Good morning everyone. Welcome to Legal Aid’s webinar about Understanding the Youth Justice
System. My name is Katherine Bowden, and I’m the Communication and Community Legal Education
Officer at Legal Aid Queensland. I’d just like to start by testing the technology.
If everyone can please raise their hand and we’ll make sure everything’s working. Great.
I see a few hands there. Thank you for that. I’m just going to go through a few house rules.
First of all, we’ll have a 30 minute presentation followed by about 20 minutes for question
time, if everyone can please hold their questions until the end. If you look at the toolbar
which should automatically be on your right hand side, you’ll see the questions box. If
you expand that out and type your questions in there once we’ve done the call for questions,
we’ll try to get through as many as we can. If your question isn’t answered, please write
down our webinars email address. It’s [email protected] If
you email us, we’ll try our best to get back
to you. Okay. Now if everyone can please make sure
that they keep their microphones on mute throughout, that would be brilliant. I’m just going to
run a quick poll. So the question is do you work in a rural, regional or remote area?
If everyone can answer yes or no to this, that would be fantastic. I’ll just give that
one more minute. For anyone who’s just logged in, we’re just answering the poll, do you work
in a rural, regional or remote area? Okay. Great. So 39 percent of you have said yes,
you do work in a rural, regional or remote area, and 61 percent more in the metro area.
I’d now like to hand you over to David Law. He’s our principal lawyer who works in the
Youth Legal Aid section at Legal Aid Queensland, and he’s going to go over Part 1 of Understanding
the Youth Justice System. David Law:
Good morning everybody. I’m David Law, and today’s webinar is on the youth justice system.
This is about the fourth iteration of the webinar that I’ve written, and what I’ve tried
to do is I’ve tried to do a webinar this morning that will give stakeholders, youth workers,
social workers, people who aren’t lawyers essentially, an insight into what lawyers
need to do in order to represent children within the youth justice system. By doing
that, we can also discuss where lawyers find the assistance of youth workers really helpful.
This is designed as Part 1. It’s difficult to know exactly what sort of information stakeholders
are after, because I’ve got a lawyer’s brain and think of things from that perspective.
So I thought we’d address the Part 1 of this youth justice seminar in this way, and then
based on what your questions may be at the end of this seminar, we can run a second seminar,
and we can even do it as just answering questions that you may have that may not be covered
by this particular topic. I understand that at the end of this webinar
there will be a survey, and as part of that survey we’d really appreciate the feedback
on specifically if we missed anything, or if you want further information, specifically
what you need, and we can certainly accommodate that in a future webinar. We can do that pretty
quickly as well. You can see there that’s the PowerPoint presentation.
I will click through it, and I understand you’ll be able to see it on your end. There’s
a bit of a disclaimer there. This is just really general information. It’s not specific
legal advice. If you have a child who requires specific legal advice, you can get in contact
with Youth Legal Aid on the 1300 number – 1300 65 11 88 – and we can organise legal advice
for children who have been charged or the police want to speak to them about offences.
That’s just a bit more of a disclaimer as to the basis for this seminar.
Alright. The way I’ve constructed this seminar is to discuss basically what are the ten rules
that lawyers must follow when representing children. We’ll go into all these in some
more detail. Firstly the child is the client, and we’ll discuss what that actually means.
Interconnected with that is the same ethical considerations are owed to children as they
are for adults, and that’s in terms of legal representation obviously. The child’s understanding
of the proceedings will not be the same as an adults. Children have the right to fully
participate in proceedings and make decisions about their case. Children rely on the advice
of their lawyers more than adults. Interviewing children requires a different skill set. Children
have less control about their bail situation. Lawyers have to have an acute understanding
of the child’s family dynamic, peer group, education, mental health and medical issues.
Extensive knowledge of the rules for children in relation to police investigations, and
also an understanding of the different procedures and sentencing outcomes for children.
Now we’ll touch on these briefly. We’ve got about half an hour to discuss the content
of this webinar, for me to deliver it, and then we’ve got about half an hour for questions
at the conclusion. So we’ll try to keep to those timeframes if we can.
