Queensland University of Technology Law and Justice Journal
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Queensland University of Technology Law and Justice Journal |
|
JOHN BOERSIG[*]
The admissibility of information or statements made by defendants in criminal
proceedings in New South Wales is governed largely by
the Evidence Act 1995
(NSW) (and its equivalent Commonwealth legislation, the Evidence Act
1995 (Cth)). In relation to children, however, special provision has
been made by the NSW Parliament in the Children (Criminal Proceedings)
Act 1987 (NSW) to govern the admissibility in court of evidence by
children charged with criminal offences. The legislation provides guidance
to
police, to legal practitioners and to the courts by laying down a set of
principles, as well as making specific provision for
the practices and
procedures by which children are dealt with by the judicial system. The
legislation is both instructive and directive.
It is well accepted that
children are at considerable disadvantage during an interview with police, and
that there is a real risk
that they may make untrue
admissions.[1] The pressures upon
children, which may lead to self-incrimination, or induce a breach of the
foundation principle of the ‘right
to silence’, are tacit in the
power imbalance at a police station. It has been suggested that these pressures
are intrinsic
in the detention of a child by police, and accordingly national
standards should be established.[2]
In NSW the legislature’s response to these types of issues can be found in
s 13 of the Children (Criminal Proceedings) Act 1987 (NSW) (the
Act).
Section 13 of the Act sets out criteria for the admissibility of
any ‘statements, confessions, admissions or information’
provided by
a child to a member of the police force who ‘is a party to criminal
proceedings’. Evidence of what the child
said to the police will not be
admitted in judicial proceedings, subject to certain provisions, unless a
‘person responsible
for the child’ was present at the time the child
spoke to the police.
It follows that the duty of a ‘person
responsible’ will be significant. Is this person a mute observer, simply
in attendance
to ensure nothing untoward occurs? Or should the duty be more
pro-active, ensuring the child’s rights are recognised and acted
upon? In
either situation the action, or inaction, of the ‘person
responsible’ will have implications for the child.
The Act
however, is silent about the role of ‘a person responsible for the
child’, and it has fallen to the courts to
provide a definition of the
nature and extent of the duty. This paper will consider the interpretation by
the NSW Supreme Court of
the duty of ‘a person responsible’, under s
13 of the Act.
The case law in NSW, at least at first instance, seems to
suggest that the courts have accepted that there is a limited duty upon
‘a
person responsible’ to look after the interests of a child when
interviewed by the police. There is an expectation
that the person will be
independent from the police. However, there is a divergence of views within the
Court as to the implication
of ‘independence’, and significant
questions remain regarding the duty of a ‘person responsible’ for a
child.
These questions turn on the construction of the Act: does a legalistic
interpretation of the Act give full consideration to the spirit
of the
legislation; is the interpretation by the Courts consistent with current
benchmark international standards; are the Courts
giving cognizance to the
notion of ‘children’s rights’ in the construction of the
Act?
The introduction of the Children (Criminal Proceedings) Act
in 1987 follows a history of special legislation aimed at managing the
relationship between children and the
courts.[3] The traditional view of
children being in need of ‘protection’ has its expression in the
legislative history within
NSW, and early legislation linked the imposition of
criminal sanctions to the provision of care and correction. Courts were expected
to adopt a parens patriae attitude to
children.[4] This attitude is evident
in the Child Welfare Act 1923, which was reconsidered and developed in
1939.
The Children (Criminal Proceedings) Act 1987 emerged in a
dialogue about ‘due process’ and children’s
rights.[5] Moreover, Australia was
feeling and responding to wider concerns raised at international level.
International instruments such as
the Convention on the Rights of the
Child, set out principles and benchmark standards, of which children’s
rights are a significant part of this agenda. Furthermore,
an interpretation of
domestic legislation must have regard to international
standards.[6] It is true, however,
that the introduction of the 1987 Act moved the courts in a direction which
explicitly endeavoured to protect
the interests of children by in a sense,
codifying the principles upon which children would be involved judicial
proceedings. This
must have important ramifications for the interpretation of
the Act.
The first step by the legislature intended to protect the admissibility of
children’s evidence in judicial proceedings came
in an amendment, in 1977,
to the Child Welfare Act 1939.
Section 81C provided that
anything said by a child to a police officer at a police station could not be
admitted into evidence in
court unless the child's parent or a person with
guardianship who was over 18 years old, was ‘present at the place in the
police
station where and throughout the period of time during which it was made
or given’. The section retained a judicial discretion
to nonetheless allow
admission for 'proper and sufficient' reason.
Notwithstanding this
amendment, the courts continued to deal with the admissibility of a
child’s evidence (except when taken
within a police station) in criminal
proceedings in the same way as they would in relation to an
adult.[7] This meant that the common
law was to be applied by courts. In other words, courts could exclude evidence
on the basis of unfairness,
although as with adults there was a discretion to
admit the evidence where the prejudicial value was not outweighed by its
probative
value.[8]
The discretion to exclude improperly obtained evidence is well established. The Evidence Act 1995, following upon the common law, in ss 81-90, outline the circumstances in which ‘admissions’ by an accused are governed. In substance, the Act respects the fundamental principle of an accused's right not to incriminate themselves (the right to silence). The admission of confessional evidence will have an undoubted effect on the likelihood of conviction and therefore the veracity of the evidence; that it was lawfully obtained is crucial.[9]
The Children (Criminal Proceedings) Act 1987 was enacted as part of a
raft of legislation dealing with the area of juvenile
justice.[10] In this context, the
thrust of the legislation retained a concern with at once protecting children,
and establishing that children
had rights within the administration of the legal
system. This is not surprising given that the interface between care and
criminal
proceedings is complex, and 'riddled with
contradictions'.[11]
A major
provision of the Children (Criminal Proceedings) Act 1987 is that
it extended the protection offered to children, ensuring that all evidence taken
from a child by a police officer must initially
be considered through the filter
provided by s 13 of the Act. The limited scope of s 81C of the Child Welfare
Act was expanded to all information taken by police from a child, by s 13 of
the 1987 Act. This overrides the Evidence Act, and establishes a
framework in which all criminal proceedings dealing with children’s
evidence is now to be
governed.[12]
The effect of
the Act is that the judicial officer must first consider the circumstances of a
child’s conversation with the
police within the context of the
admissibility of evidence under s 13 of the Act before the provisions of the
Evidence Act can come into play. The Act applies in all state
jurisdictions and to all evidence of admissions, confessions and information
given
by a child to the police.
