TOPICS

2010 > hot topics 73

HOT L e g a L i s s u e s i n p L a i n L a n g u a g e

Young people This is the seventy-third issue in the series Hot Topics:
legal issues in plain language, published by the Legal
Information Access Centre (LIAC). Hot Topics aims to
give an accessible introduction to an area of law that is

and crime the subject of change or public debate.

1 overview
What is juvenile justice? major juvenile justice legislation around
Australia international law Convention on the Rights of the
Child (CROC) age and criminal responsibility snapshot of NSW
young offenders juvenile justice in NSW.
AUTHOR NOTE: This issue has been co-written by:
7 police and young people Jenny Bargen, Adjunct lecturer, Sydney Law School; member,
Searches sniffer dogs for drug detection move-on directions Juvenile Justice Committee, Law Society of NSW; part time
arrest safeguards relating to police powers detention after arrest lecturer, UTS and Sydney Law School; formerly Director of
special protection for young people in police custody fines and Youth Justice Conferencing with the Department of Juvenile
Justice; writes and consults extensively on juvenile justice issues
young people special protection for young people during (Overview, Children in court, Diversionary schemes, Timeline);
police questioning. Jane Sanders Principal Solicitor for The Shopfront Youth
Legal Centre (Police and young people, Disadvantaged young
12 children in court people); Clare Blakemore Policy Officer, UnitingCare Burnside
The Childrens Court principles of juvenile justice Youth Drug (Juveniles on remand); Louise Sutherland Solicitor, Childrens
and Alcohol Court. Legal Service, Legal Aid NSW (Group offending) and Sarah
Crellin Solicitor, Childrens Legal Service, Legal Aid NSW
14 Diversionary schemes (Youth Drug and Alcohol Court).
Young Offenders Act (NSW) Youth Justice Advisory Committee Some material in this issue has been based on a previous issue,
warnings cautions youth justice conferences No. 49: Juvenile justice.
DESIGN: Bodoni Studio
17 Juveniles on remand PHOTOS: Cover image and p 6 DW Stock Photo Library;
Children and young people locked in the system Who are the pp 11 & 29 Fairfax Photos; p 13 Corbis Images; p 16 NSW
children and young people on remand? Why is this happening? Police Service; p 23 iStockphoto.
What are the consequences? other options/solutions.
22 group offending state Library of nsW
Joint criminal enterprise common purpose or extended joint cataloguing-in-publication data
criminal enterprise background to the Group Offending Project Title: Young people and crime/[Jenny Bargen ... [et al.];
Burn project. editor Cathy Hammer].
Publisher: Sydney, N.S.W.: Legal Information Access Centre, 2010.
25 Disadvantaged young people Subjects: Juvenile delinquency New South Wales
Indigenous young people newly-arrived young people young Juvenile delinquency Australia
women or girls and juvenile justice young people with intellectual Juvenile justice, Administration of New South Wales
disabilities young people with mental health issues homeless Juvenile justice, Administration of Australia
Youth Legal status, laws, etc. New South Wales
young people and children in need of care. Youth Legal status, laws, etc. Australia
30 timeline Other Authors/Contributors:
Bargen, Jenny
36 Further information Sanders, Jane
Blakemore, Clare
Hammer, Cathy
Legal Information Access Centre
Series: Hot topics (Sydney, N.S.W.); no. 73
Dewey Number: 345.99403
hot topics issn 1322- 4301, no. 73

Hot Topics is intended as an introductory guide only and should not be interpreted as legal advice. Whilst every effort is made to provide the most
accurate and up-to-date information, the Legal Information Access Centre does not assume responsibility for any errors or omissions. If you are
looking for more information on an area of the law, the Legal Information Access Centre can help see back cover for contact details. If you want
specific legal advice, you will need to consult a lawyer.

Copyright in Hot Topics is owned by the State Library of New South Wales. Material contained herein may be copied for the non-commercial purpose
of study or research, subject to the provisions of the Copyright Act 1968 (Cth).
 Overview
it is widely acknowledged in australia and
around the world that children and young people
should be subject to a system of criminal justice
that is separate from the adult system and that
recognises their inexperience and immaturity. as
such, children are typically dealt with separately
from adults and treated less harshly than their
adult counterparts.1
WHAT IS JUVENILE JUSTICE?
Juvenile justice is a combination of rules, institutions
and people involved in the control, punishment and
rehabilitation of children and young people as suspects
and, most commonly, as offenders. The system of
juvenile justice is primarily the responsibility of state
governments, with state legislation, and state departments
and facilities. Various Federal and local authorities,
as well as a range of non-government agencies, also
play a role in the operation of juvenile justice in each
state and territory. International instruments, such as
the UN International Covenant on Civil and Political
Rights (ICCPR), the UN Convention on the Rights
of the Child (CROC), the UN Standard Minimum
Rules for the Administration of Juvenile Justice (the
Beijing Rules) and the UN Minimum Rules for the
Treatment of Children Deprived of their Liberty provide
useful benchmarks against which legislation, policy and
practice in juvenile justice may be measured.
The laws, practices, policies and players who make up
the system of juvenile justice can be called a system
only in a very loose sense. In NSW, for example,
three government agencies play major roles in juvenile
justice the NSW Police Force, the Attorney General
in the Department of Justice and the Attorney General
(DJAG), and Juvenile Justice, in the Department of
Human Services. Corrective Services NSW (in DJAG)
also plays a part, with responsibility for the incarceration
of some young offenders who are aged over 18 but have
committed a serious offence when aged under 18 and
have been sentenced to a term of imprisonment.
1. Juveniles contact with the criminal justice system in Australia, K Richards, Monitoring Report No. 7, Australian Institute of Criminology, 2009,
p 22; available at www.aic.gov.au
2. In NSW only see Children (Criminal Proceedings) Act 1987 (NSW), sections 5 and 28(1). In Victoria, the maximum age at which an adult
can be tried as a child is 19 see section 516(5), Children, Youth and Families Act 2005. In other jurisdictions, no exceptions are made so that
those over 18 (17 in Queensland) who commit offences when they are aged less than 18 but are not apprehended until after they turn 18 are
dealt with in the adult courts.
Both the Police Force and Attorney Generals have
responsibility for adult offenders as well as young
offenders. Only Juvenile Justice is solely responsible
for young offenders those who have been referred to
a youth justice conference by either the police or the
Childrens Court, and those who are on community or
custodial orders made by the Childrens Court.
No single piece of legislation regulates the juvenile justice
system in any Australian jurisdiction. Some legislation
applies only to children while other legislation applies to
both children and adults. The following table shows the
variety of legislation applicable to children and young
people in trouble with the law in all Australian states
and territories.
Apart from legislation, another defining boundary is
the age at which a person allegedly commits an offence.
Except in Queensland, where the cut-off age is 17, those
who are under 18 when they commit an offence are dealt
with in the juvenile justice system up until they turn
21;2 those who are over 18 when they commit an offence
are dealt with in the adult criminal justice system. The
one exception to this is in NSW where young people
who are old enough to hold a drivers licence or permit
are dealt with for traffic offences in the adult Local
Courts. However, where the young person has allegedly
committed other offences related to the traffic offence/s,
all offences may be dealt with in the Childrens Court.
However, those under 18 who allegedly commit serious
offences may be tried in the adult courts (in NSW, either
the District or Supreme Courts), and under certain
conditions may be transferred between Juvenile Justice
Centres and adult Correctional Centres (gaols).
The system is also closely linked to the welfare system
because many of the children who are in the child
protection system are also in the juvenile justice system.
From the late 1980s juvenile justice has been the subject
of considerable debate and change. One of the most
important changes in this period was the introduction
of legislation that specifically regulates the diversion
of young offenders from both court and custody.
overview 1
 MAJOR JUVENILE JUSTICE LEGISLATION AROUND AUSTRALIA 3
nsW Children (Criminal Proceedings) Act 1987

Childrens Court Act 1987

Children (Community Service Orders) Act 1987

Children (Detention Centres) Act 1987

Children (Interstate Transfer of Offenders) Act 1988

Children (Protection and Parental Responsibility) Act 1997

Young Offenders Act 1997

Crimes Act 1900

Bail Act 1978

act Children and Young People Act 2008

Crimes (Restorative Justice) Act 2004
Rehabilitation of Offenders (Interim) Act 2001
Crimes Act 1900, pt 10 (Criminal investigation) and the Crimes Act 1914 (Cth), pt 1C (which
applies in relation to the investigation of certain ACT offences)
Magistrates Court Act 1930 (in particular Chapter 4A (The Childrens Court))
Supreme Court Act 1933
Court Procedures Act 2004 (in particular pt 7A (Procedural provisions proceedings involving
children or young people))
Crimes (Sentence Administration) Act 2005 (in particular Chapter 8A (Sentencing young
offenders) and Chapter 14A (Sentence administration young offenders))
Bail Act 1992

Victoria Children, Youth and Families Act 2005

Crimes Act 1958

Sentencing Act 1991

Bail Act 1977

Queensland Child Protection (Offender Reporting) Act 2004

Childrens Court Act 1992
Youth Justice Act 1992 (newly amended effective March 2010)
Youth Justice Regulations 2003
Young Offenders (Interstate Transfer) Act 1987
Bail Act 1980

Western australia Childrens Court of Western Australia Act 1988

Child Welfare Act 1947

Court Security and Custodial Services Act 1999

Inspector of Custodial Services Act 2003

Sentence Administration Act 2003

Young Offenders Act 1994

Young Offenders Amendment Act 2004

Bail Act 1982

south australia Bail Act 1985

Criminal Law (Sentencing) Act 1988
Family and Community Services Act 1972
Young Offenders Act 1993
Youth Court Act 1993

tasmania Youth Justice Act 1997

Youth Justice Amendment Act 2003

Youth Justice Regulations 1999

northern territory Youth Justice Act 2005

Youth Justice Regulations 2005

3. Juveniles contact with the criminal justice system in Australia, K Richards, Monitoring Report No. 7, Australian Institute of Criminology, 2009,

p 23; available at www.aic.gov.au

2 HOT TOPICS 73 > Young people and crime

Some jurisdictions have introduced separate legislation
for this purpose,4 while others have incorporated
diversionary schemes into existing legislation.5 Victoria
has not introduced separate legislation, and reserves
the use of youth justice conferences for young people
appearing in court who have a long history of offending
and would otherwise be sentenced to custody.6 The
ACT introduced separate legislation in 20047 that
regulates the use of restorative justice processes for both
adults and children.
Juvenile justice is volatile, subject to sudden change
on the basis of political imperatives which are often
associated with elections, and the felt need to be seen
to be acting in a particular geographical area or in
response to a particular highly publicised incident
involving children or young people. Youth crime is an
easy target for politicians who wish to be seen to be
doing something in the face of (usually unsubstantiated)
evidence of increases in offending by young people.
> UN Convention on the Rights of the Child (CROC),
which provides the foundations for childrens rights
and contains four guiding principles:
1. non-discrimination (article 2);
2. the best interests of the child (article 3);
3. survival and development (article 6); and
4. participation in decision making (article 12).
CROC also contains principles which are persuasive
in Australian courts when sentencing young offenders.
In particular, CROC enshrines the principles that the
imprisonment of children must be a measure of last
resort and that a variety of other appropriate measures,
including diversion and the use of restorative justice,
should be available for children, and that the focus of all
measures for dealing with children who are alleged to
have broken the criminal law should be on rehabilitation
(articles 37 and 40). For more information on CROC
see page 4.

INTERNATIONAL LAW AGE AND CRIMINAL RESPONSIBILITY

International law recognises that children and young
people should be treated differently from adults in
the criminal justice system. A separate juvenile justice
system provides safeguards to protect children and
young people, based on international rules for the
administration of juvenile justice.
The primary international instruments relevant to
juvenile justice to which Australia is a signatory are:
> United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (the Beijing
Rules) which includes provision that there should
be a system for children, separate from adults; that
detention should be a last resort and for the shortest
possible period of time;
> United Nations Guidelines for the Prevention of
Juvenile Delinquency (the Riyadh Guidelines)
which provides for the implementation of social
policies for crime prevention;
> UN Rules for the Protection of Juveniles Deprived
of their Liberty, which cover the importance of
maintaining contact with family and community,
respect for dignity and the elimination of arbitrary
treatment; and
One of the most difficult areas of criminal justice policy
lies in providing appropriate cut off points to reflect
the transition from the age of innocence through to
maturity and full responsibility under the criminal law.
Consistent with international instruments to which
the Commonwealth Government is a signatory,8 in all
Australian jurisdictions the minimum age of criminal
responsibility is 10 years. The law, however, recognises
that children mature at different rates, so that children
aged between 10 and 14 are presumed to be incapable
of forming the relevant intent to commit a crime,
unless the prosecution can prove that they knew what
they were doing was seriously wrong, and not merely
naughty. This presumption, known as doli incapax, is
applicable in all Australian jurisdictions. The maximum
age at which a young person who is alleged to have
committed an offence can be dealt with in the juvenile
justice system is 17 years, except in Queensland where
the maximum age is 16 years.
selected other special protections in criminal
proceedings against children
> Any statements or admissions made to the police by
child are inadmissible in court unless an independent
adult was present when the statement or admission
was made.

4. Young Offenders Act 1993 (SA), Young Offenders Act 1994 (WA), Young Offenders Act 1997 (NSW).
5. Juvenile Justice Act 1994 (Qld), Youth Justice Act 1997 (Tas).
6. For a detailed analysis of diversionary legislation, see, Kids, cops, courts, conferencing and childrens rights, J Bargen in Children on the
agenda: The rights of Australias children, M Jones and L A Basser Marks (eds), Prospect Publishing, 2001.
7. Crimes (Restorative Justice) Act 2004 (ACT).
8. International instruments suggest but do not stipulate that the minimum age should be 10 years. Rather, State parties are encouraged to set
a higher age of criminal responsibility. In the UK, the age of criminal responsibility is 10, but in other European countries, the minimum
age is much higher for example, in Sweden the minimum age is 17. For discussion and information about the varying ages of criminal
responsibility for children, see The globalization of crime controlthe case of youth and juvenile justice: Neo-liberalism, policy convergence
and international conventions, J Muncie (2005) 9(1) Theoretical Criminology, pp 35-64.

overview 3
 > All offences (except very serious offences) are heard
in specialist Childrens (or Youth) Courts which are
usually closed to the public for privacy reasons, and
which are conducted with (arguably) less formality
than adult criminal proceedings.
> A child under the age of 16 years found guilty of an
offence in the NSW Childrens Court cannot have
a conviction recorded against them.9 In contrast,
in Victoria, whether or not a conviction is recorded
depends on the nature of the sentence imposed
by the Childrens Court. For lesser sentences such
as undertakings and good behaviour bonds, no
conviction is recorded. For greater sentences, such
as fines, probation and supervision, the court has
a discretion whether or not to record a conviction.
Where the sentence is a Youth Attendance Order or a
custodial order (either to a Youth Residential Centre
or a Youth Justice Centre) the court must record a
conviction.10
SNAPSHOT OF NSW YOUNG OFFENDERS
Children and young people under the age of 18 who
are involved in the juvenile justice system constitute
a relatively small proportion of the child and youth
population of NSW. Juvenile Justice NSW records
indicate that, in 2008-09, for every 1000 people aged
10-17 resident in NSW:
> 13.5 had a criminal matter finalised in the Childrens
Court;
> 11 were convicted and/or sentenced in these finalised
matters;
> 3.3 were given sentences requiring the department to
supervise them in their community; and
> 1.0 was sentenced to detention.
The available data suggest that anywhere between one in
10 to one in four persons with whom police have contact
as alleged offenders are children aged between 10 and
17 years. Approximately one-fifth of all alleged young
offenders are female. The majority are male and aged
between 15 and 17 years.