Okay. Now the reason why I’ve approached the webinar in this way, is that with my interactions
with stakeholders, youth workers, social workers and even parents, there is some confusion
about the interaction between the lawyer and the child. So I thought this would be a great
way of clearing up that confusion. That first point – the child has the right
to exclude all adults from interviews with their lawyer – now that can be challenging
to many stakeholders. In fact I’ve been challenged many times by youth workers. I don’t make
the decision about whether to exclude somebody, but I mean – well I sometimes have to in particular
situations. But if a child doesn’t want their parents to be in the interview or doesn’t
want their child safety officer, they’re quite entitled to do that, and ethically I can’t
conduct the interview until that takes place. I have been challenged in the past. I’ve been
told in no uncertain terms that what I’m doing is illegal. It’s not. If the child doesn’t
want anybody else there and just wants to talk to their lawyer in private, they’re quite
entitled to do that. The other difficulty that lawyers face during
that really initial period in talking to a child, is that particularly as a duty lawyer,
the lawyer can’t take instructions from the child’s parents. In child’s parents I also
include guardians, so also for instance from youth workers or case workers from Child Safety.
So I have been told in the past that a child may want me to apply for bail, and I’m told
by the child safety worker that they don’t want a bail application made on behalf of
that child, for whatever reason that may be. Well that’s very interesting, but at the end
of the day I have to follow what the child would like me to do.
I act on their instructions and their instructions alone. We obviously give them a lot of advice
and give them ideas of their prospects in regards to these things, but ultimately we
act on the child’s instructions. That third point obviously covers that issue also. Look,
that can be confronting for some stakeholders, but we are bound by a set of ethics as lawyers,
and the child has the right to instruct their lawyer directly.
Here’s just a few of the ethics. We have a number of ethical rules when we’re representing
children. The lawyer has an absolute duty of confidentiality to the child. So when we
speak to the child, and if the child says to us “I don’t want you to give any information
to my guardian or any information to my parents,” then we have to follow those instructions,
and that can be frustrating. What we’ve had in the past, which can be difficult, is the
child will tell their lawyer specifically that they don’t want us speaking to their
parents or to their guardians, however when they’re speaking to their guardians or parents
say “I don’t know what the lawyer’s problem is. I said it was okay”. But it actually isn’t
correct, so it can create some conflict there. We can’t explain what the issue is, and that
can be sometimes very problematic. We have to act in the child’s best interests
and on their instructions. So that really goes back to the first point about who our
client is. A child must waive their confidentiality before a lawyer can speak to parents, carers
or other support people. So we at Legal Aid have a piece of paper called an Authority
which the child can sign. They can also give us an oral authority which we will file note,
which allows us to speak to parents, carers or other support people. Look, 99 times out
of 100 the child is quite happy for us to speak to other people about their case in
order to get that extra assistance for them. The confidentiality aspect is very important.
Part of the other reason for why I’ve run the webinar in this way, is that for those
youth workers and stakeholders who accompany children to lawyer’s interviews, this is a
best practice guide almost for a lawyer and how they conduct themselves with a child.
So if the lawyer that the child has isn’t following these steps or doing these things,
then you may have a problem and it might be an idea to talk to somebody.
This is our experience of a child’s understanding of the court process. So a lawyer really has
to spend some time trying to demystify the proceedings for the child. We can’t presume
that the child’s aware of what court is like and the situation would be very overwhelming
for them, and particularly up in the Childrens Court where you’ve got several groups wanting
to speak to a child. So you’ll have Youth Justice wanting to speak to the child, you
may have court support people wanting to speak to them, you may have external agencies, other
youth organisations wanting to speak to the child, plus their lawyer, and it can all be
a little bit overwhelming for the children in that case. What we try to do in most Children’s
Courts is to sort of reduce the number of people there so there isn’t that confusion
for that child. Even those children that show a fair bit of
bravado, deep down they’re probably still stressed about appearing in court. It is certainly
not a fun experience for any child in my experience. This is also somewhere where youth workers
and other stakeholders can really assist the child, is in that attempt to demystify the
proceedings for the child and making sure that if they do accompany the child in the
interview with a lawyer, to make sure that the lawyer has explained how things work – where
they have to stand, what the purpose of the proceeding is, what the next stage is, actually
going through the offences with the child, making sure that they’re fully aware and can
fully participate in the proceedings. So this is a rule that lawyers should follow, and
it flows from the last one. The better a child understands the court procedure, the more
they can participate in court and make informed decisions about their case. Again that
goes back to the point of the child being the client. They have to make the informed
decisions about their case. Even if I think the decision they’re making is a very bad
idea, I do have to follow their instructions. It’s at those sorts of points … and going
back to the involvement of parents and other case workers … it can be quite frustrating
sometimes for stakeholders and parents in court. I’ve had parents on many occasions
say “We’re here to plead guilty. I’m not coming back. I’m not taking another day off work.