Section 13 of the Act draws a
broad parameter for the courts in determining the admissibility of evidence
given by children to the
police and the use of that evidence within the courts.
The Section reads as follows:
1) Any statement, confession, admission or information made or given to a member of the police force by a child who is a party to criminal proceedings shall not be admitted in evidence in those proceedings unless:
a) there was present at the place where, and throughout the period of time during which, it was made or given:
i) a person responsible for the child;b) the person acting judicially in those proceedings:
ii) an adult (other than a member of the police force) who is present with the consent of the person responsible for the child;
iii) in the case of a child who is of or above the age of 16 years – an adult (other than a member of the police force) who is present with the consent of the child; or
iv) a barrister or solicitor of the child’s own choosing; or
i) considers that there was proper and sufficient reasons for the absence of such an adult from the place where, or throughout the period of the time during which, the statement, confession, admission or information was made or given; and
ii) considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted in evidence in those proceedings.
The section clearly sets out a prohibition to
the admission of evidence unless these policy requirements are satisfied. The
material
which is sought to be admitted must be obtained when either a
‘person responsible’ is present or an adult who is present
with the
consent of a person responsible who is not a member of the police force, or,
alternatively, a lawyer of the child’s
own choosing. A child over 16 years
of age has the right to consent to an adult being present at the interview (who
is not a police
officer) or lawyer.
By reason of s 13(1)(b), the Act
provides for discretion to the judicial officer to admit the evidence
notwithstanding the absence
of persons responsible, or a lawyer, where there is
‘proper and sufficient reason’ and the ‘particular
circumstances’
warrant the admission of the evidence in the proceedings.
It is noteworthy that the original s 81C provision gives the authority
to a parent or guardian, whereas s 13 the Act vests this position
in a person
responsible. Significantly, ‘a person responsible’ has the authority
either to be present or determine who
will be present at an interview with the
police, where a child is under 16 years of age. A child, whether 16 years or
younger, may
choose to have a lawyer present. However, the Act does not set out
either the role of ‘a responsible person’, delegated
adult or
lawyer. Little more is gleaned from the definition of ‘a person
responsible’ in s 3, which says,
a) a parent of the child; or
b) a person who has the care or the child (whether or not the person has the custody of the child)
while ‘parent’ includes a
‘guardian’ or a person with the ‘lawful custody’ of the
child.
To gain a picture of what might be expected of 'persons responsible'
under this section, it is necessary to examine the recent case
law.
The interpretation of the duty of a person responsible for a child under
s 13 of the Act by the Supreme Court might well be seen as
developing from the
principles governing child welfare over the past century. It has long been
recognised that children are
vulnerable.[13] In R v
Warren,[14] Lee J considered the
legislative intent of s 81C Child Welfare Act 1939. His Honour
commented, in reading the section down:
No doubt the basis upon which the section was introduced into the Act was that, because a person under 18 years of age could well be or feel to be at a considerable disadvantage alone in a police station being questioned by mature men, it was desirable that an adult person be present, but the terms in which the section is expressed are clear and they show that the legislature is only intending to bring about the exclusion from evidence of those statements (using the word in the general sense) of an accused which are not made in the presence of an adult as the section requires.[15]
It
would seem that in Warren’s case, the Court interprets the role of
the adult present at an interview as simply being independent of the police,
that is the person
taking this role could not be a member of the police force.
The role therefore is limited to that of a ‘watching’ brief,
ensuring no impropriety or undue influence by the police.
Furthermore,
questions of impropriety by the police are not, according to R v
Williams,[16] the primary reason
by which evidence would be held inadmissible. However, considerations of
unfairness do come into play when the
court comes to consider the admissibility
of evidence, no doubt in the light of any evidence an adult present at the
interview might
give about adverse police conduct. Conversely, where no adult
has been present, a court must carefully consider whether to exercise
a
discretion to exclude the evidence if the child was not 'afforded a real
opportunity to exercise the choice to have a legal practitioner
present'.[17]
That an accused child is in need of protection from improper police conduct
is premised on an acceptance that children are vulnerable.
Recent NSW
legislation has made this explicit. The Crimes (Detention After Arrest)
Regulation 1998 defines a child as a 'vulnerable person'. In consequence a
child detained by police pursuant to this regulation is entitled to have
a
'support person' present.[18]
Significantly, Reg 23 goes on to provide that ‘A vulnerable person who is
a child cannot waive his or her right to have a
support person present'. The
clear implication is that a child is, by definition, a person who must have the
protection afforded
by a 'support person' when dealing with the police as a
suspect.[19]
The consequence
of this vulnerability is that the child may not be able to act upon or exercises
legal rights, principally against
making admissions to the police that are not
in their legal interests, whether untrue or otherwise. Children are at a
disadvantage
because of their youth in dealing with the police due 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’.[20] Is then,
the primary aim of s 13 of the Act to protect an accused child from
self-incrimination?
It was with the precedent of William’s
case in mind that Hunt J interpreted s 13 of the Act. R v
Cotton[21] makes it clear
that the construction of the section is premised on the protection of the
accused. The section, according to Hunt
J, is fundamentally aimed at protecting
a child from self-incrimination or damage to themselves, which may arise from
the provision
of information to the police.
In Cotton’s
case the court links this section with the general discretion in relation to
prejudicial and probative evidence saying:
Section 13, in combination with the general discretions, adequately protects such accused. Nothing more is required, although it is obvious from what I have already said that the youth of the accused and his standard of comprehension are matters to be taken into account in the exercise of those discretions.[22]
In R v Briar &
Jones[23] Finlay J takes
a different tack. He considers that the rationale for holding evidence of
children inadmissible pursuant to s 13 of
the Act is akin to the reasoning which
makes inadmissible the evidence of persons who are mentally disabled. Finlay J
relies on the
judgement of Gleeson CJ in R v
Parker[24] and Bullock
v Kennedy.[25]
Parker’s case links the mental illness of the accused with the
evidential value of the admissions. Interestingly, Hunt J rejects this
contention
in Cotton's case.