THE CONVENTION ON THE RIGHTS OF THE CHILD (CROC)11

this convention establishes that children are entitled, not only to the same human rights as everyone else, but also
to special rights which recognise their youthfulness and vulnerability.
the convention came into force on 2 september 1990 when 20 countries had lodged their formal document of
ratification with the un secretary-general. australia was one of the first countries to become a party to cRoc after
it came into force. the australian government ratified the convention in December 1990 and it became binding on
australia in January 1991.
cRoc has now been ratified by more than 190 countries worldwide and has thus received greater support than any
other human rights instrument in the history of the united nations.
cRoc is not the first united nations convention to speak of the rights of children. there was a geneva Declaration
on the Rights of the child in 1924 and this was followed by a Declaration on the Rights of the child proclaimed by
the general assembly of the un in november 1959. the 1959 Declaration (like its earlier counterpart) was a short
document containing only ten principles, most of which were adapted from the earlier universal Declaration of human
Rights of 1948. the 1959 Declaration included in its preamble the notable principle Mankind owes the child the best
it has to give.
child is defined in article 1 of cRoc as every human being below the age of 18 years. For convention purposes, a
person ceases to be a child on his or her 18th birthday.
Ratification of cRoc involves the acceptance of various obligations including:
> to make cRoc, by appropriate and active means, widely known in australia by both children and adults: article 42;
> to ensure the rights in the convention are available to each australian child: article 2.1;
> to take all appropriate legislative, administrative and other measures in order to implement the rights set out in the
convention: article 4;
> to report to the un committee on the Rights of the child regularly on progress made in ensuring children enjoy in
practice the rights given to them under the convention; and
> state and territory governments are bound by the convention. there is doubt, however, as to the extent to which
the Federal government (which is responsible to the united nations as the signatory to cRoc) can force states and
territories to comply with requirements of cRoc. the Federal government has limited power to override state and
territory legislation. there is also doubt over whether the convention is binding on lower levels of government, such
as local authorities.
For more information on human rights generally, see Hot Topics 65: Human Rights.

9. Children (Criminal Proceedings) Act 1987 (NSW), section 14.

10. Children, Youth and Families Act 2005 (Vic), section 360(1).
11. Taken from Whats Up CROC? National Childrens and Youth Law Centre website, www.ncylc.org.au

4 HOT TOPICS 73 > Young people and crime

Children and young people may also be dealt with by
fine or infringement notice. NSW Bureau of Crime
Statistics Research data indicate that just over 40% of
all children and young people who commit offences
are dealt with in this way. Non-payment of fines can
result in large accumulated debts to the State Debt
Recovery Office, which most children and young people
are unable to pay. In 2009, the NSW Government
introduced alternatives for children and young people
who are unable to pay such debts (see Fines and young
people, page 10).
It is widely accepted that juveniles are more likely to
come to police attention than adults. In addition to
committing public and attention-seeking crimes and
acting in groups, juveniles tend to be inexperienced and
unplanned, commit offences close to their homes and
offend in visible areas, such as shopping centres.12
The opportunistic and impulsive nature of offending
by children and young people is often compounded by
mental health problems and substance misuse. Juvenile
Justice NSW has undertaken health surveys of children
and young people on community and control orders.
The major issues identified in these surveys were that for
these children and young people:
> they often had a parent who was or had been in prison
(43% and 27% for the custody and community groups
respectively);
> 11% of the community group had unsettled
accommodation;
> a small but significant number of both groups were
parents themselves;
> many had been subject to physical and/or sexual abuse
and/or neglect;
> ear infections and mild loss of hearing were common
but more so for the girls than the boys in both
groups;
> most had left school early or been suspended from
school. 75% of the custody group had left school
before finishing year 9, and 56% of the community
group had left before commencing year 10;
> IQ scores (using culture fair tests) were in the low
average range for both groups;
> problems with reading, spelling and arithmetic were
common to both groups;
> the majority of the custody group (88%) and 40% of
the community group reported symptoms consistent
with a clinical mental health disorder; and
12. See Juvenile Justice: Youth and Crime in Australia, C Cunneen and R White, 3rd ed, 2007 Oxford University Press, at p 56; and Youth &
society: exploring the social dynamics of youth experience, R White and J Wyn, Oxford University Press, 2nd ed., 2008, p 161.
13. Juveniles in Detention in Australia, 1981-2007, N Taylor, Monitoring Report No. 5, Australian Institute of Criminology, 2009, available at
www.aic.gov.au/publications/current%20series/mr.aspx
14. Juveniles contact with the criminal justice system in Australia, K Richards, Monitoring report no. 7, Australian Institute of Criminology, 2009.
15. All the right moves? Police move-on powers in Victoria, J Farrell, Alternative Law Journal 34 (1) January 2009; pp 21-26.
> 19% of the boys and 24% of the girls in the custody
group, and 14% of the boys and 32% of the girls in
the community group had considered attempting
suicide.
indigenous over-representation
It is widely recognised that Indigenous young people
are significantly over-represented in the juvenile justice
system in Australia, in police custody and in juvenile
detention centres. Across Australia, Indigenous young
people are approximately 28 times more likely to be
in detention than non-Indigenous young people.13
For more detail see Disadvantaged young people on
page 25.
types of offences
Typically, children and young people come into contact
with police in relation to property crimes. Less than
one-fifth of offences committed by children are crimes
against the person.
Young people tend to commit offences in groups more
frequently than adults. This is related to the spontaneous
and gregarious nature of most juvenile offending.
Whether police record numbers of arrests, offences or
offenders is therefore likely to be of greater significance
where children rather than adults are concerned. If
police record arrest events rather than numbers of
offenders, for example, the true number of children
involved is likely to be obscured.
Some offences committed disproportionately by juveniles,
such as motor vehicle theft, have high reporting rates
due to insurance requirements. Some behaviours (such
as drinking alcohol) are illegal precisely because of the
age of juveniles.14
As indicated earlier, broad legislative or policy changes
can disproportionately impact upon children and young
people. An analysis of police move on powers15 clearly
demonstrates, for example, that the introduction of
these powers has disproportionately affected particular
groups of citizens, and in particular, children and young
people (also see page 8).
Nearly all children who appear in court plead or are
found guilty, but the overwhelming majority (92%),
receive a non-custodial penalty. The rate of children and
young people held in custody was declining and then
stabilised to just under 800 children and young people
held in custody nationally per day. This is a very small
number when compared with adult prisoners, of whom
there are about 20,000 serving a term of imprisonment.
overview 5
 However, the daily average number of children and While supervising young offenders, either in custody or
young people in custody is now on the rise, principally in the community, Juvenile Justice provides rehabilitation
due to the increasing remand numbers that have flowed programs aimed at reducing the risk of a young persons
from changes to bail laws, particularly in NSW (see re-offending behaviour and assist them in addressing
Juveniles on remand, page 17). their underlying issues.
The agency also provides funding to a number of
JUVENILE JUSTICE IN NSW community agencies that give assistance to juvenile
A wide variety of government and non-government offenders and their families. For more information and
agencies are engaged in juvenile justice work. In NSW, current data on the work of Juvenile Justice NSW see
the NSW Police Force is responsible for the apprehension www.djj.nsw.gov.au.
of alleged young offenders, diversion of eligible and
entitled young offenders under the Young Offenders
Act, and commencing proceedings against children in
the Childrens Court. Specially trained police act as
prosecutors in the Childrens Court. Police also operate
youth crime prevention programs in many parts of
NSW. The Attorney General has overall responsibility
for youth crime prevention, the management and
maintenance of the NSW Childrens Court, and is
also responsible for the overall operation of the Young
Offenders Act. Legal Aid NSW operates a specialist
Childrens Legal Service (CLS) in Metropolitan Sydney.
Lawyers from the CLS represent and advise children
appearing in criminal matters in the specialist Childrens
Courts at Parramatta, Bidura (Glebe), Campbelltown,
and Wollongong. They also provide legal advice to
young people in police custody through the free Youth
Hotline, and to children and young people in Juvenile
Justice Centres through the Visiting Legal Service,
which is partly funded by Juvenile Justice. Legal Aid
NSW also pays private lawyers to represent children
in specialist Childrens Courts and in all Local Courts
sitting as Childrens Courts in rural and regional NSW.
Communities NSW (formerly the Department of im age u n av aila ble
Community Services) works with many clients who
are also under the supervision of Juvenile Justice,
and a court can request Communities NSW to find
accommodation for these children when they appear in
court for criminal matters. Juvenile Justice NSW (now
in the amalgamated Department of Human Services) is
responsible for the operation of youth justice conferences,
and for the supervision of children on community and
control (detention) orders. Juvenile Justice works with a
wide range of other government and non-government
agencies in providing services to children and young
people in trouble with the law. The relevant government
agencies include Ageing, Disability and Home Care and
Aboriginal Affairs. Juvenile Justice NSW is the largest
juvenile justice agency in Australia, but one of the
smallest agencies in the NSW bureaucracy.

Skateboard rider, Martin Place, Sydney, NSW Australia.