They’re here to plead guilty today”. We can’t take that into account when informing our
client of their rights and giving them advice about maybe what they should do in this particular
circumstance. So understanding procedure and then testing
their knowledge of that are extremely important. That’s somewhere where we found stakeholders
and youth workers of great assistance, is that they can just double check to make sure
the child understands. It’s almost always the case that whoever is accompanying the
child in court of course is going to know the child much better than the lawyer is,
so having that bridge of communication sometimes between the lawyer and the child is absolutely
essential. We’ll talk a little bit about that in some of the other slides.
What we’ve also found is that a child who’s charged with an offence will rely on the advice
of their lawyer a lot more than what an adult would, because an adult obviously is more
sophisticated, has greater understanding and feels that they’re in a better position to
challenge advice and be firm in what they want to do in a particular case. With children,
often they’ll just follow the advice of their lawyers because they are overwhelmed by it.
So any advice that a lawyer gives has to be simple, given in simple terms. It has to be
incredibly accurate, because the child is relying upon you and they don’t have the means
of researching the point themselves if they’re a bit confused.
There’s also a power differential, which really isn’t spoken about, between the lawyer and
the client. The lawyer, even though they take instructions from the child, is in a much
more powerful position. The child relies upon that advice, and is trusting that lawyer to
act in their best interests. The reason I raise this point, is that those of you who
do support children who appear before the Childrens Court do have to look out to make
sure that the lawyer is really doing this properly, is making sure that they explain
things very simply for the child. If they’re not, there’s no problem with actually saying
“Hey listen, I don’t think the child understood what you said. Is there a way of putting it
differently, and making sure that the child doesn’t leave that room until they can have
a decent understanding of what’s about to happen to them and the advice that you’ve
given them?” This is a skill that lawyers develop over
time, and it’s a skill that a lot of youth workers have which is far more complex and
well developed than what lawyers have. When I give these webinars and seminars to lawyers,
we talk about how imperative it is to listen to the child and to pick up on those sort
of non-verbal cues, and mannerisms of a child to pick up of there is an issue. In the past
we’ve had children who have appeared to be completely engaged in their legal proceedings,
and can give you some details of what’s about to happen to them. But once information is
received from the third party, you find out that that child actually has an incredibly
low IQ, but they have learnt to hide, to disguise those deficits that they have.
So for instance, even saying to a child “Can you read and write,” and they’ll say “Yes,”
and they’ll go through the process of looking like they’re reading instructions or reading
a piece of paper, but they’re not. They’ll say “Yeah, okay. I’ve read that. I agree with
that”. So it’s really important to paraphrase what the case is to all children, until you
know that definitely they can read. So that’s one instance where things can be confused,
and lawyers have to be on their guard. Also observing the dynamic between the child and
their parent or case worker, because often we’ve had instances where we’ve discovered
at a later date that the particular parent who attended with the child was being abusive
to them, and when they got home was physically abusive to that child. So the child would
only do what the parent wanted in terms of their case, even though the advice was very
different to that. So it’s understanding those sorts of issues
which you don’t … they’re not as common when appearing for adults, and we’re finding
more and more children, as drugs are becoming, particular ice, are becoming more prevalent
in the cohort of children that we’re seeing. We’re seeing some behaviours. I don’t think
I’ve had a child client yet who has admitted that they’re using ice, but you can tell,
and understanding that and trying to get them the help they need and using that for their
legal process is vitally important. When interviewing a child, it goes back to
the point I’ve made before. The Childrens Court is a complex area with really complex
legal concepts, and a lawyer has to be able to explain those in very basic terms. Again,
I reiterate that if you are a stakeholder or guardian or somebody who supports young
people in the youth justice system, making sure that the lawyer has actually undertaken
their role, and being able to understand it yourself so when there’s questions back at
home or in meetings later with the child, that you’re able to reiterate what the lawyer
said and to make sure that if there’s any questions that you’re able to assist them
with that. This is an area … a child’s bail situation
… when children are charged, a number of things can occur. They can be given a notice
to appear in court, they can be given watch house bail, or they can be refused bail by
the watch-house keeper and brought to court. It’s at that point that a bail application
has to be made. The difficulty with bail for children is that they don’t have a great deal
of control over their bail situation, because they can be excluded from home, they can be
excluded from school. Really what a lawyer has to do when thinking about bail, is understanding
what the bail is designed to achieve. What bail is designed to achieve is namely getting
the child back to court, but also there’s conditions on bail like curfew or conditional