Notwithstanding the differing views
expressed by the Courts in Cotton’s case and the Briar &
Jones case, it is clear that the cases recognise that children are in a
vulnerable class of person. This position is clearly articulated
in R v
H[26] where the primary aim of
the section is reiterated; Hidden J says:
As Roden J observed in Williams, unfairness is catered for by the general law, now enshrined in various sections of the Evidence Act 1995 (NSW), without reference to a statutory provision dealing specifically with the interrogation of children. The primary aim of such a provision is to protect children from the disadvantaged position inherent in their age, quite apart from any impropriety on the part of police.[27]
In
summary, it can be determined that the courts accept two propositions: first,
that children are in need of protection from committing
harm to themselves; and
second, that children are in need of protection from others who may harm them,
namely the police. Furthermore,
the provision made by s 13 is effectively a
regime intended for judicial determination of what evidence can come before the
court. Of course, while the actual
effect of s 13 is to prohibit the use of the
evidence in court, this does not stop the police from interviewing a child. It
is in judicial proceedings
where evidence before the court would go towards the
consideration of whether or not an offence could be established against a child,
that the legislature intended there to be a check and balance.
What duty, therefore, does ‘a person responsible’ for a child
play under s 13 of the Act? Is it sufficient that such
a person is simply not
being a member of the police force? Or is it enough to say that this duty is one
which, at base, is independent
of the police?
The reasoning in Briar
& Jones provides some insight into the duty of ‘a person
responsible’. In that case the Court said that ‘a person
responsible’
is not someone who has a position which may be adverse to the
child. In that regard Finlay J states: ‘whatever a person responsible
for the child may mean, for the purpose of Section 13 I do not consider it to be
his
jailer’.[28]
Likewise,
‘a person responsible’ would not be someone who is a co-accused, or
whose presence at the interview could operate
unfairly to an accused. In
Cotton’s case, there were three records of interview conducted
between the police and the accused. In the first interview, a co-accused,
who
was also the de facto husband of the accused, was present at the
interview; and this was considered by Hunt J as not being within the spirit of
the legislation
(the court exercise a discretion to exclude that statement). In
the second interview, her father accompanied the accused, and in
the third
interview there was an independent adult; in both these situations, the court
admitted the evidence. Significantly, in
commenting on the third record of
interview, where a retired RAAF Officer had been present, Hunt J said:
Section 13 does not give to the accused the right to insist upon the presence of an adult from a particular category of those specified in subs (1). Such a construction would permit grave abuses to occur, and it could bring the orderly preparation of cases for trial by police to a standstill... .[29]
The
perspective in Cotton’s case is one in which the interpretation of
the section does not emphasise the rights of an accused, but rather focuses on
ensuring
only that an appropriate “protection” mechanism is put in
place at the time of interview. However, the Court, in this
case, goes on to
make a significant recommendation. Hunt J says:
I would suggest that in future greater emphasis be given to the independent status of any adult who has not been specifically nominated by the accused and whose presence has been arranged by the police.[30]
It
would seem that for Hunt J, the duty of an independent person (‘a person
responsible’) is to ensure that there are
no inappropriate dealings with
the child by persons in authority – by that is meant unfairness or
impropriety. Independent
persons have a duty which arises from being in a
particular position, and an independent person is synonymous with ‘a
person
responsible’.
This point is further illustrated in the case
of R v Dunn.[31]
In this case a Salvation Army officer, who was also a part-time police chaplain,
sat in on a record of interview being conducted
with a child. At the trial,
defence counsel suggested that, because of his position as a chaplain for the
police, the record of
interview should not be admitted as it was given thereby
to a ‘member of the Police Force’. In rejecting this contention,
the Court affirms that the import of s 13 is to ensure that there is no
unfairness in the conduct of the interview. Consequently,
it was not necessary
that the responsible person (or their delegate) be aware of the precise
allegations or charges against the young
person. Once again, the Court in this
case does not see the establishment of any rights for an accused in s 13.
Limited insight into the duty of a person responsible is gleaned from
the way the courts have dealt with the exercise of judicial
discretion contained
in the section. Where a judicial officer is satisfied that there was a
‘proper and sufficient reason’,
evidence obtained from a child
during an interview with police without ‘a person responsible’
present may nevertheless
be admitted in judicial proceedings ‘in the
particular circumstances of the case’at the court's discretion. The
evidence
can be admitted notwithstanding that the criteria of s 1(a) of the Act
is not satisfied. As the Court in Bullock v
Kennedy[32] notes, there
must be a concurrence of these circumstances before the court will admit this
evidence. This was affirmed by Finlay
J in Briar &
Jones.[33] Finlay J says, in
reference to s 13(1)(b)(ii):
This latter condition requires the Crown to discharge an onus of satisfying the Court that it is a proper case for the Court to include the material. The effect of the legislation, where the Court is not satisfied that any of the required persons were present, is to treat the admission of the evidence in those circumstances as an exception to the general rule.[34]
In the
light also of the Cotton judgment, it is clear that the court is
concerned with the propriety of the way the evidence of the child is obtained by
the police.
Where an ‘independent’ person or a ‘person
responsible for the child’ is not present, then the information
obtained
is prima facie inadmissible because a person classified with this status was not
present. In a sense, the role played by
people in this situation is conceived in
terms of a ‘watching’ brief, or someone who can ‘blow the
whistle’
if any untoward police conduct occurs. Cottons’ case
does not envisage a proactive role for the ‘independent’ person, and
they are not in the position of advocates
for the child. Once again, it is the
compliance with the section which is relevant, not immediately whether or not
the evidence is
obtained by unfair or improper police practice. In a particular
situation however, as Dunn’s case confirms, the substantive
problems associated with non-compliance with the form of the section may be
fatal to the admissibility
of the evidence of the child.