J Eastman, DWSPL

6 HOT TOPICS 73 > Young people and crime

 Police and
young people
Legislation introduced since the mid-1990s in
nsW has significantly increased police powers
in relation to public order. the issue is an
important one for children and young people.
as significant users of public spaces, young
people are more likely to be subject to police
intervention through increased police powers
and public order offences.
The difficult relationship between young people and
police has been well documented over the years. There is
a wealth of research and literature on the subject.16
Negative contact over the use of police powers can lead
to police charging young people with further offences,
such as the three offences known colloquially as the
trifecta:
> resist arrest;
> assault police; and
> offensive language.
Most police powers in NSW are now covered by the
Law Enforcement (Powers and Responsibilities) Act 2002
(LEPRA), which commenced in late 2005.
SEARCHES
Police may stop and search a person if they suspect on
reasonable grounds that the person is carrying:
> prohibited drugs;
> stolen goods;
> something about to be used to commit an offence; or
> a knife or other dangerous implement.17
Reasonable suspicion can be difficult to define, but
must be more than just a hunch or a general prejudice
towards certain groups of people.
As the NSW Supreme Court has said, there must be
some factual basis for the suspicion and it must not be
arbitrary. For example, the fact that some young men
were driving a car late at night, and the police received
16. For a summary, see Juvenile Justice: Youth and Crime in Australia, C Cunneen and R White, 3rd ed, Oxford University Press, 2007, Chapter 9,
Policing the Young.
17. Law Enforcement (Powers and Responsibilities) Act, sections 2 and 27.
18. Streat v Bauer; Streat v Blanco, NSW Supreme Court, 16 March 1998.
19. Law Enforcement (Powers and Responsibilities) Act, sections including 21A and 30-33.
20. Policing Public Safety, NSW Ombudsman, November 1999; www.ombo.nsw.gov.au/show.asp?id=389
some intelligence that they might be involved in some
unspecified offending, was not sufficient to justify the
police stopping them. Further, the fact that the young
men strongly objected to being searched did not give the
police any reasonable grounds to suspect that they may
be in possession of something illegal.18
Police may conduct a search without reasonable suspicion
with the consent of the person. Consent is a particularly
tricky issue where young people are concerned, because
police will often ask a young person to submit to a
search without telling them they have the right to refuse.
If a young person consents to a search in the belief that
they are under compulsion, this may not be genuine
consent and the search may be unlawful.
Depending on the situation, police may conduct different
types of searches,19 including:
> a frisk search, which involves patting down the person
and may include running a metal detector over the
person and their belongings
> an ordinary search which may include requiring
a person to empty their pockets and remove outer
clothing such as a hat or jacket
> asking the person to open their mouth or move or
shake their hair; or
> a strip search, which should only be done if police
believe it is necessary for the purpose of the search
and if required by the seriousness or urgency of the
circumstances.
Police must follow rules to protect a persons privacy and
dignity during the search.
The NSW Ombudsmans Policing Public Safety report,
published in 1999, examined the use of police powers to
search for knives and dangerous implements. The report
found that 42 per cent of people searched for knives or
weapons were juveniles. The majority of these searches
were unproductive compared to searches of adults,
which were more likely to result in a knife or weapon
being found.20
police and young people 7
 The Ombudsman has also conducted a limited review of
the personal search powers in LEPRA. A report published
in February 2009 made some recommendations aimed
at making search powers more easily understood, and at
improving the protection of the privacy and dignity of
people being searched. The Ombudsman commented:
These are common police powers, the exercise of
which affects the lives of many people in NSW every
day. The rules governing the exercise of these powers
must therefore be clear and practical to ensure
effective law enforcement and the proper protection
of civil rights.21
SNIFFER DOGS FOR DRUG DETECTION
Since 2001, police in NSW have been authorised to
use dogs for general drug detection in public places
including licensed premises, sporting and entertainment
venues, public transport routes including trains and
stations, and (with a warrant) other public places.22
The law requires police to keep the dog under control
and to take all reasonable precautions to ensure the
dog does not touch people. Police have no power to
detain people for the purpose of general drug detection.
CASE STUDY APPROPRIATE
SUPPORT PERSON
seventeen year old Johnny phung was suspected
of committing an armed robbery and fatal shooting.
police arrested him and conducted two interviews
while he was in custody. in these interviews phung
made admissions about his involvement in the
offence.
When phung was charged and brought to court,
Justice Wood refused to admit the interview
transcripts, finding that the police had acted
improperly by not providing an appropriate support
person for phung.
the support person in the first interview was
phungs 21 year-old cousin, who did not have
strong english, and was himself intimidated by the
police. the second support person was a salvation
army officer, who was a stranger to phung and did
not have any opportunity to talk to him privately.
Justice Wood found that neither support person
had been able to properly support phung. in
particular, they did not seem to appreciate the
seriousness of the charges and they did not give
phung any advice or guidance about his right to
remain silent or to obtain legal advice.
R v Phung and Hunyh [2001] NSWSC 115; available at
www.austlii.edu.au/au/cases/nsw/NSWSC/2001/115.html
21. Review of certain functions conferred on police under the Law Enforcement (Powers and Responsibilities) Act 2002, NSW Ombudsman, May 2009;
www.ombo.nsw.gov.au/show.asp?id=523
22. Law Enforcement (Powers and Responsibilities) Act, sections 145-150, formerly Police Powers (Drug Detection Dogs) Act 2001.
23. Review of the Police Powers (Drug Detection Dogs) Act 2001, NSW Ombudsman, June 2006; www.ombo.nsw.gov.au/show.asp?id=431
24. Law Enforcement (Powers and Responsibilities) Act, Part 14, formerly Summary Offences Act, section 28F.
8 HOT TOPICS 73 > Young people and crime
However, if a dog indicates that it has detected a scent
on a person, this may give the police reasonable grounds
to suspect that the person is in possession of a prohibited
drug. The police are then empowered to search the
person and detain the person while the search is being
carried out.
The NSW Ombudsman reviewed the Drug Detection
Dogs legislation and published its report in 2006. The
Ombudsman expressed a number of concerns, including
that drug detection dogs appeared to be targeting small
time recreational drug users rather than suppliers.
There were also serious privacy concerns arising from
the police practice of recording personal details of the
people they searched, even when drugs were not found.
The Ombudsman made a number of recommendations,
including recommending that the Government should
consider discontinuing use of dogs for general drug
detection in public places.23
MOVE-ON DIRECTIONS
In 1998, police were given powers to issue move
on directions in public places. This law, with some
amendments, is still in force.24
A police officer may give a direction to a person in a
public place to prevent:
> the obstruction of other people or traffic;
> harassment or intimidation of other people;
> fear in other people (although it is not actually
necessary for there to be anyone else present at the
time); and
> the selling or buying of illegal drugs.
The direction must be reasonable in the circumstances to
reduce or eliminate the problem behaviour. A direction
banning a person from an area for a short period, may
be reasonable, but a direction banning a person from a
large area, or for a long period such as seven days, would
probably be unreasonable.
When giving directions, police must provide certain
information and, unless the person is already complying
with the direction, must warn the person that failure to
comply may be an offence. It is an offence to disobey a
reasonable direction without a reasonable excuse.
The NSW Ombudsmans Policing Public Safety report,
published in 1999, examined the use of directions.
Among the findings were that 48 per cent of all
directions were issued to people under 18, with the
peak age being 16. In the Ombudsmans opinion, about
50 per cent of the directions were issued for reasons
outside the scope of the relevant legislation; for example,
because people were begging, in a high crime area, or
simply had no reason to be there.25
The report also found that there was a very high
use of move-on powers against Aboriginal and Torres
Strait Islander people, who made up 22 per cent of
people given move-on directions, even though they only
represented 1.9 per cent of the population in NSW.26
ARREST
Police may arrest a person for the purpose of commencing
criminal proceedings, if they suspect on reasonable
grounds that the person has committed an offence.27
However, criminal proceedings may be commenced
without arrest (eg by giving the person a field court
attendance notice). Under the Law Enforcement (Powers
and Responsibilities) Act, arrest is a last resort.
Police must not arrest a person unless they suspect on
reasonable grounds that arrest is necessary to:
> ensure the person appears at court;
> stop the offence from being continued or repeated, or
another offence being committed;
> prevent evidence being concealed, lost, destroyed or
fabrication of evidence;
> prevent the harassment of, or interference with, any
potential witness; and
> preserve the persons safety or welfare.28
Police also have the power to arrest a person for
breaching their bail conditions.29 In this situation, there
is no legislative provision saying that arrest is a last resort.
It is therefore lawful for police to arrest young people
even for very minor breaches of bail conditions.
SAFEGUARDS RELATING TO
POLICE POWERS
When exercising their powers, police must:
Support people have a role in assessing whether the
> provide evidence that they are police (being in uniform
investigation is being conducted reasonably, identifying
is sufficient);
> give their name and station;
> give the reason for the exercise of the power; and
> in some situations where failure to comply is an
offence, warn the person that they may be committing
an offence if they fail to comply.30
DETENTION AFTER ARREST
If police have lawfully arrested a person for an offence,
they may detain the person for a reasonable time for the
purpose of investigating the offence. This period must
25. Policing Public Safety, NSW Ombudsman November 1999; http://www.ombo.nsw.gov.au/show.asp?id=389
26. Australian Bureau of Statistics: 2001 Census data for NSW available at www.abs.gov.au
27. Law Enforcement (Powers and Responsibilities) Act, section 99.
28. Law Enforcement (Powers and Responsibilities) Act, section 99(3).
29. Bail Act, section 50.
30. Law Enforcement (Powers and Responsibilities) Act, section 201.
31. Law Enforcement (Powers and Responsibilities) Act, Part 9.
32. Law Enforcement (Powers and Responsibilities) Regulations.
not exceed four hours, unless it is extended (for up to
eight hours) by a warrant from an authorised justice.31
A person may actually be in police custody for much
longer than four hours, because certain periods are
regarded as time out (eg time spent communicating
with a support person or lawyer, to arrange medical
attention, to allow the person to sober up).
People who are detained for the purpose of investigation
have certain rights including to contact a friend or
relative, to contact a lawyer and have them attend the
police station, to have an interpreter if necessary, access
to bathroom facilities and the provision of reasonable
refreshments.
Each police station has an officer (usually a sergeant)
who performs the role of custody manager. The custody
manager must provide people under arrest with a
summary of their rights, and must also keep detailed
records of people being held in detention.
SPECIAL PROTECTION FOR YOUNG
PEOPLE IN POLICE CUSTODY
The Regulations provide special protection for certain
vulnerable people, specifically:
> young people under 18;
> people with intellectual or physical disabilities;
> Aboriginal people and Torres Strait Islanders; and
> people of non-English speaking backgrounds (in
certain cases).32
Vulnerable people are allowed to have a support
person present during any investigative procedure (eg
questioning). Young people under 18 cannot waive this
right and must have a support person present during
investigations.
communication issues and assisting a child to assert
their rights.
Possible support people include:
> a parent, guardian or other person who has the care of
the child;
> an adult (not a police officer) who is there with the
consent of a parent, guardian or carer;
> if the child is 14 or over, an adult (not a police officer)
who has the childs consent to be there; or
> a lawyer chosen by the child.
police and young people 9
 As well as ensuring there is an appropriate support future. However, fines have little or no deterrent value
person present, the custody manager must assist a child for people with no means to pay. Importantly, the aim of
to exercise his or her rights, including the right to make rehabilitation (which is the primary consideration when
a telephone call to a legal practitioner. dealing with offences committed by young people) can
be undermined by imposing fines.
SPECIAL PROTECTION FOR YOUNG Enforcement of unpaid fines is governed by the Fines
PEOPLE DURING POLICE QUESTIONING Act 1996 (NSW) and is carried out by the State Debt
A person suspected of committing an offence has the
Recovery Office (SDRO). Fines that are not paid by the
right to silence. This means a suspect does not have to
due date (or within such extra time as may be allowed)
answer police questions (except providing their name
are referred to the SDRO for enforcement action, which
and address in some situations, and certain other
includes:
information in the case of traffic offences).
> suspension or cancellation of the fine defaulters driver
If a child chooses to participate in a police interview,
licence;
whatever they say cannot be used against them in court
> cancellation of vehicle registration;
unless:
> RTA customer business restrictions, which means
> there is an independent adult present during the
the Roads and Traffic Authority can refuse to issue
interview (this will usually be the same person who licences, transfer vehicle registrations, etc;
is fulfilling the role of support person at the police > civil enforcement, including garnishee orders (forcibly
station); or taking money directly from the fine defaulters pay or
> the court believes there was proper and sufficient savings) and property seizure orders;
reason for the absence of an independent adult, and > community service (but only after the SDRO has
that it is appropriate for the evidence to be used exhausted all efforts to get the fine defaulter to pay the
against the child in court.33 fine); and
> imprisonment (as a last resort, and only for adults).
FINES AND YOUNG PEOPLE A fine defaulter can avoid enforcement action by paying
For many young people, fines are a gateway into their fines, either in a lump sum or by instalments, but
the criminal justice system. Police Officers and other this is often of little assistance to young people who
officials (eg transit officers and council rangers) have already face serious financial difficulty.
the power to issue infringement notices (also known as
The impact of the fine enforcement system on young and
penalty notices or on-the-spot fines) for a wide range of
disadvantaged people has been discussed in numerous
minor offences.
submissions and papers by legal and advocacy groups
Young people commonly receive fines for offences such as the Homeless Persons Legal Service and the
such as travelling on a train without a ticket, riding a Shopfront Youth Legal Centre,35 and in reports from
bicycle without a helmet, disobeying a police direction, bodies such as the NSW Sentencing Council.36
unlicensed driving or driving an unregistered vehicle.
Young people are particularly affected by the SDROs
These fines can range from as little as $20 (for possessing
power to suspend driver licences (or prevent people from
alcohol in public) to several hundred dollars (in the
getting their licence). This happens at an early stage in
case of traffic offences). It is not uncommon for young
the enforcement process and can be difficult to reverse
people, especially those who are disadvantaged, to incur
unless the young person makes regular payments or
several thousand dollars worth of fines.
has a good understanding of other options for dealing
Figures from the NSW Bureau of Crime Statistics and with their fines. In these circumstances, young people
Research show that 541,689 infringement notices were are often tempted to drive unlicensed, incurring further
issued in 2009, which is the equivalent of one fine for fines and court-imposed disqualification periods which
every 13 people in NSW. About 32 per cent of these often extend several years into the future.
were issued to 14-24 year olds.34
For people who continue to drive while they are
The effectiveness of fines as a penalty lies in their disqualified, imprisonment is also a real possibility.
deterrent value, in discouraging similar behaviour in the NSW criminal court statistics show that court

33. Children (Criminal Proceedings) Act 1987, section 13.

34. Young people (aged 14-24) represented approximately 15% of the population of NSW in 2009 (from the Australian Bureau of Statistics
publication 3201.0 Population by Age and Sex, Australian States and Territories, Jun 2009).
35. Not Such a Fine Thing, Homeless Persons Legal Service, April 2006, http://www.piac.asn.au/publications/pubs/fines_20060404.html; and
various submissions prepared by the Shopfront Youth Legal Centre, www.theshopfront.org/25.html
36. The effectiveness of fines as a sentencing option: court-imposed fines and penalty notices http://www.lawlink.nsw.gov.au/Lawlink/scouncil/
ll_scouncil.nsf/pages/scouncil_publications

10 HOT TOPICS 73 > Young people and crime

appearances for driving licence-related offences
increased from 7641 in 1994 to 18,943 in 2005. The CASE STUDY LEGAL AID
number of people sentenced to imprisonment for such YOUTH HOTLINE
offences rose from 443 to 1027 in the same period.37 in the past, when a child asked to speak to a
While there could be other factors responsible for this lawyer, police had sometimes just given them a
increase, the fine enforcement regime is thought to be a telephone book and told them to look one up, often
major contributor. outside business hours.

in the case of R v ME and LT (unreported supreme

In recent years, the Fines Act has been amended several
times to make the system more flexible and to reduce the
hardship faced by disadvantaged people. Amendments
include:
> accepting payment of instalments via Centrepay
(payments directly from Centrelink benefits);
> guidelines for officers to issue cautions instead of
fines; and
> Work and Development Orders (WDOs). WDOs
were introduced in 2009 on a two-year trial basis,
and are a way for disadvantaged people to pay off
their fines by doing unpaid community work or
developmental activities such as courses, counselling
or treatment.38
court, 3 october 2002), the court found that
this was not good enough, and that the custody
manager must inform the child about the free Legal
aid Youth hotline (tel 1800 101 810) and help them
to access it.
in this case, Justice Dowd said (at 38):
Young people aged 17 rarely have a solicitor and
rarely have a contact number for one available. it
is as absurd as suggesting they might contact their
architect or dietary advisor. the whole intention
of the hotline is that young people would know it
is free, that it is available, and that they would be
able to obtain advice there and then. Failure to
make it available is a clear breach of the act and
regulations but, more importantly, in breach of the
requirement of fairness to the young person.

im age u n av aila ble

NSW police officers questioning two youths in Macquarie Fields, Sydney in 2005. An accident involving a stolen car
which killed two young passengers sparked four days of riots in the suburb.
Kate Geraghty, Sydney Morning Herald

37. NSW Bureau of Crime Statistics and Research, summary of criminal court statistics, www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/
pages/bocsar_lc_05
38. State Debt Recovery Office WDOs, http://www.sdro.nsw.gov.au/lib/docs/forms/sdr037.pdf

police and young people 11

 Children in court
one of the distinguishing features of a juvenile
justice system is the establishment of separate
childrens courts and principles to guide
the courts. childrens courts deal with most
offences committed by children under 18 years
of age at the time of the offence.
THE CHILDRENS COURT
In NSW, the jurisdiction and procedure of the Court
is covered by the Childrens Court Act 1987 (NSW) and
the Children (Criminal Proceedings) Act 1987 (NSW). In
metropolitan Sydney, Wollongong, the Central Coast
and Newcastle there are specialist Childrens Courts. In
regional and rural NSW, the Local Court constitutes
itself as a Childrens Court whenever a criminal or care
case relating to a child is being heard, and the special
rules apply.
Childrens Courts are different from other courts in that
they are:
> Closed to the public. The public are excluded from
Childrens Court proceedings. People other than
relatives and friends, court staff, lawyers and police
directly involved in the case can only enter the
courtroom if allowed by the magistrate or judge; and
> The media are entitled to be present in the court
unless the magistrate or judge directs otherwise.
However, the name or anything that could identify
a child involved in proceedings may not be published
without the consent of the child (if he or she is 16
years or over) or the consent of the court (if the child
is under 16).
These two rules are to protect the identity and
privacy of the young person as part of the principle
that rehabilitation and re-integration back into the
community are a priority.
Other characteristics of the separate Childrens Court
include:
> less formal proceedings (for example, lawyers remain
seated while addressing the magistrate rather than
standing); and
> a requirement that the court ensure the child
understands the nature of the proceedings and is able
to be heard and to participate.
39. Children (Criminal Proceedings) Act 1987 (NSW), section 6.
12 HOT TOPICS 73 > Young people and crime
PRINCIPLES OF JUVENILE JUSTICE
In NSW, courts must apply the following principles
when dealing with children in criminal cases:39
> 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 affect them;
> children who commit offences bear responsibility for
their actions but, because of their state of dependency
and immaturity, require guidance and assistance;
> it is desirable, wherever possible, to allow the
education or employment of a child to proceed
without interruption;
> it is desirable, wherever possible, to allow a child to
reside in his or her own home; and
> 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.
When it comes to sentencing in particular, the principles
that apply in the Childrens Court are different from the
sentencing principles that apply in the adult courts.
The most important of these is the principle that
rehabilitation must be the primary aim in sentencing a
young offender rather than the principles of retribution
or general deterrence which may demand more serious
penalties. The Childrens Court aims to promote
rehabilitation through the use of community-based
orders such as good behaviour bonds, probation and
community service orders, or special programs like the
Youth Drug and Alcohol Court.
The United Nations Convention on the Rights of the
Child (CROC) also establishes principles which are
persuasive in Australian courts when sentencing young
offenders, as Australia is a signatory to CROC. These
include:
> the best interests of the child is paramount in decisions
made affecting the child (article 3); and
> imprisonment of children must be a measure of last
resort and a variety of other appropriate penalties
should be available to children, with a focus on
rehabilitation (articles 37 and 40).
For more detail see International law on page 3.
YOUTH DRUG AND ALCOHOL COURT
The Youth Drug and Alcohol Court (YDAC) is, after
11 years, still a pilot program that was established on
31 July 2000, following a recommendation made by the
1999 NSW Drug Summit. A young person who satisfies
the eligibility criteria for YDAC may be referred to this
sentencing option by the specialist Childrens Courts
(Bidura, Campbelltown and Parramatta).
The YDAC is a collaborative project between the
Childrens Court of NSW, the NSW Police Force, Legal
Aid NSW and four government agencies Juvenile
Justice, Justice Health, Community Services, and the
Department of Education. These last four agencies each
have representatives on the Joint Assessment and Review
Team (JART), and, in collaboration with the YDAC
Magistrate and the young person, make the treatment
decisions that constitute the order of the court.
Young people who are accepted on the YDAC program
generally do not spend time in custody, but remain in
the community and are given 6-12 months to complete
the program. Program plans are tailored towards the
individual and often include a residential rehabilitation
component.
Any young person who meets the eligibility criteria set
out the YDAC Practice Note 1 may be referred to the
program. These criteria state that the young person
must:
im age u n av aila ble
Jack Hollingsworth, Corbis
40. See www.lawlink.nsw.gov.au/youthdrugcourt and then go to the Evaluation section.
> have entered a plea of guilty to or been found guilty
of all charges against him or her (all sex offences are
excluded from the YDAC program);
> have a demonstrable drug and/or alcohol problem;
> have been aged between 14-18 at the time of the
commission of the offence;
> have committed and offence that can be dealt with to
finality within the Childrens Court;
> reside in, have committed the offence in, or otherwise
identify with the greater Sydney Metropolitan area;
and
> be ineligible to be dealt with under the Young Offenders
Act 1997.
Upon successful completion of the program, the
young person is given a non-custodial sentence and no
conviction is recorded against their name. If they fail to
complete the program, the young person is sentenced in
the usual way.
The NSW Attorney Generals Department commissioned
a consortium from the University of New South Wales,
led by the Social Policy Research Centre (SPRC), to
evaluate the pilot programs operations over the two years
to the end of July 2002. The SPRC report is available on
the Youth Drug and Alcohol Court website.40
[The section on the Youth Drug and Alcohol Court was written by Sarah Crellin,
Solicitor, Legal Aid NSW.]
children in court 13
 Diversionary

