Elizabeth Fraser Commissioner for Children and Young People and Child Guardian 24 August 2012

1. A case of injustice – 17 year olds in Queensland’s adult prisons Elizabeth Fraser Commissioner for Children and Young People and Child Guardian 24 August 2012

2. Overview • The current situation: How did we get here? – The Youth Justice Act 1992 • Why is this a problem? What 17 year olds are missing out on – Overview from Commission Policy Position Paper • What is being done or can be done? • Visits to 17 year olds in adult prisons – What we have learnt? • Alternatives to detaining young people that could reduce re-offending • Questions?

3. The current situation Youth Justice Act 1992 Schedule 4: childmeans — (a) a person who has not turned 17 years; or (b) after a day fixed under section 6 — a person who has not turned 18 years. Section 6: Child’s age regulation (1) The Governor in Council may, by regulation, fix a day after which a person will be a child for the purposes of this Act if the person has not turned 18 years.

4. History Introduction of the Juvenile Justice Act into Parliament in 1992: ‘It is the intention of this Government… to deal with 17-year-old children within the juvenile, rather than the adult, justice system… This is consistent with the age of majority and avoids such children being exposed to the effects of adults in prisons, thereby increasing their chances of remaining in the system and becoming recidivists. This change will occur at an appropriate time in the future.’

5. Sentencing Adult or child? Sentenced as an adult: Generally where a person commits an offence after they turn 17 If the person commits an offence before they turn 17 but proceedings do not commence until after they turn 18 (at sentencing the court must consider the fact that they were a child when the offence was committed) Sentenced as a child: Generally where a person commits an offence and is found guilty before they turn 18

6. Timeline 1990: United Nations Convention on the Rights of the Child ratified by Australia 1992: Introduction of the Juvenile Justice Act in Queensland 1998: Tasmania – Youth Justice Act 1997 2000: Northern Territory – Sentencing of Juveniles (Miscellaneous Provisions) Act 2000 2002: Juvenile Justice Amendment Act passed in Queensland 2005: Victoria - Children, Youth and Families Act 2005

7. Why is this an issue? The Commission’s Policy Position Paper: ‘Removing 17 year olds from Queensland’s adult prisons and including them in the youth justice system’- advocates for the removal of 17 year olds from adult prisons United Nations Convention on the Rights of the Child Article 1: a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier. Article 3: 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.

8. United Nations Convention on the Rights of the Child Article 37: State parties shall ensure that: b) 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; and c) 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 through correspondence and visits, save in exceptional circumstances

9. United Nations Committee on the Rights of the Child • Reviews countries’ progress in implementing the Convention • Concluding Observations 2012: • The Committee is concerned that… In Queensland, children aged 17 in conflict with the law may be tried as adults in particular cases. • The Committee recommended that Australia bring its juvenile justice system in line with the Convention and other UN standards including: • UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) • UN Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines) • UN Rules for the Protection of Juveniles Deprived of Their Liberty, and • Vienna Guidelines for Action on Children in the Criminal Justice System. • the Committee recommends in particular that the State party… Remove children who are 17 years old from the adult justice system in Queensland

10. What 17 year olds are missing • The Commission’s Policy Position Paper highlights that 17 year olds are missing out by not being treated in accordance with the Youth Justice Act 1992and its Charter of Youth Justice Principles • For example, 17 year olds are missing out on: • accessing targeted and developmentally-appropriate interventions, supports and services, eg. educational and rehabilitation programs • protections and special considerations such as specific sentencing considerations in section 150 • diversionary options, eg. cautions and youth justice conferences, and • the benefit of principle 17 – that a child should be detained in custody for an offence only as a last resort and for the least time that is justified in the circumstances.

11. What 17 year olds are missing • Unlike young people dealt with under the Youth Justice Act 1992, 17 year olds also: • are not subject to the requirement for police to notify their parents of their arrest • do not have access to the provision in section 305 of the Youth Justice Act 1992 regarding their parents’ entitlement to know their whereabouts when in custody • are not subject to the publication protections in section 301 of the Youth Justice Act 1992 and can be publicly named • can be required to give DNA samples without a court application • are not required to have a parent present for police interviews, and • are subject to less restricted search and seizure police powers.

12. Remand 17 year olds are not subject to principle 18, that a child detained in custody should only be held in a facility suitable for children. As a result, 17 year olds can be placed on remand in an adult prison until they are convicted and/or sentenced. High rates of remand: • Increase demand in correctional facilities • Expose those on remand to the detrimental effects of prison before being convicted and/or sentenced • Do not allow access to programs

13. Offences Australian Bureau of Statistics Prisoners in Australia 2011, 4517.0.

14. Offences Queensland Police Service Annual Statistics Report 2010-2011 Offences committed by 17 year olds in Queensland 2010/2011: • offences against the person (901) – eg. murder (0), other homicide, assault, sexual offences, robbery. • offences against property (5359) – eg. unlawful entry, property damage, theft, and handling stolen goods. • other offences (5698) – eg. good order, drug, traffic, • and trespassing offences.

15. What is being done? • Advocacy • Judicial commentary: • R v Loveridge [2011] QCA 32:“This Queensland anomaly has been criticised by commentators who argue that Queensland is in breach of its obligations under the Convention.” • R v Lovi [2012] QCA 24: “There appears to be no justification in principle for a criminal justice regime which punishes a 17 year old in Coolangatta differently from a 17 year old in Tweed Heads for precisely the same offence against Commonwealth law.” • R v Gordon [2011] QCA 326: “The circumstances placed before the sentencing court do not suggest his maturity levels were those of an adult when he was sentenced as a 17 year old.” • R v Gam [2011] QCA 288 • Community Visitor visits

16. Community Visitor visits • Since October 2011 • CV visits allow us to: • hear about young people’s experiences • listen to their concerns • provide help and support in resolving issues • help young people to access support people and services • monitor their wellbeing, and • inform our advocacy. • Visits have taken place in October 2011, February, April, May, June and July 2012

17. Types of issues raised by 17 year olds in adult prisons

18. ‘Programs and services’ issues raised by 17 year olds in adult prisons

19. Views survey of young people in detention Commission for Children and Young People and Child Guardian. (2011). Views of Young People in Detention Centres, Queensland, 2011.

20. Where to from here? • CV visits are not enough • Continued advocacy is required • Other measures are also required to reduce the number of young people in detention and address the likelihood of re-offending: • Increasing alternatives to detention • Intensifying intervention programs for young people not suitable for diversion • Improving transitions back into the community • Reducing the youth remand population, and • Reducing the over-representation of Aboriginal and Torres Strait Islander young people in the youth justice system.

21. In summary • Some young people need to be incarcerated, both for the safety of the community and in the interests of justice • BUT all children and young people have the right to have their developmental and educational needs met, and this can be better achieved through the youth justice system • Placing 17 year olds in adult prisons prevents them from accessing critical services that support healthy development and provide opportunities to break the cycle of offending behaviour • Removing 17 year olds from adult prisons and including them in the youth justice system will deliver better outcomes for the community and for these young people

22. Commission for Children and Young People and Child Guardian website: www.ccypcg.qld.gov.au Elizabeth Fraser Commissioner for Children and Young People and Child Guardian T: 3211 6888 E: elizabeth.fraser@ccypcg.qld.gov.au Commission for Children and Young People and Child Guardian Level 17, 53 Albert Street BRISBANE Q 4000 Further information