The
interpretation thus far discussed of the role or duty of ‘a person
responsible’ for a child, shows that the courts
have historically accepted
a legalistic and positivist attitude. It is not an attitude which lends itself
to the development of ‘rights’,
but rather sits comfortably within a
paternalistic paradigm. In contradistinction to this approach, contemporary
‘norms’
and international benchmarks recognised and developed over
the past 10 years through the High Court of Australia, place a new emphasis
on
the establishment of ‘rights’. In the following section it will be
argued that the interpretation of domestic legislation
must be couched within
the framework of international law. There must be a consequence for Australian
jurisprudence and it is in
this regard international law may be pointing the way
forward in articulating the rights of children.
It is clear that Australia's recognition and acceptance of international
covenants and treaties must have implications for the judicial
landscape, in
both the interpretation and application of domestic legislation. Consequently,
when examining domestic legislation
regard must be had to the international
arena; the orthodox view of the status of international documents has been
modified by the
High Court.[35]
There is no doubt that the High Court has accepted ‘that international law
is a legitimate and important influence on the
development of common
law’.[36] In this paper
consideration is being given to the rights of children, an area to which the
international community has paid particular
attention. Can the role of a 'person
responsible' for a child, as set out in domestic legislation, be illuminated or
clarified by
consideration of international instruments?
In considering
the nexus of the Children (Criminal Proceedings) Act 1987 with
international standards, cognizance must be taken of the principles set out in s
6 of that Act. This section says:
A Court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:
a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that effect them;
b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance;
c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption;
d) that it is desirable, wherever possible, to allow a child to reside in his or her own home;
e) that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind.
The significance of the inclusion of these principles within the Act cannot
be underestimated. In a real sense the legislative birth
of the Act marks a
turning point in the court’s approach to juvenile justice. A leading
commentator and Chief Magistrate of
the Children’s Court in NSW at the
time of enactment, states:
Section 6 of the Children (Criminal Proceedings) Act is a statement of principles courts must continually have resort to in exercising juvenile justice. For offenders the statement can be seen as a move away from any previous notions that the court simply acts in the apparent best interests of the child, and a move more towards the American model of ‘due process’... .[37]
That this is a recognition of the rights of the child is
also clearly expressed. The Chief Magistrate goes on to comment,
The statement is one which espouses children’s rights and freedoms, the desirability of children remaining in their local environment, but emphasises personal responsibility of children within the context of their development ... .[38]
While the
principles enunciated in s 6 of the Act do not explicitly refer to
international human rights instruments, there is an
obvious reflection or
resonance with those principles enunciated in the provisions made by the
section. This link can be made out
in the numerous provisions declared in
international instruments.
The Universal Declaration of Human Rights,
accepted by the United Nations in 1948 as the foundational document from
which all other treaties and instruments derive, clearly
establishes a framework
under which all human beings are to be governed. For example, Article 7
provides that ‘all are equal
before the law and are entitled without any
discrimination to equal protection of the law’, and Article 10,
‘everyone
is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in determination of his rights
and
obligations and of any criminal charges against him’.
These
rights provide for protection against arbitrary arrest and detention, freedom of
movement and residence, freedom of conscience
and the right to work, the choice
of employment and of favourable working conditions including proper pay and
remuneration. Significantly,
Article 26 says that:
(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible on the basis of merit.
(2) Education shall be directed to the full development of human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
These principles go on
to be re-defined and refined within a number of treaties and international
instruments. Particular attention
is given to the position of children. For
example, the International Covenant on Civil and Political Rights
(ICCPR), adopted by the United Nations General Assembly in 1966 states in
Article 10:
(1) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person;
(2) (a) Accused persons shall, save in exceptionable circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
(3) The penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.
More specifically,
Article 14 refers to the need to deal specially with juveniles and at
point 4 it says:
In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
The United Nations Convention on the Rights of the Child (UNCROC)
adopts the general principles proclaimed in the charter of the United Nations as
annunciated most clearly in the Declaration. UNCROC was ratified by
the Australian government in 1990 and its protocols came into force on 16
January 199l. Although not all the
articles have been implemented, it is clear
that ratification of the convention ‘generated a legitimate expectation
that the
rights of the child would be dealt with by the decision-maker in
accordance with the provision of the
article’.[39]
This does
not, however, mean that the convention has become domestic law in Australia,
although ratification may mean that the international
provisions have legal
import. Enforcement is more problematic, particularly within a common law
litigation based court system.[40]
Pursuant to ratification the government agrees to provide a report on compliance
to the UN committee established by CROC. Australia
has only lodged one report so
far. Furthermore, at this time, there is no mechanism in place under this
convention which could accept
complaints about breaches of children’s
rights.
UNCROC looks specifically at the plight of children and seeks
to set up benchmark principles by which they should be considered.
Children
have all the rights accorded to adults and, in a sense, some more special rights
because of their particular vulnerability.
Thus, Article 3 notes
at (1):
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
In this regard, parties to the Convention are
exhorted to ensure that governmental institutions ‘conform with the
standards
established by competent authorities’ and further at
Article 9:
States parties shall ensure that a child shall not be separated from his or her parents...(unless)...such separation is necessary for the best interest of the child. Children are considered actual participates in these proceedings, capable of forming their own views and expressing them, and where this is possible due weight being given in accordance with age and maturity.
At (2), UNCROC indicates:
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings effecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. [41]
Article 18
goes on to exhort that, in recognition of these principles, parents have the
responsibility of upbringing and development
or, as the case may be, a legal
guardian, and to ensure that their actions are taken for the child in that
child’s best interests.
Significantly in relation to the administration
of justice, Article 37 provides:
no child shall be subject to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below 18 years of age;
no 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;
every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family with correspondence and visits, save in exceptional circumstances;
every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to promote decisions on such action.
Article 40 goes on to affirm the need for
children to be dealt with in a way which takes into account their age and
vulnerability.
It states:
(1) States parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others, and which takes into account the child’s age and desirability of promoting the child’s re-integration and the child’s assuming a constructive role in society.