schemes

all australian states and territories now have
diversionary schemes (alternatives to court) for
young offenders, although there are significant
differences in the way each of these schemes
operate. 41
YOUNG OFFENDERS ACT (NSW)
In the 1980s and 90s, police and other agencies in New
South Wales experimented with a number of informal
alternatives to court. In April 1998, the Young Offenders
Act 1997 (YOA) became law. The YOA introduced a
graded diversionary scheme of police warnings, formal
cautions, and youth justice conferences for young
offenders, designed to divert a significant majority of
young offenders from the courts. The only offences
that must go to court are those that cause death, sexual
assault offences, serious drug offences and a small
number of other offences.42
The YOA includes the principles that young people who
have committed an offence are entitled to be dealt with
in the least restrictive and most appropriate way, and
that criminal proceedings should not be started if there
is an alternative and appropriate way of proceeding.43
By law, when police arrest a young person, they must
first consider whether a young person is eligible and
entitled to be diverted. In practice, however, police often
decide not to use the YOA. Instead, an alleged young
offender will be given strict bail conditions (see section
on bail) and sent to the Childrens Court.
Police must tell young people that they are entitled to
obtain legal advice and where they can get that advice
before they admit to an offence or agree to a caution
or a youth justice conference. A Young Offenders
Legal Hotline has been available for this purpose since
December 1998. Lawyers from the Childrens Legal
Service of NSW Legal Aid provide telephone advice to
all young people in police custody for 24 hours a day on
weekends and public holidays, and between 9am and
midnight on other days.
YOUTH JUSTICE ADVISORY COMMITTEE
A Youth Justice Advisory Committee was established
soon after the YOA became law in 1998. Members
were drawn from both government and community
organisations. YJAC was responsible for reporting to the
Attorney General on the way the Act was working, and
for overseeing the evaluation of the first three years of
the operation of the Act. The Committee was abolished
in 2008, when section 70 of the YOA was repealed.
WARNINGS
Under the YOA, police officers can decide to give young
people warnings for minor offences that do not involve
violence. A warning can be given at any time or place,
and the young person does not have to admit the offence.
The police officer who gives the warning must record
the time, place, the offence, and the offenders name
and gender. The officer must ensure that the young
person understands why he or she has been warned. The
fact that someone has previously been given a warning
does not automatically mean that they cannot be given
another warning for a later offence.
HOT TIP
a warning is the least serious option for an
offence. Warnings are quick and informal, and
are issued on the spot. police use warnings for
summary offences (minor offences), which dont
involve violence. if you are given a warning you
dont get any penalty, or a criminal record, but the
police record your name and other details so that
if you commit a later offence they can find out if
youve already been given one or more warnings.

41. See Restorative Justice and Conferencing in Australia, K Daly and H Hayes, Trends and Issues in Crime and Criminal Justice Number 186,
Australian Institute of Criminology, Canberra, February 2001, for an overview of the use of restorative justice in all Australian jurisdictions.
See also Kids, courts, cops, conferencing and childrens rights a note on perspectives, J Bargen, in Children on the Agenda: the rights of
Australias children, M Jones and L A Basser Marks (eds), Prospect Media, Sydney, 2001.
42. See Young Offenders Act 1997 (NSW), section 8.
43. International instruments to which Australia is a signatory specify that court should be the option of last resort for young offenders: Article
37(b), UN Convention on the Rights of the Child.

14 HOT TOPICS 73 > Young people and crime

 CAUTIONS YOUTH JUSTICE CONFERENCES
Under the YOA police officers may give a formal caution
Under the YOA, young offenders who admit an offence
for more serious offences if the young person admits the
to which the YOA applies can be referred to a youth
offence and consents to a caution. A young person can
justice conference. A police officer or a court can refer a
be given no more than three cautions, although a single
young person to a conference.
caution can be given for more than one offence.44

If the arresting police officer considers that it is not

When deciding whether to give a caution the police
appropriate to give the young person a caution, they
officer must consider whether the offence is one for
must refer the matter to a trained specialist police youth
which a caution can be given, and then consider:
officer, who can decide to refer the matter to a youth
> the seriousness of the offence;
justice conference.
> the degree of violence involved;
In making this decision, the specialist youth officer
> the harm caused to any victim;
must consider whether the offence is one for which a
conference can be held, and then consider the same
> the number and nature of any previous offences

factors as for a caution.

committed by the young person; and
> any other matter that the police officer thinks is Conferences are considered by many to be progressive
appropriate in the circumstances. because they recognise the rights of young offenders,
their victims, their families and members of their
HOT TIP community to decide what to do about the harm
caused by the young persons actions. They also provide
a caution can be given for more serious offences than a forum for discussing and addressing many of the
for a warning. Like warnings you do not get a criminal complex issues associated with young peoples offending.
record, but police do keep full details of the caution,
The aim of a conference is to provide a supportive
which can be taken into account if you re-offend.
environment for the young person to acknowledge and
accept responsibility for any harm caused by the offence,
Cautions can be given by police officers, specialist
for the victim/s to express how they have been affected
police youth officers or respected members of the young
by the offence, and for the participants in the conference
persons community. Courts can also caution a young
to develop a plan designed to repair the harm through a
person.
process of consensus.
In addition to the person giving the caution and the
Youth justice conference administrators are based in
young person, others can be present at the caution,
Juvenile Justice Community Offices throughout NSW,
including:
and are responsible for the local administration of the
> a person responsible for the young person;
scheme in defined geographic areas that are matched
> members of the young persons family;
with the Police Local Area Commands with which they
> an adult chosen by the young person;
work.
> a respected member of the community chosen by the
Conference administrators are responsible for recruiting
young person; and training youth justice conference convenors.
> an interpreter; Convenors are people who are selected from the
community and trained on the basis of their common
> an appropriately skilled person, if the young person
sense, understanding of issues related to youth crime,
has a communication or cognitive disability;
knowledge and understanding of victims issues, and
> a social worker or other professional, if the young group work skills.
person is under child welfare order;
Convenors are responsible for deciding where and when
> a supervising officer, if the young person is on
the conference will be held and who should be invited
probation or community service order; and
to attend. In preparing for the conference, the convenor
> if they are not giving the caution, the police officer must take into consideration any specific needs of the
who arrested the young person. young person and any victims who agree to participate
Following a caution, the young person can be asked to in the conference. They must also attempt to obtain the
write an apology to any victim/s of the offence, but no views of anyone who has been invited but is unable to
other conditions or penalties may be imposed by the attend.
person giving the caution. Where practicable, the conference should be held within
28 days of the referral, although most conferences take

44. Young Offenders Act 1997 (NSW), section 20(7).

Diversionary schemes 15
 place at least a month after the referral has been received,
partly because of the extensive work the convenor must
do in preparation for the conference.
In keeping with their community-based philosophy
and purpose, youth justice conferences cannot be held
in police stations, court houses or Juvenile Justice
Community Offices.
In addition to the convenor and the young person, their
family, the victim/s and their supporters, professionals
who have a prior relationship with the young offender,
interpreters, police officers, and the young persons
lawyer may participate in a conference.
The conference begins with introductions from everyone
and an explanation of how they have been affected by
the young persons offence. The victim and offender
each tell their stories, after which the convenor will ask
for suggestions on how the offender can make good
the harm they have caused. An outcome plan for the
offender is discussed by everyone, and must be agreed
to by both the offender and victim/s. The outcome plan
can be creative, but must be realistic and achievable,
and no more severe than any order a court might have
imposed for a similar offence in similar circumstances.
Each outcome plan is different, but may include:
to remain significantly over-represented.
> unpaid work for the victim;
evaluation
Research has found that the YOA has reduced the number
of young offenders appearing in court. Participants in
youth justice conferences prefer conferences over court.
Most conference participants consider that outcome
plans are fair for victims.45
Re-offending studies by the NSW Bureau of Crime
Statistics and Research found that youth justice
conferences are an effective way of reducing juvenile
crime. Re-offending rates for young people who are
cautioned are generally lower than for those who
participate in a conference, and both are lower than for
young people who go to court.46
A Report on the Review of the Young Offenders Act 1997 by
the NSW Attorney Generals department was tabled in
parliament on 24 June 2004.47 This report incorporates
research on the operation of the Act by the NSW Bureau
of Crime Statistics and Research, and by Professor Janet
Chan of the University of NSW.48
Professor Chan found that the probability of an
Aboriginal first offender being taken to court fell by
almost 50 per cent between 1998 and 2001. However,
she also found that young Aboriginal offenders continue

> unpaid community work;

> giving back stolen items;

> a verbal or written apology;

> a training course; and

> counselling.

If a young person satisfactorily completes an outcome

plan, no further action can be taken against him
or her for that offence. If this does not happen, the im age u n av aila ble
administrator will return the matter to the police (or
court), which then deals with the young person as if the
conference had not occurred.

NSW Police Service

45. An Evaluation of the NSW Youth Justice Conferencing Scheme, L Trimboli, NSW Bureau of Crime Statistics and Research, Sydney, 2000.
46. Reducing Juvenile Crime: Conferencing versus Court, G Luke and B Lind, Crime and Justice Bulletin Number 69, NSW Bureau of Crime
Statistics and Research, April 2002; Reoffending among young people cautioned by police or who participated in a youth justice conference,
S Vignaendra and J Fitzgerald Crime and Justice Bulletin Number 103, NSW Bureau of Crime Statistics and Research, 2006.
47. See www.lawlink.nsw.gov.au/lap.nsf/files/Young_Offenders_Act_review.pdf/$FILE/Young_Offenders_Act_review.pdf
48. See Regulating police discretion: An assessment of the impact of the NSW Young Offenders Act 1997 J Chan, J Bargen, G Luke and G
Clancey, (2004) 28(2) Criminal Law Journal 72-92. See also Reshaping Juvenile Justice: the NSW Young Offenders Act, J B L Chan (ed), Sydney
Institute of Criminology, Sydney, 2005.

16 HOT TOPICS 73 > Young people and crime

 Juveniles
on remand
an increasing number of children and young
people in new south Wales are being held on
remand in the states juvenile justice centres.
This is due to current policies that make it unnecessarily
difficult for children and young people to access bail.
This results in children and young people remaining in
detention on remand when they should be on bail in the
community.
HOT TIP
What is remand?
a child or young person is considered to be on remand
when they are in detention but have not yet been
sentenced.
What is bail?
Bail is an agreement to attend court on a specific
day. this bail can either be set as unconditional or
conditional where the child or young person must
abide by specific conditions.
CHILDREN AND YOUNG PEOPLE
> 30% of young people in custody in 2003 were or had
LOCKED IN THE SYSTEM
been under the care of the Minister for Community
As the table indicates, the number of young people
admitted to custody on remand has been steadily
increasing. Currently, per day, the total remand
population is over 50 per cent of the total number of
young people in detention.
2004 2005 2006 2007 2008 2009
Young people 3255 3444 3623 4263 5081 4634
admitted to
custody on
remand
(Figures from NSW Auditor-General 2009)
However, only one in five, or 21 per cent of children and
young people on remand will go on to receive a custodial
penalty at sentencing.49 Therefore, in 2009 there were
approximately 3700 children and young people who
were placed on remand in a juvenile justice centre that
a court judged were not required to serve a custodial
49. NSW Department of Juvenile Justice, 2009.
50. 2003 NSW Young People in Custody Health Survey, Key Findings Report, NSW Department of Juvenile Justice, p 13.
sentence. This means that the vast majority of children
and young people are spending time unnecessarily in a
detention centre.
WHO ARE THE CHILDREN AND
YOUNG PEOPLE ON REMAND?
Children and young people in out-of-home care,
Aboriginal and Torres Strait Islander children and
young people, and children and young people from
regional areas are all over-represented in the juvenile
justice system.
> almost 50% of the children and young people on
remand are under 16.
> around 80% of the children and young people on
remand are male.
> 1657 or 35.8% of the children and young people on
remand in 2009 were Aboriginal or Torres Strait
Islander.
> 88% of the children and young people in custody
report symptoms consistent with mental illness (NSW
Department of Juvenile Justice 2009).
Services.50
HOT TIP: WHAT IS A CUSTODIAL
PENALTY?
a custodial penalty, also known as a custodial
control order, is when a young person is found
guilty of an offence and is ordered by the court to
serve their sentence in a juvenile justice centre.
WHY IS THIS HAPPENING?
A number of factors are contributing to the rise in
children and young people held in detention on remand.
These include current difficulties in finding suitable
accommodation for children and young people awaiting
finalisation of their court matters, changes to the Bail
Act 1978 and restrictive bail conditions that are closely
monitored by police.
Juveniles on remand 17
 As a result of these factors, many children and young
people on remand are held there simply because they are
homeless, they do not have family supports that are close
by, their family home is not safe or they find it difficult
to meet their bail conditions.
Lack of suitable accommodation
When a child or young person who is homeless or in
need of care is charged with a criminal offence they are
often given an order as part of their bail conditions to
reside as directed by Community Services.*51
* Note: Community Services was previously known as the
Department of Community Services (DoCS). It is now
located within the Department of Human Services.
CASE STUDY SAMANTHA
in 2005, while under the care of the department,
i went into custody [on remand] at a Juvenile
Detention centre in sydney. i was granted bail
however i was not allowed to leave because Docs
[now known as community services] did not have a
suitable placement for me. i told Docs i could stay
at my partners house but Docs wouldnt let me
and gave me no reason. While i was in jail i had no
contact from Docs. i stayed in jail this time for about
3-4 months until i went to court. By this time i had
turned 18. i was again given bail. i walked out of jail
and had nowhere to go and no support from Docs.
ace aftercare placed me into a motel for a week
until a vacancy was available in a womens refuge.

