous situation. It recounts how the Juvenile Justice Act 1992 (Qld) (‘JJA’) breaches international human rights standards, and it analyses some of the effects of breaches of these standards on 17-year-olds caught in the criminal justice system.
The JJA and the Children’s Court Act 1992 (Qld) came into effect on 1 September 1993. Prior to this, the prevailing legislation was the Children’s Services Act 1965 (Qld). The definition of a child in the previous legislation was ‘a person under or apparently under the age of 17 years’.[4] There were several amendments to the JJA in 1996, 1997 and 1998, with substantial changes made in 2002. However, in the 14 years since the new legislation was passed amendments to the age criteria provisions have never been proclaimed into force.
By operation of s 6 of the JJA, and a schedule definition of a child as ‘a person who has not turned 17 years’, the legislation only deals with children who are aged between 10 and 16 years. Children under 10 years are not held criminally responsible and there is a presumption against criminal responsibility for children aged between 10 and 14.[5] Once a young person turns 17, they become an adult in the eyes of the criminal law and are treated as such in the criminal justice system. All that is required to change this position is for a regulation to be made under s 6(1), to the effect that, from the date fixed by the regulation, a person’s status remains that of a child until they turn 18.
When the bill was being debated in the Legislative Assembly, the National Party opposition spoke against the idea of 17-year-olds being placed in juvenile detention centres.[6] Perhaps that is one reason that the door at that stage was left ajar rather than opened to an immediate change. From the time the provision was introduced, the government acknowledged the administrative and resource challenges, the Minister stating ‘[t]he Government recognises the magnitude of the task in establishing the necessary infrastructure to implement this legislation as it applies to children using current definitions of age.’[7]
The Queensland Department of Corrective Services Annual Report 2004–2005 shows that there were thirty 17-year-olds in detention facilities in June 2005 — 29 males and one female.[8]
The statistics for June 2004 show only eight 17-year-olds in the prison system in Queensland — seven males and one female. Of these, three were indigenous.[9] Looking at the figures over the last few years, this smaller figure would seem to be an aberration.
The cost per prisoner per day in an adult correction centre in 2002–03 was estimated to be $187.26 if held in secure custody, $145.16 in open custody, and $165.34 in community custody.[10] The Report on Government Services 2005 indicated that in 2003–04 the cost in Queensland had fallen to $139 per prisoner per day for adult open and secure prisons combined.[11] The Australian average was $162.[12] While the cost of maintaining a juvenile in detention is more expensive than that for an adult prisoner, any difference in cost terms cannot be truly significant when judged against the negative social and health factors associated with juveniles being held in adult prisons.
The Australian Law Reform Commission in 1997 considered the issue of the age at which a person should be regarded as an adult for the purposes of the criminal law, and recommended that ‘[t]he age … should be 18 years in all Australian jurisdictions’.[13] This recommendation has led non-complying states and territories to change their legislation, so that commonsense prevails and children of 17 years — who in other contexts are not allowed to drink, or vote — do not end up serving time in adult prisons. In Tasmania, the Youth Justice Act 1997 was enacted on 14 January 1998. The Northern Territory’s Sentencing of Juveniles (Miscellaneous Provisions) Act 2000 commenced on 1 June 2000. Finally, Victoria passed the Children and Young Persons (Age Jurisdiction) Act 2004, which came into effect on 1 July 2005. Legislative change in Queensland appears to have stalled.
The Incorrections Report, an independent report investigating prison release policy in Queensland, released in November 2004, recommended that the definition of ‘child’ under the JJA be changed so that no child under 18 years of age would be accommodated in a Queensland prison.[14] The Department of Corrective Services, in its response to this report recommendation, noted that the issue was under review but that:
Offenders aged 17 are only sent to adult custody if ordered by the court.