(2) To this end, and having regard to the relevant provisions of international instruments, States parties shall, in particular, ensure that:
a) no child shall be alleged as, be accused of, or recognised as having infringed the penal law by reason of acts or omissions that were not prohibited by national or international law at the time they were committed;(3) States parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognised as having infringed the penal law and, in particular:
b) every child alleged as or accused of having infringed the penal law has at least the following guarantees:
(i) to be presumed innocent until proven guilty according to law;
(ii) to be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;
(iii) to have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;
(iv) not to be compelled to give testimony or to confess guilt, to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality;
(v) if considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law;
(vi) to have the free assistance of an interpreter if the child cannot understand or speak the language used;
(vii) to have his or her privacy fully respected at all stages of the proceedings.
a) the establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law;(4) A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programs and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their wellbeing and proportionate both to their circumstances and offence.
b) wherever appropriate and desirable, measures for dealing with such children without resorting to judicial proceedings, providing that human rights and legal safeguards are fully respected.
The
framework of UNCROC, dealing as it does with the creation of children’s
rights cannot be ignored. It emphasises that the
protection of a child’s
rights is of broad scope and wide duty; a narrow reading of children’s
rights would be inconsistent
with the expressed intention and spirit of the
document. This being so, there must be implications for domestic legislation,
particular
legislation dealing with children.
The Declaration of Human Rights, the International Covenant for
Civil and Political Rights and the Convention on the Rights of the
Child are not domestic law in Australia. To become ‘law’,
domestic legislation has to be enacted. This has been done rarely,
and by the
Commonwealth Government in relation to only three international covenants. These
are: Covenant Against Torture, in the Crimes (Torture) Act 1988;
Convention on the Elimination of All Forms of Discrimination Against
Women, in the Sex Discrimination Act 1984; Convention the
Elimination of All forms of Racial Discrimination, in the Racial
Discrimination Act 1975. It should be noted also that the
Commonwealth and NSW Evidence Acts adopt the International Covenant on Civil
and Political Rights within the discretionary provisions of s 138.
These international instruments do, however, provide a benchmark by which we
can consider the way domestic legislation and case law
is applied.
Significantly, the instruments seek to establish a regime which is based on
‘rights’ as inherent principles,
which would allow for
implementation and application in the manner seen in countries which have a
‘Bill of Rights’.[42]
Australian legislators, and to a significant degree the courts, have not however
traditionally looked to establish a ‘rights’
based jurisprudence,
although ‘protection’ of individuals is found in Australian common
law, classically demonstrated
in cases such as Bunning v
Cross,[43]
Driscoll’s case[44] and
McDermott’s
case.[45]
Whilst it is true
that the international instruments referred to in this paper have not been made
into domestic law, it is equally
true that the High Court of Australia has been
reconsidering the place of international law within the common law framework.
From
at least the early 1990s it has been evident that the trend in the High
Court is towards a recognition of
rights.[46] Certainly human rights
principles, as defined in these international instruments are not explicitly
recognised by the Court in the
same way as might occur under a bill of rights.
Nor is there any provision within the Commonwealth Constitution, apart from
perhaps the external affairs power under s 51(xxix), for implementing this kind
of a regime. Nevertheless, the High Court explicitly acknowledges the force of
international law within
a domestic framework.
In a line of High Court
authorities, a change in the Court's view about human rights can be identified.
In Mabo v Queensland (No
2)[47] Justice Brennan,
says:
The opening up of the international remedies to individuals pursuant to Australia’s accession to the optional protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.[48]
This
view has certainly been endorsed by Justice Kirby, where, for example, in
Newcrest v Commonwealth[49]
he urges that the interpretation of the Australian Constitution must be in the
context of international principles of fundamental rights and that this
interpretation should be in conformity to
the meaning of those
rights.[50]
Whilst it may
be that parliamentary sovereignty must overcome explicit international
convention unless specifically enacted in domestic
legislation, it is equally
true that the provisions of the international instruments should be taken into
account in the exercise
of administrative jurisdiction. In Minister for
Immigration v An Hin
Teoh,[51] Mason CJ and
Deane J said:
...ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act, particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the convention and treat the best interests of the children as ‘a primary consideration’. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.[52]
The
consequences of the High Court’s position for the interpretation of the
Children (Criminal Proceedings) Act 1987 are manifold, and must
hold implications for how the State Courts define the role and duty of
‘independent’ persons under
s 13 of the Act. Furthermore, s 6 of the
Act establishes a paradigm of children’s rights. The principles move the
Act away
from the traditional jurisprudence seen in cases such as
Cotton,[53]
Dunn[54] or Briar &
Jones.[55] It should also be
noted that the Commonwealth government has ratified a number of treaties,
including the ICCPR and UNCROC. Whilst
this has not often seen a direct
implementation of the international principles into domestic legislation, it
does provide for a
complaint mechanism, and perhaps more significantly a clearer
path for applying the common law in the light of these benchmarks.
In the line of authority in New South Wales, marked by such cases as
Cotton and Dunn, and Briar & Jones, we see the spirit
of s 13 of the Act interpreted in a conventional and traditionalist perspective.
The Court in those cases argues
from the position of paternalism, interpreting
the legislation in a way that reads down ‘rights’ which might
otherwise
be implicit in a different construction of the legislation. Taking
cognizance of significant High Court decisions which show an
increasing interest
and tolerance in construction of domestic legislation in the light of
international obligations, a new perspective
can be taken on the interpretation
of s 13 of the Act. This interpretation is one which emphasises the rights of
the child, rather
than the position of children within a paternalistic legal
framework.
It is accepted, in both the NSW case law and in the
international arena, that the presence of an adult is imperative. In
Cotton’s case, for example, Hunt J interprets the role of the
‘person responsible’ for a child, or independent adult present at
interview with consent of the responsible child, as merely guaranteeing the
proprietary of the interviewing process. Disregard is
given to any role which
would be pro-active in aiding or managing the rights of the accused child. In
Dunn’s case, the adult present, an apparently respectable RAAF
Officer, does not have to know the specific nature of allegations or charges
faced by the person whom he is purporting to assist in the record of interview;
apparently his duty is fulfilled by his presence,
and keeping watch against any
impropriety of the police. The duty of the person responsible is limited.
One might argue a different view based on a ‘rights’
principle and a child’s ‘best interests’.
International
instruments refer to the vulnerability of children, arising from their age and
position within society. Children are
inherently powerless, and accordingly
their interests must be safeguarded through legislation and in judicial process.
Article 3(1)
UNCROC underlines that decisions about a child’s welfare must
be made in accord with their ‘best interests’.