This means that the court believes that the young person this was not the first time i was in this situation
will be unable to meet bail conditions if they return to while in care, it happened about 10 times from the
their usual place of residence, either because they are age of 14 until i turned 18 years old and left care.

homeless, or have accommodation which is unstable or
unsafe. The court therefore requests that Community
Services find appropriate accommodation for the child
or young person. The court is not proposing that the
child or young person be remanded in custody.
However, in many cases the reside as directed order
effectively turns into an order to remain on remand
as Community Services is frequently unable to find
acceptable placements for these children and young
people.52 The Children and Young Persons (Care and
Protection) Act 1998 makes it clear that Community
Services has responsibilities to these children and young
people who are homeless or in need of care. Section 9(e)
of the Children and Young Persons (Care and Protection)
Act 1998 states:
If a child or young person is temporarily or permanently
deprived of his or her family environment, or cannot
be allowed to remain in that environment in his or
her own best interests, the child or young person is
entitled to special protection and assistance from the
State.
However, despite Community Services clear
responsibility to these children and young people, the
lack of suitable accommodation options results in a
high rate of remand for children and young people who
should be out on bail in the community.
Statistics from the Department of Juvenile Justice
demonstrate that 95 per cent of children and young
people on remand during a three-month period in
2006/07 had a court order to reside as directed.53
these experiences were not only confusing for me
but made me feel horrible and that i had no rights
at all.
new restrictions in the Bail act and a stretched
Legal aid system
NSW Attorney-General, John Hatzistergos,
acknowledges that New South Wales has the toughest
bail laws in Australia.54 In 2007 the Bail Act 1978 was
amended with the introduction of section 22A. Under
the Bail Act children and young people can only apply
once for bail except under particular circumstances. If
bail is not granted during the first application they may
only apply again if they were not legally represented
during the first application or if the court is satisfied that
new facts or circumstances have arisen since the first
application.
A recent report by the NSW Bureau of Crime Statistics
and Research demonstrates that these changes have
directly impacted on the increase in remandees in
custody as children and young people are remaining on
remand for a longer period of time, unable to reapply
for bail.55
Exacerbating these new amendments is a stretched Legal
Aid system where on a bad day one magistrate and one
duty solicitor may be dealing with 50 bail cases.56 In
this situation, a child or young person is not guaranteed
sufficient representation by the duty solicitor despite it
being their only opportunity to access bail.

51. Homes for homeless children, M Dambach, Alternative Law Journal, vol 32, no.3 September 2007.
52. Homes for homeless children, M Dambach, Alternative Law Journal, vol 32, no.3 September 2007; Report 104 (2005) Young offenders,
NSW Law Reform Commission.
53. Special Commission of Inquiry into Child Protection Services in NSW 2008.
54. Attorney-General Mr Hatzistergos, Legislative Council Second Reading Speech, Hansard, Parliament of NSW, 17 October 2007.
55. Recent trends in legal proceedings for breach of bail, juvenile remand and crime, S Vignaendra, S Moffatt, D Weatherburn and E Heller, NSW
Bureau of Crime Statistics and Research, Contemporary issues in crime and justice no.128, 2009.
56. New Bail Laws 2008 s.22A Bail Act 1978, A Haesler SC, a seminar paper presented to the NSW Criminal Defence Lawyers Association,
16 April 2008 available at www.lawlink.nsw.gov.au/lawlink/pdo/ll_pdo.nsf/pages/PDO_newbaillaws2008

18 HOT TOPICS 73 > Young people and crime


CASE STUDIES
as per the NSW State Plan, has impacted on the number
BREACHED BAIL CONDITIONS
of children and young people on remand.59 These orders
At the grocery store
the young person was not to go within 50 metres of
the victim. the victim saw the young person while he
was waiting in his fathers car, while his father shopped
in a grocery store. the young person was arrested for
breaching his bail condition.
Mother with mental illness
a bail curfew prohibited the young person from visiting
his mother who had mental health issues. the young
person visited his mother after she contacted him
threatening to commit suicide if he did not visit. he
went to his mothers house and was breached for not
complying with his curfew.
Bail Me Out: NSW Young People and Bail, K Wong, B Bailey & D Kenny, Youth Justice
Coalition, 2010.
Bail restrictions: non-association orders,
reporting, area restrictions and curfews
Another group of children and young people are granted
bail but end up back on remand in the Juvenile
Justice Centres because their bail restrictions include
non-association orders, area restrictions, curfews and
other restrictions that are extremely challenging for the
children and young people to comply with. Even if a
child or young person is able to obtain bail, they can
find themselves back in the Juvenile Justice Centre after
being found in breach of a bail restriction.
The bail restrictions may require that the child or young
person may not associate with another young person
who attends their school or lives in their community. As
a result the bail requirements can have a serious impact
on the child or young persons schooling and ability to
Proactive policing of compliance with bail conditions
reflect targets under the previous NSW State Plan which
sought a reduction in re-offending by 10 per cent by
2016 and stated that this would be achieved through
extended community monitoring of those at high risk
of re-offending, through more random home visits and
electronic monitoring.
However, severe bail restrictions and proactive policing
may effectively criminalise the young persons non
offending behaviour and create conditions where the
child or young person is more likely to re-offend.
WHAT ARE THE CONSEQUENCES?
It is clear that the current policies are likely to compound
rather then alleviate juvenile crime in New South Wales
and that the high remand rate can result in a number
of consequences on both the internal operations of the
Juvenile Justice Centres and on the children and young
people on remand.
As the average daily number of young people in custody
has increased from 264 in 2002-03 to 427 in 2008
09, allegations of overcrowding and increased assaults
suggest that the increase has had a serious impact on the
safety of both staff and the children and young people.
450
400
350
300
250

engage with the community.57 200

The Aboriginal Justice Advisory Council submitted 150

evidence to the NSW Law Reform Commission that: 100

50
[i]n one location in 52% of decisions where bail was
granted a condition of that bail was the defendant 0
2002- 2003- 2004- 2005- 2006- 2007- 2008
leave the town and not return until they were 2003 2004 2005 2006 2007 2008 2009
required to appear at court. This was specifically the Average daily number of young people in custody
case for juvenile defendants. (NSW Department of Juvenile Justice 2006;
NSW Department of Juvenile Justice 2009)
Report 104 (2005) Young offenders, p 253.

The NSW Bureau of Crime Statistics and Research
found that in 66 per cent of cases where children and
young people are remanded back to a Juvenile Justice
Centre after breaching their bail restrictions, their
breach as simple as not complying with a curfew order or
not being in the company of a parent.58
In 2009, the media in NSW released several articles
reporting on safety concerns and overcrowding, including
a 30 per cent increase on the number of assaults on staff
and young people and up to four young people being
housed together in an overflow room.60

57. Report 104 (2005) Young offenders, NSW Law Reform Commission.
58. See footnote 55.
59. Annual Report 2007-2008, NSW Ombudsman, Chapter 6 Juvenile Justice at p 120, available at http://www.ombo.nsw.gov.au/publication/
PDF/annualreport/AR_Ombo_07-08.pdf
60. For example, Juvenile detention assaults blamed on overcrowding, A Clennell, SMH, 10 April 2009; Crowded juvenile injustice: young
450Crowding blamed for alleged rape at juvenile jail, A Clennell & D
offenders crisis, J Hildebrand, Daily Telegraph, 30 March 2009; and
Welch, SMH, 12 March 2009. 2008-2009
400

350 2007-2008
Juveniles on remand 19
300 2006-2007
250
2005-2006
 Another concern is the impact that the proportion of
children and young people on remand compared to the
proportion on a custodial order can have on program
development within the juvenile justice centres. As
previously mentioned, the total number of children and
young people on remand per day is over 50 per cent of
the total number of children and young people in the
NSW Juvenile Justice Centres. This proportion is higher
in some centres as it varies between locations. A higher
number of children and young people on remand than
on custodial order has the potential to shift the focus
in Juvenile Justice Centres away from programs and
development towards security warehousing as more
resources are directed towards the remandees.61
Unnecessary detention also increases the challenges that
children and young people face and potentially creates
social problems. The NSW Law Reform Commission
expressed its concern with the effect of remand on a
child or young person:
Children report feeling isolated and frustrated by
the experience, particularly as they often do not have
access to the same programs as detainees serving a
sentence. In addition, placing a child on remand can
put stress on family relationship and disrupts the
childs education. Young people on remand feel that
they are often treated as if they have already been
found guilty.
Report 104 Young Offenders, p 231
Furthermore, a recent report by the National Indigenous
Drug and Alcohol Committee (2009) expressed concerns
that the high incarceration rate of Aboriginal and Torres
Strait Islanders is damaging Indigenous communities.
Considering that 35.8% of all children and young people
on remand are Aboriginal or Torres Strait Islander,62 the
high remand rate is having a huge impact on Aboriginal
communities in NSW.
Of greatest concern however, is that research indicates
that time in a juvenile justice centre is the most
significant factor in increasing the odds of recidivism.63
Considering only one out of every five remandees in New
South Wales will receive a custodial order at sentencing,
thousands of children are being unnecessarily exposed
to an environment that can have a detrimental effect
on their future life chances, and a higher number of
children and young people are at risk of cycling through
the prison systems.
61. See footnote 55, at p 170.
62. Annual Report 2008-2009, NSW Department of Juvenile Justice, at p 28.
63. The dangers of detention: the impact of incarcerating youth in detention and other secure facilities, B Holman & J Ziedenberg, Justice Policy
Institute, 2006, at p 4. www.justicepolicy.org/images/upload/06-11_REP_DangersOfDetention_JJ.pdf
64. Bridges and barriers: Addressing Indigenous incarceration and health, National Indigenous Drug and Alcohol Committee, Australian National
Council on drugs, 2009; www.nidac.org.au/images/PDFs/nidac_bridges_and_barriers.pdf
20 HOT TOPICS 73 > Young people and crime
OTHER OPTIONS/SOLUTIONS
In early 2009, a group of peak organisations and service
providers from the community sector held a roundtable
discussion in order to develop solutions to the issues
identified above. Two papers Locked into Remand and
Releasing the Pressure on Remand, were developed by
UnitingCare Burnside as part of this process.
The roundtable members agreed that while children and
young people are responsible for their actions and should
face the penalty for any illegal actions, the current
system has the potential to increase the risk factors for
re-offending and does not always provide the support
children and young people need.
Young people can be successfully supported in making
changes at any point in their engagement with the
juvenile justice system. However, in order to effectively
divert young people from the juvenile justice system, a
range of support services must be available.
These support services should have a stronger focus on
keeping these children and young people connected with
the community, engaged with education and ultimately
out of the juvenile justice system, and in turn, the adult
prison system.
These support services should fall into four main areas:
> early intervention;
> before court;
> during court; and
> after court.
early intervention
Children and young people who are at risk of offending
should have immediate access to early intervention
services in NSW. These services should help the children
and young people re-engage with the community through
social, educational and vocational opportunities.
The report released by the National Indigenous Drug
and Alcohol Committee acknowledges the particular
importance of early intervention programs and successful
diversion within the Indigenous population in order to
stem the increase of Indigenous offenders.64
Before court
Children and young people who are charged with a
crime should have immediate, mandated support to
help them successfully navigate the legal system. Many
children and young people who are involved with the
juvenile justice system do not have strong family support
networks to lean on during this high stress period.
Mandated support could assist with finding appropriate
accommodation options and remain present during
the court process. This could result in a reduction
of the number of kids on remand and an increase in
the numbers of children and young people who can
successfully understand the court process and gain
realistic bail conditions.
The NSW Governments recent establishment of a
24-hour Bail Hotline, as part of the Keep Them Safe
reforms to the child protection system in NSW, has
the potential to be an integral part of the before court
support. While it is still too early to examine the impact
of the Bail Hotline on the numbers of children and
young people on remand, it is an important first step
to developing further services to assist children and
young people access bail, meet bail conditions and find
appropriate accommodation options.
During court
Children and young people have access to the Childrens
Legal Service when attending court. However, as
discussed previously, these services are often stretched
to capacity and place children and young people at risk
of receiving insufficient legal support. The current bail
laws, which govern bail applications from both children
and young people and adults, exacerbate this situation.
Children and young people should not be limited to
one chance at accessing bail as this restricts the rights
afforded to them under the International Convention of
the Rights of the Child. In order to place the safety and
wellbeing of children and young people at the forefront
of government policy, all children and young people
should be exempt from Section 22.A of the Bail Act.
after court
Juvenile justice centres should not be used as a form of
crisis accommodation for children and young people.
Alternate accommodation options should be available
for those children and young people who are granted bail
but held on remand due to insufficient accommodation
options. Support should also be available for children
and young people and their families who need
monetary assistance in order to meet bail conditions (ie
transportation costs).
More comprehensive community support and further
brokerage support should be available for those children
and young people who are granted bail under strict
bail conditions and are able to live in the community.
Furthermore, the strict bail conditions should be realistic
for children and young people to comply with and they
should be policed with a degree of flexibility.
alternate accommodation Residential Bail
support program
Through the discussions at the Roundtable meeting it
was clear that the area of greatest and most immediate
need is the gap in accommodation and support options
for children and young people.
The Roundtable members proposed that a Residential
Bail Support Program should be funded for children
and young people who are granted bail but remain
on remand due to a lack of accommodation options.
This is not a traditional bail house model but rather an
accommodation program providing 24 hour support
and case management for an average of 4-5 children and
young people.
This program would be available for those children and
young people for whom other forms of accommodation
cannot be found, such as accommodation with family
members. The program would be gender specific and in
some cases culturally specific. It would provide greater
links to community support and help to establish more
opportunities to build family ties.
If established the program would also increase the
currently limited accommodation options for children
and young people who receive reside as directed
orders and will increase the referral options in NSW,
particularly for the Bail Hotline. Furthermore it will
have significant cost-benefits and positive spill over
effects in the medium to long term as it will address
the challenges in NSW juvenile justice centres of
over-crowding and safety. It will also put downward
pressure on an overloaded system by reducing the risk of
recidivism, keeping children and young people in touch
with their families and communities and out of the
juvenile justice system.
This section on Juveniles on remand was written by Clare Blakemore of
UnitingCare Burnside. Burnside is a member of the Children, Young People
and Families service group of UnitingCare NSW/ACT and part of the Uniting
Church in Australia. Burnside is a leading child and family organisation in NSW,
with services for users in metropolitan, regional and rural communities.
Burnsides purpose is to provide innovative high-quality programs and
advocacy to break the cycle of disadvantage that affects vulnerable children,
young people and their families in NSW. Burnside has a strong history of social
justice and advocating for policy change and recently celebrated 15 years of
social justice advocacy.
Juveniles on remand 21
 Group Offending
if a person is present as part of a group and a
crime is committed by members of the group,
they risk being charged with that crime, even if
they did not play an active role in the commission
of the offence.
JOINT CRIMINAL ENTERPRISE
The area of law known as joint criminal enterprise
is commonly used to prosecute young people in the
Childrens Court. It applies across all offence categories
as part of the general body of criminal law, but is used
most frequently to prosecute for robbery offences, break
and enters and serious group assaults.
The test for whether someone was part of a joint criminal
enterprise to commit a certain crime is:
> if they were present during the commission of the
offence;
> that they knew what was going on, and
> there was an agreement or understanding between
members of the group to commit the offence.
If they are found to have acted as part of a joint criminal
enterprise, all members of the group are liable to be
charged with the same offence and liable for the same
penalty.
COMMON PURPOSE OR EXTENDED
JOINT CRIMINAL ENTERPRISE
What happens if a group of people agree to commit a
certain crime and during the commission of that offence,
things escalate and a further offence is committed? Who
is responsible? Are all members of the group accountable
if one person takes things too far?
If there is:
> an agreement between a group to commit a certain
offence (a joint criminal enterprise), and
> a further offence arises out of the original offence,
and
> that further offence was a foreseeable consequence of
the original offence
then each member of the group risks being charged for
this further offence as well as the original one. This area
of law is known as common purpose or extended joint
criminal enterprise.
22 HOT TOPICS 73 > Young people and crime
WORKSHOP SERIES AND SURVEY
Legal Aid lawyers working in the Childrens Court had
observed that many young people did not understand
the seriousness of group offences at law or the way that
the criminal law ascribes responsibility in a group crime
situation. Legal Aid responded to this lack of knowledge
by running a major workshop series in high schools,
youth centres and refuges, involving approximately 3500
young people and youth workers in 2007.
survey results young people, group violence
and complicity
As part of the 2007 workshop series, approximately 600
young people were surveyed on the law of complicity
and robbery offending. In summary:
> approximately 79% of young people surveyed believed
a common assault was more serious legally than a
robbery in company;
> only 22% of young people understood that each person
present and willing to assist during the commission of
a robbery offence would be charged as a principal;
> perhaps of greatest concern, when given a typical
group assault scenario where a victim later dies as a
result of an injury inflicted by one member of the
group, 55% of young people were certain that only the
individual who caused that injury would be charged
with murder, and the others were only guilty of an
assault; and
> when asked to describe an armed robbery, most young
people described an armed hold up of commercial
premises, such as a bank or store. When given a typical
robbery in company scenario, and asked to name the
offence, the vast majority of school participants would
name offences such as stealing, or stealing plus
intimidation. In fact, young people typically mixed
up the offences of stealing, break and enter, and
robbery and often used the terms interchangeably.
Workshop focus
The main focus of the workshop series was juvenile
robbery offending. The core objectives were to explain
to young people that the crime commonly referred to
as rolling was in fact robbery, that these were serious
offences and that they can be charged for merely
remaining present during these offences under the laws
of joint criminal enterprise.
The workshop series also touched on serious group
assaults and what happens when one crime escalates to
another. This involved an exploration of the penalties
for offences of violence, the concept that the penalties
increase significantly depending on the severity of the
injury, and more importantly, that under the laws of
joint criminal enterprise and common purpose everyone
involved in a group assault can be held criminally
responsible for those injuries, irrespective of whether
they physically caused them.
group behaviour and criminal responsibility
Many of the young people who participated in workshops
were initially reluctant to accept the broader values
reflected in the laws of complicity. The principles
and values around group responsibility embedded in
the relevant legal doctrines were perceived as unfair,
counter-intuitive and quite contrary to the values of
the young participants. Many participants expressed
the view that they should only be held responsible for
their own physical acts, not the acts of others. These
perceptions translate to other areas of offending, and
cause similar misunderstandings.
example 1 Section 154A Crimes Act NSW 1900
Taking a conveyance without consent of owner.
In relation to the offence related to riding as a passenger
in a stolen car, many young people believed that if they
didnt steal the car themselves, they should not be held
criminally responsible.
example 2 Section 527C Crimes Act NSW 1900
-Persons unlawfully in possession of property. In relation to
the offence of having Goods in Custody, many young
participants expressed a belief that they could not be
charged unless there was proof of direct involvement in
stealing (or unlawfully obtaining) the goods.
In relation to assaults, many young people did not
realise that raising a fist at someone, or threatening to
hit someone, was an assault. Similarly, they did not
understand that spitting on someone was an assault.
Many young people believe that you can only be charged
with assault if you cause an injury to the victim.
peer loyalty and group behaviour
Themes also emerged around peer loyalty and group
behaviour, and the sense amongst many young people
that you should back up your mates no matter what,
and never snitch. These attitudes to friendship cause a
major barrier when trying to work with young people to
develop exit strategies from group offence situations.
Misperceptions about the childrens court
One of the other issues which emerged very clearly in
workshops was the perception that the Childrens Court
is universally lenient and the penalties for juveniles are
always lighter. This was specifically addressed by talking
about the limits of the Childrens Court jurisdiction and
explaining the concept of Serious Childrens Indictable
Offences.65
Young people need to understand that if they cross a
certain line, their offences are dealt with in the higher
courts, at law, and they potentially face the same
penalties as adults. This is particularly important in
the context of robbery offending and group assaults,
where the severity of injuries to the victim will often tip
the offence over that line into the SCIO category, and