The State Government is currently reviewing the sentencing of 17-year-olds with consideration of deeming them children … All 17-year-old male prisoners in South-East Queensland are accommodated in the Youth Offenders Unit at Arthur Gorrie Correctional Centre where they are kept segregated from other prisoners … The Department’s Director of Child Safety is responsible for monitoring the accommodation on 17 year olds. [15]
However, Tamara Walsh, in her follow-up to the initial report, noted that the government’s assurance that
17 year olds are accommodated in units separate from other prisoners does not address the concerns raised in the Incorrections Report. Their safety once they are released into ‘mainstream’ prison cannot be assured.[16]
There are at least three international conventions that are relevant to juvenile justice and to which Australia is a signatory. These are the United Nations Convention on the Rights of the Child (‘CROC’),[17] the International Covenant on Civil and Political Rights (‘ICCPR’)[18] and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’).[19] None of these international instruments have been directly incorporated into law in Australia. Under the First Protocol to the ICCPR, to which Australia is a signatory, individuals have the right to complain to the United Nations Human Rights Committee. A similar avenue of accountability is not available under the CROC, although the Commonwealth government has ratified this treaty. Thus these international conventions are certainly relevant in this situation.[20]
Schedule 1 of the JJA sets out a ‘Charter of Juvenile Justice Principles’, incorporating principles consistent with international instruments such as the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.[21] However, it has been argued that these principles ‘did not include all the basic rights of young people in detention expressed in the United Nations’ Rules’ and that the absence of enforcement provisions meant there was ‘no obligation on people responsible for administration of the Act to abide by the Charter of Juvenile Justice Principles’.[22] The Charter principles address issues such as the vulnerability and accountability of children, diversion, fair and participatory proceedings, sentencing, the ‘last resort’ principle, and victim impact. The inclusion of the Charter followed a recommendation of the Report of the Commission of Inquiry into Child Abuse in Queensland Institutions.[23] Clause 17 of the Charter states that the child should be detained in custody for an offence, whether on arrest or sentence, ‘only as a last resort and for the least time that is justified in the circumstances’. The Charter echoes the CROC, especially arts 3 and 37. Article 3 provides that
[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative bodies or legislative bodies, the best interests of the child shall be a primary consideration.
Article 37 provides that
[n]o child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time’.
However, art 1 of the CROC defines a child to be ‘every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier.’ If art 3 is read with art 1, it could be argued that the Queensland Parliament should make sure that the best interests of the child are a primary consideration in legislation affecting children. Arguably, in defining ‘child’ to exclude 17-year-olds, the JJA is not consistent with this overriding obligation, so that the Queensland Parliament would appear to be acting in contravention of these overriding international principles.
The CROC requires that all State parties submit regular reports to the UNCRC describing how the rights provided for under the convention are being implemented. Initially, States must report two years after acceding to the CROC and then every five years thereafter. The UNCRC examines each report and addresses its concerns and recommendations to the State party in the form of ‘concluding observations’.
UNCRC’s Concluding Observations on Australia’s Combined Second and Third Periodic Reports noted that some recommendations made after consideration of Australia’s First Report had still not been sufficiently addressed, including:
the special problems faced by indigenous children, corporal punishment, homelessness among young people, children in immigration detention, juvenile justice and the disproportionately high percentage of indigenous children in the juveniles justice system.[24]
Furthermore, UNCRC expressed concern that in ‘Queensland children aged 17 in conflict with the law may be tried as adults in particular cases’[25]
UNCRC recommended that:
the State party bring the system of juvenile justice fully into line with the Convention, in particular articles 37, 40, and 39 with other United Nations Standards in the field of juvenile justice, including the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty and the Vienna Guidelines for Action on Children in the Criminal Justice System, and with the Recommendations of the Committee made at its day of general discussion on juvenile justice.[26]
The UNCRC suggested that the State party:
Remove children who are 17 years old from the adult justice system in Queensland … [and] … Take all necessary measures to ensure that persons under 18 who are in conflict with the law are only deprived of liberty as a last resort and detained separately from adults unless it is considered in the child’s best interest not to do so.[27]
In effect, the UNCRC has singled out the situation in Queensland for special mention. The history of the discussion of this issue at the international level has been quite tortuous. Despite specific requests from the UNCRC, no good statistics have as yet been made publicly available on this issue and there are no budgeted plans made public to change the status quo despite international pressure to do so.
The power to order juveniles to serve their sentences in adult detention centres varies somewhat between the states. There is provision in several states for this to occur despite the legislation ostensibly protecting the principle of childhood ending at 18.[28]
Whether a person falls within the juvenile or adult justice system has ramifications more complex than the place of detention. Different legislation and sentencing principles apply to adult and juvenile offenders; there are different sentencing outcomes. More lenient treatment is possible for children even from the pre-arrest stage.