UNCROC
positions children’s rights at the forefront of the debate. It places
obligations on government to ensure systems are
in place which engender
pro-activity. Rights can only be real if they are manifest in action. Article
14(2) makes this clear,
State Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
It follows that the role or duty of a parent (vis
‘a person responsible’/ independent person) under s 13 of the Act
cannot
be passive. In UNCROC at Article 40(b)(ii) a child, through parents
or legal guardian, is entitled to have legal assistance in the
preparation of a
defence. The Australian Law Reform Commission has recently underlined the
problem for children in these situations.
The Commission states:
‘Submissions to the inquiry suggest that in practice children are not made
sufficiently aware of their
rights by Federal, State or Territory police during
questioning’.[56]
How
can the preparation of a defence be organised if the adult sitting in the
interview does not know the nature and extent of the
charges and does not take
action to ensure that the child has access to that advice from a lawyer? A
notional ‘independence’
from all parties (including the child and
the police) is patently inadequate to ensure that a child can effectively
exercise their
rights.
The 1997 ALRC Report is a considered response to
the power disparity between children and adults, and in this context the
recommendation
about the purpose of an ‘interview friend’ is timely
and apposite. The Report contends that ‘[T]he presence of
the interview
friend is an important means of compensating for the disadvantage experienced by
young people when being interviewed
by
police’.[57] Thus the role is
not one of notional independence, but rather the independent person has a
crucial function in protecting the rights
of the child, ensuring that their best
interests are operative.[58]
It
is in this context that one must consider the principles set out in s 6 of the
Act, and then look critically at the interpretation
of the duty of
‘person responsible’ within s 13. A significant difference between
s 81C Child Welfare Act and s 13 of the Act makes this point clear. Under
s 81C the protection provided to a child to have an adult present when
interviewed
by the police was only afforded once the child was at the police
station. Section 13 extended this protection to all contact between
a child
suspect and the police. In extending this protection the legislature has
recognised the obvious absurdity arising under s
81C which allowed the police to
obtain information from the child prior to reaching the police station, and
without having to conform
to a requirement of having an adult present.
It is a further breach of Article 40(b)(iv) in that, in this situation, the
child is effectively compelled to provide testimony and
perhaps even confession
of guilt, by the act of omission of the ‘independent/person responsible'
in failing to advise the child
of their right to obtain legal advice. Sitting an
‘independent’ person in the room while the child is interviewed by
the police may stop the child being assaulted, but it does not ensure that they
do not ‘harm’ themselves by saying imprudent
or foolish things.
Following the reasoning of the High Court in cases such as Newcrest, a
court should interpret ‘person responsible’ or the role of the
independent adult in a way which is consistent with
the principles annunciated
in UNCROC, that is, that the role of an independent person is pro-active in
promoting what is in the ‘best
interests’ of the child. Sustaining a
child’s ignorance of their legal rights (such as, to remain silent at the
interview
with police or to obtain legal advice) is clearly not consistent with
the best interests of the child.
In the case of Briar & Jones,
Finlay J explicitly rejected the proposition that a ‘jailer’ is an
appropriate person to sit in on a record of interview
ensuring the proprietary
of the conduct of the police. Note here that the ‘jailer’, who was
employed by a Government
department and entrusted with the custody of juveniles,
is not a member of the police force specified in s 13. Yet the Court held
that
the spirit of the Act meant that a ‘jailer’, although having the
control and care of the child, could not be classified
as independent. The
pro-active role of someone involved in ‘sitting in’ on a record of
interview to assist a child cannot
be actively seen as disabling the interests
of the child.
Implicit in the UNCROC principles is an understanding that
an ‘independent person’ would aid the child in this situation
in
terms of advising them how to seek full access to their rights. Surely this is
consistent with s 6 of the Act, which sets out
the principle that children have
rights and freedoms before the law equal to those enjoyed by adults ‘... a
right to be heard
and a right to be heard in the process that leads to decisions
that affect them’.[59] In
this instance, it is suggested that for the child to participate, ‘to be
heard’, in the process requires the active
assistance of a person in a
position of responsibility to effect the child’s access to their
rights.[60] This is obviously not a
role, to quote Finlay J in Briar & Jones, that could be undertaken by
a ‘jailer’.
Ignorance of rights must vitiate real
participation in the process and place in doubt the veracity of what a child may
say to the
police where their will may be overborne. This is the kind of
protection of rights which is clearly seen, in more recent NSW legislation,
in
the provision of the Young Offenders Act 1997. In s 22 of that
Act, before an ‘investigating official’ proceeds to caution a child
certain rights must be explained, inter alia,
‘that the child is entitled
to obtain legal advice and where that advice may be obtained’ and this
explanation must ‘if
practicable’ take place in the presence of
‘a person responsible’ for the child. Similarly this same
obligation,
at a later is stage in court proceedings, is upon the advocate to
ensure the court that the child understands the nature of the allegations,
and
the implications of the court
proceedings.[61]
It may be
that the police find the presence of a person at the interview discharges the
duty laid out by the legislation. However
a more obvious interpretation arises
from the very nature of the relationship between a ‘person
responsible’ and the
child; this is, a relationship which must import
trust and responsibility.
This type of interpretation is certainly not
impossible within the traditional construction of the Act. It is, however, an
interpretation
which moves beyond a passive model to active intervention on
behalf of a child. It is an approach which takes account of the vulnerability
of
children (as admitted in Williams, per Lee J) and promotes events in the
‘best interests’ of the child the subject of criminal allegations.
The approach
is not without precedent; in McKellar & Booth v Smith &
Another[62] the Court stated
that a child must be told of their rights (in this case, to have the assistance
of a lawyer).
The role of a ‘person responsible’ should be seen in the
light of contemporary standards, as judged by international benchmarks
contained
in international treaties and covenants. As noted in the judgments of Mason CJ
and Dean J in Teoh’s case ‘...ratification by Australia by an
international convention is not to be dismissed as a merely platitudinous or
ineffectual
act’. Certainly Hidden J in R v
H[64] address this issue, and
develops a jurisprudence which recognises that a proper interpretation of s 13
gives rights to the child.