assault, weapons and self defence

Several other core themes emerged around offences

of violence, including misunderstandings about the
law of self defence and what an assault actually is. In
relation to self defence, many young people believed
that it was legal to hit someone if they hit you first.
im age u n av aila ble
This reflected a conceptual confusion regarding the
principles of provocation and self defence, and believing
the former to be a legal defence to any crime of violence.
Similarly, many young people asked whether they were
allowed to carry weapons for self defence a concerning
question in light of the highly publicised and tough laws
surrounding possession of knives.

Richie Bowden

65. Section 3 & Regulation 4 Children (Criminal Proceedings) Act 1987 (NSW) outline the definition of a Serious Childrens Indictable Offence.

Young people and group offending 23

 increasingly, prosecution applications are being made
to have serious non-SCIO matters such as robberies
committed to the District Court. It is also the case
that the number of young people in custody in NSW
detention centres is increasing.66 Although this is not
necessarily linked to any shift in Childrens Court
Sentencing patterns,67 it dispels the myth about the
Childrens Court being a soft option.
THE BURN PROJECT
As there was a clear need for education in these areas,
Legal Aid NSW invested in the production of a film and
multimedia/web resource to educate young people and
correct these misconceptions.
The film is available on an interactive website
http://burn-movie.com.au/, and delivered to young
people in schools, youth centres and juvenile justice
facilities as part of a workshop package.
The primary purpose of the film Burn is to correct
misperceptions that young people have around:
> how the criminal law ascribes responsibility in a group
situation; and
> the seriousness of robbery offending.
The fictitious scenario depicted in the film illustrates
the application of the laws of complicity to a typical
juvenile robbery offence. Having an understanding of
the legal consequences of behaviours may influence
young peoples decision-making and reduce the risk of
offending.
Aside from trying to achieve a reduction in offending
through legal education, the film has a stand-alone
crime prevention utility as well. Burn provides a vehicle
for discussion on a range of issues around situational
risk factors associated with crime and the sort of chaotic
offending dynamics which quickly spiral and leave little
space for active decision making. In general terms, the
film provides a great forum for discussion about negative
peer associations, drug and alcohol use, choices and
responsibility.
suMMaRY oF the issues aDDResseD in
BURN
Burn is centred around a typical juvenile robbery
offence that escalates into a far more serious act of
violence. It depicts a typical night in the lives of four
teenage boys, cruising aimlessly around the suburbs in
a car which they have borrowed from a cousin for the
evening. Whilst consuming drugs and alcohol, they get
into a series of random near-miss type incidents which
66. Department of Juvenile Justice Annual Report 2006-07, page 18 Daily figures in custody indicates a steady increase over the last 5 years.
67. Increases in detention centre numbers may be associated with increases in the numbers of young people on remand, rather than those
sentenced to periods of detention.
68. R v Taufahema [2007] HCA 11; also see page 54 of the LIAC Crime Guide www.legalanswers.sl.nsw.gov.au ; McAuliffe [1995] HCA 37;
available at http://www.austlii.edu.au/au/cases/cth/HCA/1995/37.html and Tangye (1997) 92 A Crim R 545.
24 HOT TOPICS 73 > Young people and crime
culminate when they spot a potential victim who they
corner and roll at knife point. One offender instigates
the offence, the other two back him up, directing the
fourth young boy (who has unwittingly tagged along
for the night) to wait in the car and keep watch. The
offence goes pear-shaped when the armed offender drops
the knife, and another co-offender picks it up off the
ground and stabs the victim.
Some of the areas that the film is designed to address
are:
1. To educate young people that rolling is a robbery
offence and that robbery offences are serious crimes.
2. To educate young people that being present and
willing to assist during a robbery offence will usually
result in being charged as a principal offender under
the laws of Joint Criminal Enterprise.
3. To illustrate the application of the legal principles
of Common Purpose, where one offence escalates to
another.
4. To illustrate the application of the principles of
complicity to the various others who may end up
roped in, or provide some form of assistance in the
commission of an offence. For example:
> the person who is asked to stay in the car and
keep watch;
> the person who swaps clothes or drives the
offenders from the scene; and
> the person who owns the vehicle, and then is
charged for declining to give particulars of the
nominated driver/passengers.
The film explores the criminal liability and precarious
situation of persons who end up in these roles, and the
fact that young people sometimes agree to act in these
more peripheral roles (as a lookout for example) to keep
themselves out of the offence.
There are numerous factsheets on the Burn website
(www.burn-movie.com.au) on joint criminal enterprise,
common purpose, assisting in the commission of an
offence and group offending.
Some of the key cases on joint criminal enterprise and
common purpose are the cases of Taufahema, McAuliffe
and Tangye.68
 Disadvantaged

young people

it is now well-established that young people INDIGENOUS YOUNG PEOPLE

from disadvantaged backgrounds are over
represented in the juvenile justice system,
especially in juvenile detention centres.
Between 2003 and 2006, the NSW Department of
Juvenile Justice commissioned two major studies on the
health of young people in the juvenile justice system:
one on young people in custody (including young people
on remand as well as those sentenced to control orders)
and one on young people on community-based orders
(good behaviour bonds, probation, community service
orders, etc). Although these surveys focused primarily
on the health of young people in the system, the research
also looked at social and economic disadvantage among
young people in the system.69
This table provides a summary of some key findings
from both studies:
Aboriginal people have disproportionate contact
with the criminal justice system, as both victims and
offenders. Aboriginal children and young people are
over-represented at every point in formal juvenile
justice system responses in every Australian state and
territory, but generally under-represented in diversionary
responses.70
HOT TIP
a community service order is a court order which
requires a person to do a certain number of hours of
community work and should be a direct alternative
to a control order. a control order is an order made
by the childrens court which places a young person
in detention. a supervised order requires the young
person to have regular contact with the Department
of Juvenile Justice and to comply with directions.

Young people serving Young people serving

community orders custodial orders

Young people with one or more parents who had been imprisoned 27% 43%
Young people with one or more parents currently in prison 5% 11%
Young people with a history of being placed in care 24% 28%
Young people not living in family home 36% 33% (prior to custody)
Young people who were parents of one or more children 6% 10%
Young people with low, moderate or severe levels of abuse or 72% 68%
neglect in their childhood
Young people with a IQ scores consistent with a possible 12% 10%
intellectual disability
Young people leaving school before commencing Year 10 56% 75%
Young people who has been suspended from school 89% 91%
Young people with a IQ scores consistent with a possible 12% 10%
intellectual disability
Young people reporting symptoms on the Adolescent 40% 88%
Psychopathology Scale consistent with a clinical disorder

69. 2003 NSW Young People in Custody Health Survey, NSW Department of Juvenile Justice, http://www.djj.nsw.gov.au/pdf_htm/publications/g
eneral/2003YoungPeopleInCustody.pdf and D T Kenny, P Nelson, T Butler, C Lennings, M Allerton and U Champion. (2006) NSW Young
People on Community Orders Health Survey 2003-2006, University of Sydney, http://www.justicehealth.nsw.gov.au/pubs/YPCO_Report.pdf
70. See Diversion of Indigenous juvenile offenders, L Snowball, Trends and Issues in Criminal Justice No. 355, Australian Institute of Criminology,
Canberra, 2008

Disadvantaged young people 25

 Indigenous Australians represent approx 2.5% of the > providing non-Indigenous staff with appropriate
Australian population based on Australian Bureau cultural knowledge to work effectively with Aboriginal
of Statistics figures. In New South Wales, 11,049 young people;
Indigenous persons of interest aged between 10 and > supporting young people when on bail;

17 (17%) were recorded by police during the 200708

> extending referral of Aboriginal young people to

financial year, compared with 55,309 non-Indigenous

juvenile persons of interest (83%). Persons of interest
are those who have been apprehended in relation to an
offence(s) according to NSW Police data.71
The percentage of young people in NSW juvenile
detention centres who are Aboriginal or Torres Strait
Islander is alarmingly high at about 48 per cent. In
2008/09, Indigenous young people represented 37.5 per
cent of young people under community supervision,
28 per cent of young people attending a youth justice
conference, 35.8 per cent of young people remanded in
custody, and 48.5 per cent of all young people sentenced
to detention.72
Compared with non-Indigenous juvenile offenders,
Indigenous juveniles are more likely to be younger
when they commit their first offence and offend more
regularly than their non-Indigenous counterparts. As
a result, they are much more likely to have a history
of detention and incarceration by the time they reach
adulthood.73
As discussed in Juveniles on Remand, on page 17, there
is a huge impact on Aboriginal communities caused
by the high remand rate in NSW, including problems
of re-offending. A report released by the National
Indigenous Drug and Alcohol Committee acknowledges
the particular importance of early intervention programs
and successful diversion within the Indigenous
population in order to stem the increase of Indigenous
offenders.74
NSW Juvenile Justice has an Aboriginal strategic plan
for 2007-2011 to address the over-representation of
Aboriginal young people in the juvenile justice system
which aims to establish well coordinated and targeted
interventions that aim to provide improved responses
and better outcomes to Aboriginal and Torres Strait
Islander young people in NSW who are involved in with
the department. This includes:
> active recruitment and retention of Aboriginal staff;
youth justice conferences where appropriate.
For young people who are Indigenous, other areas of
disadvantage are compounded. For example, Indigenous
female juveniles were imprisoned at a rate of 24 times
that of non-Indigenous female juveniles in 2007.75
For Indigenous young people, who are already at a much
greater risk of contact with the criminal justice system,
adding cognitive disabilities and/ or mental health
issues into the mix increases the risk of contact with the
criminal justice system.76
NEWLY-ARRIVED YOUNG PEOPLE
Some young people who are recent arrivals to Australia
may have been exposed to extreme poverty, conflict
and violence in their country of origin. Many will have
spent extensive time in transit in other countries or in
refugee camps where life is unpredictable, physically
difficult and often violent. They will continue to feel
the impact of these experiences while settling in their
new country. These experiences have dramatic effects
on psychological wellbeing, family relationships, and on
adapting to a new environment.77
At the same time, young people who are refugees
or migrants experience similar concerns as other
young people around education and employment,
lack of recreation opportunities, and family and peer
relationships. For newly-arrived young people, these
everyday issues may be complicated by their histories
of upheaval and the process of adaptation to their new
environment.
There can also be problems with experiences of
discrimination where assumptions are made about
young people who stand out because they dress in a
particular way, or by their physical appearance. Peoples
experiences of discrimination and racial vilification in
Australian society are documented by the ISMA: Listen
project.78

71. Juveniles contact with the criminal justice system in Australia, K Richards, Monitoring report no. 7, Australian Institute of Criminology, 2009.
72. Based on average daily number of young people in custody statistics in NSW Juvenile Justice Annual Report 2008/09.
73. Overcoming Indigenous disadvantage: key indicators 2009, Steering Committee for the Review of Government Service Provision, Productivity
Commission.
74. Indigenous-specific alcohol and other drug interventions, D Gray, A Stearne, M Wilson & M Doyle, at p 80, National Indigenous Drug and
Alcohol Committee, Australian National Council on Drugs, 2010.
75. Summary of Indigenous womens health, J Burns, C M Maling, N Thomson, 2010; www.healthinfonet.ecu.edu.au/population-groups/women/
reviews/our-review
76. Preventing crime and promoting rights for Indigenous young people with cognitive disabilities and mental health issues, p 18, Australian Human
Rights Commission, 2008, available at http://www.hreoc.gov.au/social_justice/publications/preventing_crime/index.html
77. Multicultural youth in Australia: settlement and transition, Australian Research Alliance for Children & Youth October 2007; www.aracy.org.
au/publicationDocuments/TOP_Multicultural_Youth_in_Australia_Settlement_and_Transition_2007.pdf
78. Isma: Listen Experiences of discrimination, vilification and prejudice http://www.hreoc.gov.au/racial_discrimination/isma/report/chap2.
html#2_1