Courts sentencing children for offences must do so under the JJA.[29] Section 4(c) of the Act states that detention is to be used as a last resort. As discussed above, the principles underlying the operation of the JJA are set out in the Charter of Juvenile Justice Principles in Schedule 1. There are other matters set out in s 150 to which the courts must adhere in sentencing: juvenile justice principles, the nature and seriousness of the offence, previous history, pre-sentence reports, and any impact on victims. There are provisions for submissions from the community if the child is an Aboriginal or Torres Strait Islander person. There are also ‘special’ considerations set out in s 150:
(a) a child’s age is a mitigating factor in determining whether or not to impose a penalty, and the nature of a penalty imposed;
(b) a non-custodial order is better than detention in promoting a child’s ability to reintegrate into the community;
(c) the rehabilitation of a child found guilty of an offence is greatly assisted by
(i) the child’s family; and
(ii) opportunities to engage in educational programs and employment;
(d) a child who has no apparent family support,
or opportunities to engage in educational programs and employment, should not receive a more
severe sentence because of the lack of support
or opportunity;
(e) a detention order should be imposed only as a last resort and for the shortest appropriate period.
There are diversionary options available to children prior to arrest too. Under the JJA, the police are required to consider alternatives including to take no action; to administer a caution to the child; to refer the offence to a conference; or, if the offence is a minor drugs offence, to offer the child an opportunity to attend a drug diversion assessment program.
There is also provision for a child to be referred to a Youth Justice Conference, which offers a less punitive approach than traditional court processes. There are three ways that a matter can be referred to a conference:
• referrals can be made by a police officer, and in this way the young person is diverted from the court process (police referrals);
• a court has the power to refer a matter to conference as an alternative to sentencing (indefinite court referrals); and
• a court can also decide to refer a matter to a conference prior to sentencing to assist them in reaching an appropriate sentence order (pre-sentence referrals).
A matter can only be referred to a conference if
the young person either admits to or is found guilty
of the offence.
Penalties for serious offences are set out in s 176 (2) of the JJA. The maximum period for which a child can be ordered to serve a sentence in a juvenile detention centre is one year for most offences, up to 10 years for serious offences, and up to life for particularly heinous offences. The minimum age for custody in a detention centre is 15 years, with a maximum of 18 years.[30] The sentencing options under Part 7 of the JAA include a reprimand, a good behaviour order, fines, probation, community service orders, intensive supervision orders, conditional release orders, detention and publication orders.
In comparison, adults are sentenced under the Penalties and Sentences Act 1992 (Qld). The sentencing options are generally more onerous, including non-contact orders, fines, fine option orders including community service in lieu of payment, probation, community service orders, intensive correction orders, disqualification of driving licences, orders of suspended imprisonment, imprisonment, indefinite detention, classification as a serious violent offender Part 9A, and orders for restitution and compensation of victims.
Convictions against children cannot be recorded except where the penalty imposed is a fine, community-based order or detention. In these cases, the recording of a conviction is discretionary. Findings of guilt, however, form part of a child’s criminal history and will be considered in subsequent court proceedings. [31]
Section 12 of the JJA requires that police, when dealing with children, start the proceeding by way of complaint and summons or notice to appear, rather than arrest, wherever appropriate. This is in contrast to the wider powers available to the police for arrest of adults under the Police Powers and Responsibilities Act 2000 (Qld).
The Bail Act 1980 (Qld) applies to both children and adults, but s 48 sets out specific provisions favouring children. When a child goes to trial, there are provisions ensuring the presence of the child’s parents and allowing an adjournment if the parents are not there.[32] Other provisions aim to ensure the child charged with an offence understands the proceedings and has legal representation for an indictable offence.
These substantive differences between the treatment of children and adults in the criminal justice system in Queensland make starkly apparent the consequences of defining 17-year-old children as adults.