He says,
...[T]hat protective purpose can be met only by an adult who is free, not only to protest against perceived unfairness, but also to advise the child of their rights. As the occasion requires, this advice might be a reminder of the right to silence, or an admonition against further participation in the interview in the absence of legal advice.[65]
Children
who are being interviewed by police about allegations of criminal conduct are
entitled to be advised of their legal rights.
This advice must be in a context
in which it can be understood and acted upon by the child. If a child is unable
to act upon or
understand their rights within this context then it cannot be
said that they are being allowed to exercise their fundamental human
right to
express or not express their views about an allegation. This is how the Act
should be interpreted, to give the child the
full rights implicit in a proper
reading of the s 13. The point made by Kirby in Newcrest is particularly
apt in looking at the role of a ‘person responsible’ in s 13 of the
Act during the interviewing process.
He says:
To the full extent that its text permits, Australia’s Constitution, as the fundamental law of government in this country, accommodates itself to international law, including insofar as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. It also speaks to the international community as the basic law of the Australian nation which is a member of that community.[66]
Section
13 provides the child with a number of options for assistance. An alternative to
‘a person responsible’ is provided by s 13(1)(a)(iv), that is, the
child may elect to have present ‘a barrister or solicitor of the
child’s own choosing’. Can it be
said that the courts expect any
other role from a lawyer in this situation than that of giving appropriate and
proper advice and
advocacy? R v H certainly answers this in the negative;
the Court states in this regard,
No one could suggest that a barrister or solicitor, whose presence is envisaged by s 13(1)(a)(iv), could be restrained from tendering advice. Nor should any other adult. Further, within appropriate limits, the adult might assist a timid or inarticulate child to frame his or her answer to the allegation. For example, the child might be reminded of circumstances within the knowledge of both the child and the adult which bear on the matter.[67]
The
Act envisages an advocacy role, not the role of watchman. The UN Declaration
expects children to be accorded the same rights as
adults.[68] This principle is
articulated in s 6(a) of the Act, and in the pro-active (and professional) duty
of the lawyer recently affirmed
in Representation Principles for
Children’s Lawyers.[69]
The ‘person responsible’, an ‘independent adult’
and a lawyer share a duty to ensuring that a child has access
to their
‘rights’, and if they do not facilitate this during the interview
process, then they are derelict in their duty
both to the child and ultimately
to the community. The ALRC, in Recommendation 212, sets out a national standard
for the role of
an ‘interview friend':
An interview friend must be present during police questioning of a child suspect and have an opportunity to confer in private with the child prior to questioning. Statements made in the absence of an interview friend should not be admissible in evidence against the child. The function, responsibilities and powers of the interview friend should be defined by statute. The definition should encompass the interview friend’s role in providing comfort, support and protection for the young personas well as ensuring the young person is aware of his or her legal rights.[70]
While
a ‘person responsible’ is not expected to be a lawyer, they should
be in a position to identify if the child needs
legal advice, and it is
incumbent in the duty to facilitate this advice. The role of a person
responsible must be more than a mere
‘watch dog’ who ensures a child
is not intimidated or assaulted by police; international standards expect more.
The
interpretation of the Act in a manner which does not take into account the
standards set by international covenants deprives children
of the fundamental
protections intended by the legislators.
This paper has identified clear divisions in the way s 13 of the Act is
interpreted within the leading Supreme Court cases. The most
recent
consideration of the section, in R v H, draws together the major issues
identified in previous case law and moves forward in recognition of both the
underlying spirit of
the Act and international expectations. To a significant
degree a contemporary interpretation of the Act relies on the same material
as
the precedent cases, that is, the vulnerability of children. This concern is
explicitly shared by the international community
and is expressed through the
benchmark standards of international instruments.
Where international
standards are either implicit or expressed, as in the principals set out in s 6
of the Act, there must be a consequence
for the construction of the legislation
by the courts. Certainly the High Court acknowledges that the development of the
common law
must take into account the ‘legitimate and important
influence’ of international standards. A barrage of international
instruments, and specifically for the purposes of this paper the ICCPR and
UNCROC, declare clear expectations (benchmark standards)
for the management of
criminal allegations against people; there is a particular concern shown for the
welfare of children. These
standards are expressed in the establishment of
‘rights’.
In the light of s 6 of the Act the establishment
of ‘rights’ is a necessary outcome of a contemporary construction of
s 13. The guiding principle for a decision-maker must be what is in the best
interests of the child, and in that sense a ‘person
responsible’ can
never merely take on a passive role where the rights of the child need to be
exercised. The principles of
s 6 engender a necessary shift in our jurisprudence
towards the recognition of ‘rights’ in the context of ‘due
process’. If this is correct, then the duty of ‘a person
responsible’, must take on a pro-active role during the
operation of the
section, that is, when the child is being interviewed by the police. A passive
role cannot fulfill the duty. It
is accepted in all the case law that the
section has at least two purposes; to protect the child from self-harm and to
protect the
child from improper or unfair conduct by the police.
In
Cotton, Briar and Dunn, the court perceives a
‘watchman’s’ role for a ‘person responsible’;
whereas, in R v H the duty is to actively ensure that the child’s
best interests are recognised. The strength of the position in R v H is
that it shows that a ‘watchman’s’ role does not appreciate the
intent of the legislators to ensure that children
are actually protected in a
situation where, to use Lee J’s words in Warren’s case,
‘...they are at considerable disadvantage alone in a police station being
questioned by mature
men...’.[71] Nothing in s 13
prohibits the child acting on their ‘rights’, and indeed to the
contrary, the duty of the police, the
lawyers and the courts is to ensure that
children are aware and able to exercise those rights.
[*] Senior Lecturer, Faculty of
Law, The University of
Newcastle.
[1] R Ludbrook,
Police Questioning of Young People (Discussion Paper, National
Children’s and Youth Law Centre, 1994); H Blagg and M Wilkie, Young
People and Police Powers (The Australian Youth Foundation: Sydney,
1995).
[2] Australian Law Reform
Commission, Seen and Heard: Priority for Children in the Legal Process,
Report No 84 (1997).
[3] J
Seymour, Dealing with Juvenile Offenders (Law Book Company: North Ryde,
1988) 77.
[4] Australian Law
Reform Commission, Sentencing Young Offenders, Report No 11 (1988)
1-12.