26 HOT TOPICS 73 > Young people and crime

humanitarian settlement in nsW
Currently, the most common countries of origin for
young people settling under humanitarian programs are
Burma, Iraq and Afghanistan. Over time, settlement
patterns change, for example, Sudan ranked seventh as
a source of settlers to Australia in 2005-06, compared
with ten years earlier when it ranked seventy-fifth. Of
the 12,100 settlers arriving under the Humanitarian
Program, North Africa and the Middle East (52%)
accounted for the greatest proportion, followed by sub-
Saharan Africa (27%) and central Asia (13%).79 Due to
protracted conflict in these regions, many newly arrived
young people have had little or no formal schooling and
have spent extended periods in refugee camps.80
A submission to the Community Relations Commission
Investigation into African Humanitarian Settlement in
New South Wales81 highlighted some of the issues for
young people from CALD (culturally and linguistically
diverse) backgrounds:
> young people often feel victimised, singled out and
targeted because of their appearance or ethnicity, by
authority figures believing they are in gangs or acting
suspiciously.
> African young people feel that they are the victims
of negative stereotyping and institutional racism
simply because of their physical appearance, and their
willingness to socialise with groups of other African
young people.
> young African people experience this negative
stereotyping, although incidents relating to African
youth engaging in anti-social behaviour are relatively
low.
Refugee and migrant young people often experience
difficulties with public and private transport. Many
young people live in areas not well serviced by public
transport, impeding access to services and recreation
activities.
Young people may have difficulty with the expense
of buying public transport tickets, and many report
difficult interactions with drivers and inspectors. Public
transport fines can escalate into increasing fines and
ultimately contact with the court system
79. ABS 1301.0 Year Book Australia, 2008
80. Settling in: exploring good settlement for refugee young people in Australia, K OSullivan & L Olliff, Melbourne Centre for Multicultural Youth
Issues 2006.
81. Non-English Speaking Background Youth Issues Network and the CSSS Youth Workers Network (joint submission)
82. Non-English Speaking Background Youth Issues Network and the CSSS Youth Workers Network (joint submission)
83. NSW Juvenile Justice Annual Report 2008/09.
The transit fine phenomenon in relation to young
Africans has been described as follows:
When African young people do encounter problems
with the law that result in fines, new waves of issues
arise out of this situation. Receiving fines places a
massive financial burden on refugee young people and
their families. These families may already have major
financial difficulties and worries, and this added
imposition of fines increases their anxiety and stress.
Being apprehended for transit offences, which are
largely minor and often unintended misdemeanours,
are often due to language difficulties or being mistaken
as being older than they actually are.
... African young people are often disadvantaged in
terms of giving verbal explanations at the time of
the offence and also in providing subsequent written
explanations. Anecdotal evidence suggests that
articulate English speakers are often not fined if they
provide a reasonable explanation, which is extremely
difficult for African and other refugee young people.
Furthermore, in the country of origin, African young
peoples experience of people in uniform tends to
be as persecutors and torturers. Therefore there is
an underlying feeling of distrust with all people
in uniforms, which exacerbates an already tense
relationship.82
YOUNG WOMEN OR GIRLS AND
JUVENILE JUSTICE
The vast majority of young people who have contact
with the juvenile justice system are male, paralleling
the situation among adults. However, more girls are
appearing before the Childrens Court than in previous
years, and Indigenous young women are significantly
over-represented.
In 2008/09, young women comprised 18 per cent of all
young people attending a youth justice conference, 14.7
per cent of those under community based supervision,
18.5 per cent of those remanded in custody, and 7.2 per
cent of those sentenced to detention.83
This reflects the fact that girls are less likely than boys
to commit serious and violent offences and are therefore
less likely to be sentenced to detention. However, the
comparatively high rate of young women on remand
indicates that girls are perhaps more likely than boys to
be refused bail for welfare reasons.
Disadvantaged young people 27
 In the 2008/09, on average, there were 31 young women
in custody on any given day in juvenile justice centres
in NSW. The young womens detention centre, Yasmar
at Ashfield, was replaced in 2005 with a new centre,
Juniperina at Lidcombe.
More young women (39 per cent) than young men (28
per cent) in juvenile justice centres have a background
of being in the care and protection system so welfare
issues are still more likely to have an effect on young
women ending up in custody.84 According to NSW
Juvenile Justice, a significant number of young women
in the juvenile justice system have a history of:
> sexual abuse;
The NSW Young People on Community Orders Health
Survey found that about 12 per cent of young people on
community-based orders had IQ scores consistent with
an intellectual disability.85
It is unclear what, if any, programs Juvenile Justice has
developed to address the needs of young people with
intellectual disabilities.
YOUNG PEOPLE WITH MENTAL HEALTH
ISSUES
A large number of young people in the juvenile justice
system have mental health problems. According to the

2003 NSW Young People in Custody Health Survey, 88

> neglect in childhood;
per cent of young people in custody reported symptoms
> family violence, either as a victim or a witness;
consistent with a clinical mental disorder. Thirty per
> one or more family members in custody;
cent reported high or very high psychological distress.
Nineteen per cent of males and 24 per cent of females
> mental health issues and alcohol and other drug

had seriously considered attempting suicide. Eight

problems within the family;
> contact with community services.
Historically, the framework for the design of institutions,
programs and research in juvenile justice has used a
male model. The experience of young women and girls
was often overlooked. NSW Juvenile Justice has worked
on developing services and programs tailored to young
women and girls.
Indigenous women and girls are vastly over-represented at
all levels of the criminal justice system see Indigenous
young people, page 25.
YOUNG PEOPLE WITH INTELLECTUAL
DISABILITIES
Young people with an intellectual disability are another
group of young people in the juvenile justice system who
are particularly disadvantaged. They are particularly
vulnerable in criminal justice processes from police
interventions, dealing with court processes and in
juvenile justice centres.
The NSW Young People in Custody Health Survey in
2003 estimated that approximately 10 per cent of young
people in detention have IQ scores consistent with an
intellectual disability. A further 30 per cent had scores in
the borderline range.
percent of males and 12 percent of females in custody
had attempted suicide in the previous 12 months.86
A similar survey conducted among young people on
community-based orders showed that 40 per cent
reported symptoms consistent with a mental disorder,
and 25 per cent had high or very high levels of
psychological stress. Fifteen per cent of males and 28 per
cent females had intentionally hurt themselves, 14 per
cent of males and 32 per cent of females had considered
attempting suicide, while 8 per cent of males and 18 per
cent of females had actually attempted suicide.87
Justice Health (a division of the NSW Department
of Health) provides a regular psychiatric service at
each NSW Juvenile Justice Centre. The Adolescent
Health Community Integration Team, which includes
staff from Juvenile Justice and Justice Health, works
to improve health outcomes for young people with
mental illness and/or alcohol and drug problems who
are leaving custody. Justice Health also provides a court
liaison service to provide assessments of young people
appearing at Childrens Courts.

84. 2003 NSW Young People in Custody Health Survey, NSW Department of Juvenile Justice, http://www.djj.nsw.gov.au/pdf_htm/publications/
general/2003YoungPeopleInCustody.pdf
85. NSW Young People on Community Orders Health Survey 2003-2006, University of Sydney, http://www.justicehealth.nsw.gov.au/pubs/
YPCO_Report.pdf
86. 2003 NSW Young People in Custody Health Survey, NSW Department of Juvenile Justice, http://www.djj.nsw.gov.au/pdf_htm/publications/
general/2003YoungPeopleInCustody.pdf
87. NSW Young People on Community Orders Health Survey 2003-2006, University of Sydney, http://www.justicehealth.nsw.gov.au/pubs/
YPCO_Report.pdf

28 HOT TOPICS 73 > Young people and crime

HOMELESS YOUNG PEOPLE AND
CHILDREN IN NEED OF CARE
Numerous reports have recorded a link between children
in care, homelessness, and the criminal justice system.88
According to research in 1998 by the Community
Services Commission (which has since been absorbed
into the office of the NSW Ombudsman), state wards
were 16 times over-represented in juvenile detention
centres, and 6.5 times over-represented on supervision
orders.89
Reasons advanced for this over-representation included:
> young people in care are more likely to spend time on
the streets and be visible to police;
> poverty among children in care can contribute to the
commission of property offences;
> young people in care often have behavioural problems
arising from a history of abuse or neglect;
> difficult behaviour, that would usually be a
disciplinary matter within a family home, will often
result in police involvement if exhibited in a refuge or
group home.
It was also noted that children in DOCS care face special
problems at all stages of the juvenile justice system. For
example, they are more likely to come into contact with
the police, less likely to have an adult support person
available to attend the police station, more likely to be
refused bail (often on welfare grounds), and more likely
to receive a custodial sentence.
Recent research by the Department of Juvenile Justice
has shown that 28% of young people in detention, and
24% of young people on community-based orders, had a
history of being in care.90
While being in care does not equate to being homeless,
there are very strong links. Recent Juvenile Justice
health surveys show that 33% of young people in
detention centres did not live in their family home
immediately prior to being incarcerated. For young
people on community-based orders, 36% did not live in
their family home.91

im age u n av aila ble

Kate Geraghty, The Age (Melbourne)

88. See, for example, Community Services Commission, Just Solutions wards and juvenile justice, 1999; Community Services Commission,
The drift of children in care into the juvenile justice system, 1996; and of course the Burdekin report itself. In its 1996 report the Community
Services Commission noted that homelessness is a significant contributor towards involvement of young people in the juvenile justice system.
89. Community Services Commission, Just Solutions wards and juvenile justice, 1999, pp.17-18.
90. NSW Young People in Custody Health Survey, Department of Juvenile Justice, 2003; NSW Young People on Community Orders Health Survey,
Department of Juvenile Justice, 2006, www.djj.nsw.gov.au/publications.htm#research
91. NSW Young People in Custody Health Survey, Department of Juvenile Justice, 2003; NSW Young People on Community Orders Health Survey,
Department of Juvenile Justice, 2006, www.djj.nsw.gov.au/publications.htm#research

Disadvantaged young people 29

 Timeline

Early 1800s Children were treated like adults, held responsible for their offences and punished accordingly.
Mid-1800s Reduction of penalties and establishment of separate prisons for children.
Late 1800s A separate Childrens Court in NSW was established in 1905.
Early to mid-1900s Separate system of justice for young people but no distinction between children as offenders and
children who were neglected.
1960s Attempts to secure greater protection of legal rights and accountability for children.
Mid-1980s Green and White Papers published recommending new legislation for childrens criminal
matters.
1985
United Nations (UN) released UN Standard Minimum Rules for the Administration of
Juvenile Justice (Beijing Rules).
1987 Government introduced cognate package of childrens criminal legislation: the Childrens Court
Act 1987, the Children (Criminal Proceedings) Act 1987, the Children (Community Service Orders)
Act 1987, and the Children (Detention Centres) Act 1987.
1988
Australian Law Reform Commission and Commonwealth Youth Bureau published Sentencing
Young Offenders, a review of the laws, policies and procedures for sentencing young offenders in
all Australian states and territories.
1990 Youth Justice Coalition produced report Kids in Justice: a blueprint for the 90s with over 200
recommendations relating to the failure to address social and economic dimensions of juvenile
crime; inadequate legal frameworks, and high level of violence and abuse from police.
Australia became a signatory to the UN Convention on the Rights of the Child.
UN released Minimum Rules for Non-Custodial Measures (Tokyo Rules).
UN released Guidelines for the Prevention of Juvenile Delinquency (Riyadh Guidelines).
UN released Rules for the Protection of Children Deprived of their Liberty.
1991
Government created separate Office of Juvenile Justice (a Kids in Justice recommendation).
1991-1995 Wagga Wagga police trialled extended police cautioning involving young offenders and
victims, drawing from Professor John Braithwaites 1989 theories of crime, shame and
reintegration.
1992
NSW Standing Committee on Social Issues released report Juvenile Justice in New South Wales.
Minister for Justice, the Hon Wayne Merton established the first Juvenile Justice Advisory
Council (JJAC) as an independent committee with members appointed by the Minister and
drawn from government, community and the academy (a Kids in Justice recommendation).
JJAC released Green Paper Future Directions for Juvenile Justice in New South Wales by, with
over 400 recommendations relating to juvenile crime prevention, including community-based
alternatives to court processing, and imprisonment.

30 HOT TOPICS 73 > Young people and crime

1993 Government established separate Department of Juvenile Justice.
Government released White Paper Breaking the Crime Cycle: New Directions for Juvenile
Justice in New South Wales, with a focus on prevention, alternatives to court processing, active
participation of victims and families in juvenile justice processes, availability of support services,
and an intention to reduce the over-representation of Aboriginal young people in juvenile
justice. The White Paper contains a Charter of Principles for Juvenile Justice in New South
Wales which has never been superseded.
1994 Children (Parental Responsibility) Act 1994 passed amidst much controversy.
Youth Justice Coalition and Youth Action and Policy Association produced report Nobody
Listens with key findings that young people, particularly from Asian, Pacific Islander or
Aboriginal backgrounds, are far more likely than other young people to be searched, arrested
and injured in the course of their contact with police, and young people generally are less likely
than adults to complain about mistreatment by police.
1995 NSW Police Service released the Policy Youth Policy Statement 1995-2000.
Legislative Council Standing Committee on Social Issues92 released A Report Into Youth Violence
in NSW, following a wide ranging investigation with 142 witnesses in hearings conducted in
Sydney, Lismore, Broken Hill, Wellington, Dubbo and Wagga Wagga, visits to 10 schools, and
65 written submissions. The key recommendations dealt with family support, employment and
leisure, planning issues, alcohol, education and schools, police and community action and young
offenders. The Committee recommended increased safety measures for the community and
effective and integrated responses to offenders.
12 month pilot scheme under the Children (Protection and Parental Responsibility) Act 1994
began operation in Orange and Gosford.
Community Youth Conferencing Scheme commenced as pilot in Wagga Wagga, Moree,
Bourke, Marrickville, Campbelltown and Castle Hill.
1996 The Attorney-General, the Hon Jeff Shaw, appointed the first Juvenile Crime Prevention
Advisory Committee.
Department of Juvenile Justice published Recidivism of Juvenile Offenders in NSW, by
Michael Cain.
Legislative Council Standing Committee on Social Issues released report, Inquiry Into Childrens
Advocacy. The committee examined the effectiveness of advocacy for children in the key policy
areas of health, education, law and justice, and child protection, and whether childrens needs
were being met and adequately promoted by existing organisations and agencies responsible
for childrens advocacy in NSW. The Committee recommended that the position of Childrens
Commissioner be established within the Human Rights and Equal Opportunity Commission,
that an Office of the Status of Children and Young People be established within the NSW
Premiers Department, the establishment of a state wide Childrens Advocacy Network, with 20
workers, and services located in areas of high need, and that, to ensure adequate peer advocacy,
an Article 12 Committee of children and young people be established to discuss relevant issues
and provide advice to agencies and departments on matters affecting young people (including
juvenile justice).
Crime Prevention Division, Attorney Generals Department, published Juvenile Crime in New
South Wales: A Review of the Literature, as the first step in the development of a Juvenile Crime
Prevention Strategic Plan. The review covered the dimensions of juvenile crime, the costs of
juvenile crime, the factors influencing juvenile crime, a statistical profile of offenders, victims of
juvenile crime, and promising juvenile crime prevention strategies.
Following riots at Kariong, the only high security Juvenile Justice Centre operated by the
Department of Juvenile Justice, the NSW Ombudsman published a report on their Inquiry into
Juvenile Justice Centres.