Despite the cost implications and possible political unpopularity of ‘soft’ approaches to sentencing, the categorisation of 17-year-olds as ‘children’ under the JJA must be changed. The JJA is out of alignment with other related Queensland legislation. For example, the Child Protection Act 1999 (Qld) defines a child as a person under 18. To maintain a difference between this Act and the JJA is clearly ‘discriminatory and illogical’.[33]
The procedural disadvantages for 17-year-olds categorised as adults are serious. Trials in higher adult courts can be conducted at a ‘level of formality and technicality’ that renders them unsuitable for children.[34] As Gail Hubble has argued ‘the intellectual and emotional maturity of children will rarely be adequate to comprehend and participate in a trial in a higher court’.[35]
Specific qualitative evidence, in a Queensland context, highlights the negative affects of treating children as adults. The Sisters Inside submission on the Juvenile Justice Amendment Bill 2001 (Qld) provided examples of inappropriate situations arising from this approach, including the ramifications for young female prisoners, many of them victims of sexual abuse, who were subjected to strip searches on a mandatory basis in adult prisons.[36] The Youth Affairs Network Queensland has also provided a number of case studies of the deleterious consequences of this approach. One example describes the detention of a physically immature boy in an adult facility, with all the inherent danger of such a situation. Another case study quotes a family member of a child incarcerated in an adult prison: ‘one day we are signing permission slips for school excursions, the next we are visiting our son and brother in an adult prison.’[37] Chris Puplick has recounted a more serious example, from New South Wales, where a juvenile prisoner who had requested protective custody was placed in a cell with a prisoner suffering from acute schizophrenia. Within fifteen minutes the youth had been kicked to death.[38]
The extent and nature of the personal and societal damage that results from a policy of categorising 17-year-olds as adults in the criminal justice system is considerable — and largely undocumented. Queensland’s approach means that Australia is not complying with its international obligations. It is imperative that this issue be brought to the top of the policy agenda. The Queensland government should be encouraged to change its stance on the issue. Reform and change is warranted now.
[*] TERRY HUTCHINSON teaches law at Queensland University of Technology. Nicola Matthews was the research assistant.
© Terry Hutchinson
email: t.hutchinson@qut.edu.au
[1] UNCRC, Consideration of Reports submitted by States Parties under Article 44 of the Convention – Concluding Observations: Australia, 40th sess, UN Doc CRC/C/15/Add.268 (20 October 2005) [74] <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.15.Add.268.En?OpenDocument> at 13 May 2007.
[2] Ibid.
[3] Simon Cleary ‘UN Criticises Qld Criminal Justice’ (2006) 26(1) Proctor 12.
[4] Children’s Services Act 1965 (Qld) s 8, repealed by Child Protection Act 1999 (Qld).
[5] Criminal Code (Qld) s 29.
[6] Queensland, Parliamentary Debates, Legislative Assembly, 4 August 1992, 6053–6055, 6072.
[7] Queensland, Parliamentary Debates, Legislative Assembly, 5 August 1992, 6131 (Anne Warner, Minister for Family Affairs and Aboriginal and Islander Affairs).
[8] Department of Corrective Services, Annual Report 2004–05 45 <http://www.dcs.qld.gov.au/Publications/Corporate_Publications/Annual_Reports/annual04-05/KeyStatistics.shtml> at 15 May 2007.
[9] Department of Corrective Services, Annual Report 2003-04, Key Performance Statistics Table 3. <http://www.dcs.qld.gov.au/Publications/Corporate_Publications/Annual_Reports/annual03-04/KeyStatistics3.shtml> at 15 May 2007.
[10] Queensland Government, Ministerial Portfolio Statements: 2002–03 State Budget (Department of Corrective Services) 3–6 <http://www.dcs.qld.gov.au/Publications/Corporate_Publications/Budget_ Documents/02-03/mps2002-03d.pdf> at 15 May 2007.
[11] Steering Committee for the Review of Government Service Provision, Report on Government Services 2005, Productivity Commission [7]27 <http://www.pc.gov.au/gsp/reports/rogs/2005/chapter07.pdf> at 15 May 2007.
[12] Ibid.
[13] Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997) [18.22] <http://www/austlii.edu.au/au/other/alrc/publications/reports/84/ALRC84.html> at 15 May 2007.
[14] Tamara Walsh, Incorrections: Investigating prison release practice and policy in Queensland and its impact on community safety, November 2004 (Recommendation 6) 131 <http://www.sistersinside.com.au/media/IncorrectionsReport.doc> at 15 May 2007.