[5] J Seymour, above n
3.
[6] M Kirby, ‘Human
Rights Agenda for the Future’ in B Galligan and C Sampford (eds),
Rethinking Human Rights (Federation: Annandale, 1997)
20.
[7] Dixon v McCarthy
(1975) 1 NSWLR 617.
[8]
McDermott v The King (1948) 76 CLR 501; Bunning v Cross [1978] HCA 22; (1977-78)
141 CLR 54; s 410 Crimes Act 1900
(NSW).
[9] M Aronson and S
Hunter, Litigation, Evidence and Procedure (Butterworths: Sydney,
6th ed, 1998)
302.
[10] R Blackmore, The
Childrens Court & Community Welfare in NSW (Longman Professional:
Sydney, 1989) 25.
[11] T Carney,
‘The Interface Between Juvenile Corrections and Child Welfare’ in A
Borowiki and J Murray (eds), Juvenile Delinquency in Australia (Methuen:
North Ryde, 1985) 202.
[12] Section 8 Evidence Act 1995 states ‘This Act does not affect the operation of any other Act’.
[13] Bromley v The Queen
[1986] HCA 49; (1986) 161 CLR 315.
[14]
(1982) 2 NSWLR 360.
[15] Ibid
367.
[16] (9 August 1982) 7
Petty Sessions Review 3089.
[17] McKellar & Booth v
Smith & Another (1982) 2 NSWLR 950, 957.
[18] Reg
21(1).
[19] A strikingly
similar position is adopted in Queensland, where, in s 4(b) Juvenile Justice
Act 1992 it states ‘because a child tends to be vulnerable in
dealings with a person in authority a child should be given the special
protection by this Act during an investigation or proceeding in relation to an
offence committed, or allegedly committed by the child’
and at s 4(j)
‘the age, maturity and, where appropriate, cultural background of a child
are relevant considerations in a decision
made in relation to a child under this
Act’.
[20] Australian Law
Reform Commission, above n 2, 18,
103.
[21] (1990) 19 NSWLR
593.
[22] Ibid
596.
[23] (8 March 1990,
unreported).
[24] (1990) 19
NSWLR 177.
[25] (14 March 1988,
unreported).
[26] (1996) 85 A
Crim R 481.
[27] Ibid
486.
[28] R v Briar &
Jones (8 March 1990, unreported)
13.
[29] R v Cotton
(1990) 19 NSWLR 593,
598.
[30] Ibid
599.
[31] (15 April 1992,
unreported).
[32] (14 March
1988, unreported).
[33] (8
March 1996, unreported).
[34]
Ibid 11.
[35] R Piotrowicz and
K Stuart, Human Rights in International and Australian Law (Butterworths:
Sydney, 2000) 201.
[36] D
Kinley, ‘Legal Dimensions of Human Rights’ in D Kinley (ed),
Human Rights in Australian Law (Federation: Sydney, 1998)
22.
[37] R Blackmore, above n
10, 54.
[38] Ibid
55.
[39] A Mason, ‘The
Rule of the Judiciary in Developing Human Rights in Australian Law’ in D
Kinley (ed), Human Rights in Australian Law (Federation: Sydney, 1998)
30.
[40] D Kinley, above n 36,
23.
[41] Article
12.
[42] As seen, for example,
in the United States of America, Canada and New Zealand. Even the United Kingdom
has adopted the European Convention for the Protection of Human Rights and
Fundamental Freedoms.
[43]
[1978] HCA 22; (1977-78) 141 CLR 54.
[44]
Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR
517.
[45] (1948) 76 CLR
501.
[46] N O'Neill and R
Handley, Retreat from Injustice Human Rights in Australian Law
(Federation: Annandale, 1994)
83.
[47] (1992) 175 CLR
1.
[48] Ibid
42.
[49] [1997] HCA 38; (1997) 147 ALR 42,
147.
[50] This is not a radical
view; the position was confirmed in Polites v The Commonwealth [1945] HCA 3; (1945) 70
CLR 60, 68-69 where the court affirmed that the principal that every statute is
to be interpreted and applied consistently ‘with the
comity of nations or
with the established rules of international law’ but in English law it is
also recognised ‘that
courts are bound by the statute law of their own
country, even if that law should violate a rule of international law’.
[51] (1995) 69 ALR
423.
[52] Ibid
432.
[53] (1990) 19 NSWLR
593.
[54] (15 April 1992,
unreported).
[55] (8 March 1990,
unreported).
[56] Australian Law
Reform Commission, above n 2, 18,
98.
[57] Ibid 18,
102.
[58] In New Zealand, where
the Children Young Person and their Families Act 1989 recognises the
special vulnerability of children, recent review highlights the need for the
independent person to actively support
the child. It is suggested that training
be given to people who accept the role of independent person and access to legal
advice
be immediately available. See S Porteous, ‘Young People and Police
Questioning: How Effective is the Nominated Person?’
(July-December 2000)
46 Youth Law Review.
[59]
This notion is explicitly recognized in s 58 of the Juvenile Justice Act
1992 (Qld) which places an obligation on the court to ensure that the child
and the parent have full opportunity to be heard and participate
in court
proceedings. This means that they must understand the nature of the allegations,
the elements required to establish the
offence, and the nature and possible
outcomes of court orders.
[60]
This reasoning is found in T v Wayne (1983) 35 SASR 247, where the court
considered the admissibility of a statement made by a child to police without
the presence of an adult.
[61]
Practice Directions of the Children’s Court and Forms, cl
10.
[62] (1982) 2 NSWLR 950.
[63] (1996) 85 A Crim R
481.
[64]
Ibid.
[65] Ibid
486.
[66] [1997] HCA 38; (1997) 147 ALR 42,
148.
[67] (1996) 85 A Crim R
481, 486.
[68] Article
7.
[69] Law Society of New South
Wales, detailed in Law Society Report, New Representation Principles for
Children’s Lawyers, 2000; B Campbell (ed), ‘New Representation
Principles for Children’s Lawyers’ 38(11) Law Society Journal
50-54.
[70] Australian Law
Reform Commission, above n 2,
109.
[71] (1982) 2 NSWLR 360,
361.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/QUTLawJJl/2002/14.html