92. For a list of all reports by the Legislative Council Standing Committee on Social Issues, see http://www.parliament.nsw.gov.au/prod/parlment/
committee.nsf/V3ListReports?open&vw=V3AllReportsByCttee&vwCat=Social+Issues

timeline 31
 1997 High level inter-departmental committee presented a scathing report to Premier Carr that was
highly critical of the Children (Protection and Parental Responsibility) Act 1994. The Committee
recommended that the Act be repealed.
Premier Carr announced expansion of legislation under the Children (Protection and Parental
Responsibility) Act 1997 as the basis of the government's new approach to crime prevention.
Traffic Amendment (Street and Illegal Drag Racing) Act 1997 became law, giving police the power
to impound a vehicle they suspect to have been involved in drag racing within the previous
10 days.
Crimes Amendment (Detention after Arrest) Act 1997 became law, specifying police powers to
hold a person in custody following arrest for investigation. The Act included specific provisions
for dealing with children as vulnerable persons.
University of NSW Faculty of Law published Anh Hai: Young Asian Background Peoples
Perceptions and Experiences of Policing, by Lisa Maher and others. The report portrayed
problematic relationships between police and young people of Asian backgrounds.
Australian Human Rights Commission and Australian Law Reform Commission published
Seen and Heard: Priority for Children in the Legal Process.
Australian Human Rights Commission published Bringing them Home: National Inquiry into the
Separation of Aboriginal Children from Their Families. The report characterised the continuing
over-representation of Aboriginal children in juvenile justice as a continuation of earlier removal
policies through a process of criminalisation, that new legislation had done little to confront the
issues affecting Indigenous young people or to reduce the levels of police and detention centre
custody, and that the underlying issues that substantially contribute to Indigenous offending
levels had not been addressed.
1998 Young Offenders Act 1997 became law, introducing a new integrated hierarchical scheme of
police warnings, cautions and youth justice conferences as alternatives to court for certain
offences (see page 14).
Crimes Legislation Amendment (Police and Public Safety) Act 1998 became law, amending the
Summary Offences Act 1988 to give police powers to search for dangerous implements, and ask
for names and addresses.
Attorney General declared Moree and Ballina as operational areas under the Children
(Protection and Parental Responsibility) Act 1997.
Legal Aid Commission of NSW launched Young Offenders Hotline, to support the operation of
the Young Offenders Act through the provision of telephone legal advice to children in police
custody between 9 am and midnight on week days and 24 hours on weekends and public
holidays.
Legislative Council Standing Committee on Law and Justice published Crime Prevention
Through Social Support.
1999 The Community Law and Legal Research Centre (University of Technology Sydney) and the
Youth Justice Coalition released Youth Street Rights: a policy and legislation review. The report
presented a review of developments in policy and legislation since the release of Kids in Justice
in 1990. The authors identified contradictory trends in legislation and policy, with some
legislation, such as the Young Offenders Act, that was consistent with treaty obligations under
the UN Convention on the Rights of the Child, and other legislation, such as the Children
(Protection and Parental Responsibility) Act, that was in contravention of Australias international
human rights obligations. The authors argued that these contradictory trends reflect[ed]
genuinely different and contradictory views on the rights and responsibilities of young people.
National Crime Prevention (Commonwealth Attorney Generals Department) published
Pathways to Prevention: Developmental and Early Intervention Approaches to Crime in Australia.

32 HOT TOPICS 73 > Young people and crime

1999 Aboriginal Justice Advisory Council released their report, A Fraction More Power: Evaluation
of the Impact of the Children (protection and Parental Responsibility) Act 1997 on Aboriginal
People in Moree and Ballina. AJAC recommended that the Act be repealed because it was not
being strictly applied in Ballina, and because the way it was being used had disastrous effects
for Aboriginal children in Moree and breached Aboriginal young peoples rights of freedom of
movement, of association, of peaceful assembly, of equal participation in cultural activities, and
to equal access to public areas. AJAC also recommended that a rural Childrens Legal Service be
established in Moree.
NSW Drug Summit recommended that a Youth Drug Court be piloted in metropolitan Sydney
Childrens Court.
NSW Ombudsman released its report, Policing Public Safety: Report under s.6 of the Crimes
Legislation Amendment (Police and Public Safety) Act 1998. The Ombudsman found that the
search powers under the legislation were used mainly against young people and people aged
between 18 and 25.
1999-2002 The NSW Attorney Generals Department Crime Prevention Division (CPD) and the NSW
Department of Juvenile Justice (DJJ) funded a program to explore the effectiveness of mentoring
with young offenders referred through Police Cautions or Youth Justice Conferences (YJC).
The program was piloted at two sites, one metropolitan, the other rural NSW. The program was
managed as a partnership between the funding agencies and three other government agencies:
the NSW Police, the Department of Community Services (DOCS) and the Office of Children
and Young People in the Cabinet Office. The model of mentoring was based on the Big Sister
Big Brother (BSBB) model of one to one mentoring with carefully screened adult volunteers
matched with a young person, with the goal of developing a friendship. The evaluators, ARTD
consultants, found that the pilot demonstrated that mentoring, using the adapted BSBB model,
could be an effective intervention for suitable young offenders. However, the findings also
revealed that the scope of mentoring as an intervention with young offenders is limited and
should be considered as only one element in any strategy targeting young offenders.
2000 Following riots at the centre, the NSW Ombudsman published their report, Investigation into
Kariong Juvenile Justice Centre.
Youth Drug Court trial program commenced at Bidura Childrens Court. Section 33(1)(c2),
Children (Criminal Proceedings) Act 1987 introduced to support operation of YDC. Originally
scheduled to operate for two years, YDC has been extended to Parramatta and Campbelltown
Childrens Courts, but continues to operate as a pilot in 2010.
Legislative Council Standing Committee on Law and Justice released Crime Prevention through
Social Support Second Report. Among other things, the committee recommended that the
Attorney Generals Department widely promote the results of its evaluation of the impact of
mentoring programs on re-offending, when used as part of Young Offenders Act cautioning,
and that the Crime Prevention Division of the Department explore other options which could
be used to ensure cautioning is used so as direct offenders to programs which deter offending
behaviour.
2001 NSW Police released Youth Policy Statement 2001-2005.
2002 Youth Drug Court renamed Youth Drug and Alcohol Court (YDAC). Young people who
commit serious offences with underlying serious drug and/or alcohol use now eligible for
YDAC.
Commencement of Young Offenders Act amendments limiting the number of occasions on
which a young person is entitled to be cautioned to three.
Report on the Review of the Young Offenders Act, 1997 from the NSW Attorney General's
Department.
2004 The Social Policy Research Centre, University of New South Wales submitted to the Attorney
General their report, Evaluation of the NSW Youth Drug Court Pilot Program. This report
recommended that the program should continue and be expanded geographically.

timeline 33
 2004 Department of Juvenile Justice published report 2003 NSW Young People in Custody Health
Survey (available at www.djj.nsw.gov.au/publications.htm).
Young Offenders Regulations 2000 amended to include mandatory provisions for content of
outcome plans for young offenders participating in a youth justice conference for bush fire/arson
offences.
Juvenile Offenders Legislation Amendment Act 2004 introduced to facilitate the transfer of
responsibility for the Kariong Juvenile Justice Centre from the Department of Juvenile Justice
to the Department of Corrective Services, and to rename the centre as the Kariong Juvenile
Correctional Centre.
2005 NSW Ombudsman published report, Working with Local Communities: Audit of the
implementation of the Police Aboriginal Strategic Direction (2003-2006). The Ombudsman found
mixed compliance with the Young Offenders Act by Police Local Area Commands, but praised
the positive relationships established between some Police Youth Liaison Officers and Aboriginal
young people.
Legislative Council Select Committee on Juvenile Offenders tabled Report on the Inquiry into
Juvenile Offenders. The report considered many issues around the operation of the Kariong
Juvenile Justice Centre and considered whether incarcerating juveniles in juvenile correctional
centres achieves reduced recidivism, rehabilitation and compliance with human rights
obligations.
Sydney Institute of Criminology published Chan (ed) Reshaping Juvenile Justice: The Young
Offenders Act 1997 (NSW).
2006 NSW Government published response to Legislative Council Select Committee on Juvenile
Offenders Report on the Inquiry into Juvenile Offenders.
Department of Juvenile Justice released NSW Young People on Community Orders Health
Survey 20032006, a report prepared by Professor Dianne Kenny of the University of Sydney
in association with the Department of Juvenile Justice (available at www.djj.nsw.gov.au/
publications.htm).
Legislative Council Standing Committee on Social Issues tabled in Parliament its report, Inquiry
into Public Disturbances at Macquarie Fields. This report highlighted the need for appropriate
and adequate facilities to meet the needs of the local young people.
NSW Sentencing Council published their interim report, The Effectiveness of Fines as a
Sentencing Option: Court-imposed fines and penalty notices. The Council recommended, amongst
other things, that alternative sentencing options to fines should be used for vulnerable offenders
(including young people) and that improvements needed to be made to the arrangements for
time to pay and alternatives to payment of fines.
2007 Bail Act 1978 amended to limit number of applications to court for bail but no special
provisions were included to minimise the negative impacts of the amendments on children
and young people. Attorney General announced that NSW now has the toughest bail laws in
Australia.
NSW Law Society published third edition of Representation Principles for Childrens Lawyers.
NSW Law Reform Commission published its 2005 report, Young Offenders. The report
examined the two main laws relating to the sentencing of young offenders and forming the basis
of juvenile justice policy in NSW the Young Offenders Act 1997 and the Children (Criminal
Proceedings) Act 1987.
The Evidence (Audio and Audio Visual Links) Act 1998 amended to permit children on remand
to give evidence in bail hearings by way of an Audio Visual Link from a Juvenile Justice Centre
(JJC). Main justification for this change to save the time and expense of transporting children
from JJCs to court.

34 HOT TOPICS 73 > Young people and crime

2008 Youth Justice Advisory Committee abolished. The Committee was established to monitor and
review the operation of the Young Offenders Act.
Juvenile Justice Advisory Council abolished and replaced by Young Offenders Advisory Council.
Legislative Council Standing Committee on Law and Justice tabled its report, The prohibition
on the publication of the names of children involved in criminal proceedings. The Committee found
support for the current prohibition in section 11 of the Children (Criminal Proceedings) Act
1987, and recommended its extension to cover the period prior to the official commencement of
criminal proceedings and the inclusion of any child with a reasonable likelihood of becoming
involved in criminal proceedings.
Children (Criminal Procedures) Amendment (Youth Conduct Orders Act) 2008 introduced a
new Part 4A to the Children (Criminal Proceedings) Act 1987 to support commencement of
pilot program of Youth Conduct Orders in selected Police Local Area Commands. Youth
Conduct Orders are intended to address the underlying causes of anti-social behaviour by
certain children by means of youth conduct orders that operate to prohibit or restrict negative
behaviours and to promote socially acceptable behaviours through participation in anti-social
behaviour programs.
Legislative Council Standing Committee on Social Issues tabled its final report, Overcoming
Indigenous Disadvantage in New South Wales.
2009 Emu Plains Correctional Centre opened as a remand centre for children and young people and
management transferred from Correctional Services to Juvenile Justice NSW.
Attorney General announced commencement on 1 July 2009 of a $1.4 million two year trial
of Youth Conduct Orders in New England, Mt Druitt and Campbelltown Police Local Area
Commands. Attorney describes Youth Conduct Orders as a tough new approach to tackling
youth crime and getting young offenders to face up to their anti social behaviour before they
embark on a life of crime.
Juvenile Justice NSW appoints Noetic Solutions to undertake strategic review of juvenile justice
in NSW.
Work and Development Orders introduced under the Fines Further Amendment Act 2008 as
an alternative to the payment of fines. See http://www.theshopfront.org/documents/Fines_
kit_-_table_of_contents.pdf for comprehensive information on fines, penalty notices, and
arrangements for payment of fines.
Childrens Court Act 1987 amended to establish the position of a District Court Judge as the first
President of the Childrens Court. First President appointed in June 2009.
Young Offenders Regulation 2004 amended to introduce mandatory requirements for outcome
plans for young people who are dealt with by way of youth justice conference for graffiti
offences and to remove the mandatory requirement that outcome plans for bush fire/arson
offences include a visit to a hospital burns unit.
Commonwealth Government House Standing Committee on Aboriginal and Torres Strait
Islander Affairs commenced Inquiry into the high level of involvement of Indigenous juveniles and
young adults in the criminal justice system.
Legislative Council Standing Committee on Law and Justice commenced inquiry into Spent
Convictions for Juvenile Offenders.
2010 Noetic Solutions delivered their report, A Strategic Review of the NSW Juvenile Justice System, to
the Minister for Juvenile Justice, the Hon Graeme West.
After making the Noetic Solutions report a Cabinet in Confidence document, the Government
launched the report and the Government response to the recommendations in the report. Little
media interest was shown to either the report or the response.

timeline 35
 Further information
The Legal information Access Centre (LIAC) in the State Library offers a free service to help you find
information about the law, including cases and legislation. See the back cover for opening hours and contact
details for the Centre.
Visit LIACs Find Legal Answers website: www.legalanswers.sl.nsw.gov.au
You will find the Legal Studies Research guide under the HSC legal studies tab.
Use our HSC Legal Studies News Watch blog to find the latest information:
http://blog.sl.nsw.gov.au/hsc_legal_studies/
Legal Aid NSW
www.legalaid.nsw.gov.au
Website contains information on a range of legal topics.
See particularly:
Get Street Smart: Under 18? Know your Legal Rights
a wallet-size guide explaining young peoples rights on
the street and with the police.
NSW Department of Juvenile Justice
Information available includes Annual Reports,
policies, research reports and general information
about the department. Also available are a guide
to Youth Justice conferencing (pamphlet) and
Joes Conference (video) explain the youth justice
conferencing system.
www.djj.nsw.gov.au
National Childrens and Youth Law Centre
www.ncylc.org.au
Website includes links to:
> Whats up cRoc? information about the human
rights of young people in Australia
> Lawstuff Australia-wide legal information for
young people which provides answers to common
legal questions for each state.
> Lawmail individual email advice for young people.
Australian Institute of Criminology
Website contains a variety of publications including
conference papers and Trends and issues in crime
and criminal justice. See for example, Juveniles in
detention in australia, 1981 to 2006, Technical
and background paper No 26, Natalie Taylor.
www.aic.gov.au
NSW Commission for Children & Young
People has information sheets relating to child
protection, rights, sexual assault and other topics.
www.kids.nsw.gov.au/kids/resources/publications/
informationsheets.cfm
36 HOT TOPICS 73 > Young people and crime
Shopfront Youth Legal Centre website contains
fact sheets with legal information for young people and
youth workers.
www.theshopfront.org
NSW Bureau of Crime Statistics and Research
(BOCSAR)
Produces useful publications and statistics on crime and
court outcomes in NSW.
www.bocsar.nsw.gov.au
Youth Action and Policy Association (YAPA)
is the peak body for youth organisations in NSW.
The YAPA site contains a lot of useful information
about legal and policy issues, including some very
useful fact sheets for youth workers and a newsletter
updated every two months YapRap.
www.yapa.org.au
Parliament of NSW
Website has research publications on various topics, many
of which are relevant to young people (eg. gangs, bail law
and practice, young offenders and diversionary options,
law and order legislation). See under Resources tab.
www.parliament.nsw.gov.au
PUBLICATIONS
The law handbook, 11th edition, 2009, Thomson
Reuters.
A comprehensive guide to the law in NSW; see Chapter
8: Children and young people. Tool Kit title available in
all NSW public libraries.
Youth Justice: Your guide to cops and courts
in NSW, Macquarie Legal Centre, 4th ed., Federation
Press, 2010 (November). Tool Kit title available in all
public libraries.
Children and the Law in Australia, G Monahan
and L Young (eds), Lexis Nexis Butterworths, 2008.
See section on Young people and juvenile justice, by
C Cunneen. Available in many public libraries.
 HOT TOPICS

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