[15] Queensland Government, Response to the INCorrections Report, Department of Corrective Services, September 2005, 6 <
http://www.dcs.qld.gov.au/Publications/Corporate_Publications/Miscellaneous_Documents/INCorrect%20backgrounder%20final_v2_2NET.pdf#search=%22incorrections%22> at 15 May 2007.
[16] Dr Tamara Walsh, Incorrections II: Correcting Government, TC Beirne School of Law, University of Queensland, (2005) [7] <http://www.sistersinside.com.au/media/IncorrectionsII.doc> at 15 May 2007.
[17] Convention on the Rights of the Child, opened for signature 20 November 1989, 1588 UNTS 530 (entered into force 2 September 1990).
[18] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[19] United Nations Standard Minimum Rules for the Administration of Juvenile Justice, General Assembly Resolution 40/33 of 29 November 1985.
[20] John Tobin ‘Finding rights in the “wrongs” of our law: bringing international law home’ [2005] AltLawJl 52; (2005) 30 (4) Alternative Law Journal 164.
[21] United Nations Rules for the Protection of Juveniles Deprived of their Liberty, General Assembly Resolution 45/113 of 14 December 1990.
[22] Queensland Commission for Children and Young People and the Child Guardian, Submission on Juvenile Justice Amendment Bill 2001 (undated) 3 <http://www.ccypcg.qld.gov.au/pdf/submissions/juvenile_justice_submission.pdf> at 15 May 2007.
[23] Commission of Inquiry, Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions (1999) <http://www.families.qld.gov.au/department/forde/publications/documents/pdf/forde_comminquiry.pdf> at 15 May 2007.
[24] UNCRC, Consideration of Reports submitted by States Parties under Article 44 of the Convention – Concluding Observations: Australia, 40th sess, UN Doc CRC/C/15/Add.268 (20 October 2005) [5] <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/SRC.C.15.Add.268.EN?OpenDocument> at 13 May 2007.
[25] Ibid [73].
[26] Ibid [74].
[27] UNCRC, Consideration of Reports submitted by States Parties under Article 44 of the Convention – Concluding Observations: Australia, 40th sess, UN Doc CRC/C/15/Add.268 (20 October 2005) [74] <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.15.Add.268.EN?OpenDocument> at 13 May 2007.
[28] Based on Australian Institute of Criminology, ‘Young People and Crime’ <http://www.aic.gov.au/research/jjustice/sentencing/principles.html> at 15 May 2007.
[29] JJA s 149.
[30] JJA ss 53, 120–121.
[31] JJA ss 154, 183.
[32] JJA s 69.
[33] Paul Spooner ‘Let’s be Adult about being Juvenile’, Defence for Children International (Australia) <http://www.dci-au.org/html/juvenile.html> .
[34] Gail Hubble ‘Juvenile defendants: taking the human rights of children seriously’ [2000] AltLawJl 44; (2000) 25 (3) Alternative Law Journal 116, 120.
[35] Ibid.
[36] Sisters Inside, Age Does Matter (July 2001) <http://www.sistersinside.com.au/media/juvenilejustice.pdf> at 15 May 2007. See also Debbie Kilroy, ‘When will you See the Real Us? Women in Prison’ (Paper presented at the Women in Corrections: Staff and Clients Conference, Adelaide, 31 October–1 November 2000) <http://www.sistersinside.com.au/media/whenwillyouseetherealus.pdf> at 15 May 2007.
[37] Legal Aid Queensland, Logan Youth Legal Service, Youth Advocacy Centre and Youth Affairs Network of Queensland, Including Seventeen Year Olds in the Juvenile Justice System (November 2004) 16 <http://yanq.org.au/index.pl?page=getdoc & Ink_id=268 & doc_id=143> at 2 September 2006.
[38] Chris Puplick ‘Mad, Bad and Dangerous to Know’ (Paper presented at Sisters Inside Queensland Alliance Conference Lock “Them” Up? Disability and Mental Illness Aren’t Crimes, Brisbane, 18 May 2006) 2 <http://www.sistersinside.com.au/media/PaperChrisPuplick.doc> at 15 May 2007.
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