bail programs. The purpose of those conditions is to ensure that the child doesn’t reoffend,
turns up to court, doesn’t interfere with witnesses, and doesn’t create a difficulty
for the public in general. It’s important when looking at bail for a
child that … for instance a child doesn’t have a curfew placed on them if the offending
is happening during the day for instance. That’s a very common one. Lawyers rely on
external stakeholders so much when it comes to bail, because it’s really Youth Justice
who create the conditional bail programs, and it’s Child Safety and other youth organisations
that can locate bail addresses and give extra support. It’s usually those sorts of things
that are vital when you’ve got a high risk child, where the court is thinking “Look,
I’m a bit worried about releasing this child, because they may offend”. It’s that communication
between a lawyer and external … and people who are supporting children which is absolutely
vital. It’s really important for those that are supporting
children to make sure that bail applications are made for children, and if one hasn’t been
made, to make sure that you ask why if you’re supporting a child. Detention is not a great
place to be for children. We know that children who end up in detention, their outcomes in
the future are poor. The chances of them entering the adult criminal justice system are very
high. So trying to keep children out of detention is very important for defence lawyers for
that reason, and if there’s any way we can achieve that and put extra supports around
the child to keep them on bail and not offending, then that’s incredibly important.
We worry often that some members … some people who support children want children
to go into detention as a way of understanding consequences, and think that’s the way forward.
I disagree with that view, and most defence lawyers do disagree with that view. So if
there’s a chance of getting bail, we will apply for it.
So this is a little bit different to the child is the client. This is who is your client.
So understanding the personal details of your client is so very much more important when
dealing with a child. You have to understand the dynamics in the child’s domestic relationships
at home. Is there abuse in the family? Is there drugs in the household? Are the parents
supportive? Are they strict? Do they not really care? Do they have any control over the child?
The education arrangements, have they been excluded from school? What sort of school
are they going to? Are they in flexi education? Getting an understanding of which peer group
they’re with and who they’re offending with, and also general health issues.
So the amount of children that come before the youth justice system who have intellectual
disabilities, mental health issues, substance abuse issues, mental health issues that are
a result of neglect and trauma in their young lives, that’s the vast majority of children
who come before the court. So understanding what their particular issue is is absolutely
vital. That’s vital for a lawyer for a number of reasons. One, in understanding what their
understanding is in terms of procedure and their rights and being able to take in your
advice, also for the position of bail, and also for the position of sentencing also,
and being able to tailor the information and understanding what the next step is for that
particular child. So for instance a child who has a mental illness
or has a severe intellectual disability which may impact on their capacity to understand
proceedings, that sort of case is going to go down a very different route than a child
who doesn’t have those particular issues. This is an area where children aren’t very
forthcoming about any of these issues that I’ve raised here, and this is where case workers
and youth workers are just vitally important in the youth justice system. Because it’s
these gaps in the lawyer’s knowledge which often is the real crux of what the lawyer
needs to get at in order to get a really good outcome for the child. So sometimes the children
don’t want the lawyer to know any of this, but if you’re in an interview supporting a
child and it hasn’t been raised, it’s probably a good idea to raise it, because it’s just
so vitally important. Lawyers rely upon that relationship with the external stakeholders
to get that done. This is another issue where support people
sometimes have issues, and that is understanding the rules around police investigations. So
when the police wish to have an interview with the child, they do need a support person
there. That support person can be a parent, it can be a youth worker, it can be any responsible
adult of the child’s choosing. If none of those people are available, then they can
get a Justice of the Peace. It’s really important if you have to act as
a support person to know what you’re role is, and there’s a lot of case law out there
as to who is an appropriate support person and who isn’t. We see a fair bit of children
who are charged in their child safety placements, and the complainant or the witness in those
cases is their case worker or the worker within that placement, and that person is the support
person for that child at the interview. That’s incredibly inappropriate in the circumstances
to do that and we have challenged interviews on that basis, because that person could almost
be counted as a person of authority. There was a number of cases that occurred
up in the Cape a few years ago where the support person for all the children involved was the
local police liaison officer, and that person was deemed to be a person of authority, and
all of those interviews were excluded by the judge on that basis.
The other things that lawyers have to be very on top of when they’re giving advice to a
child, is figuring out what is evidence and what is not. So a good example of that is
if in a QP9, which is the police summary of facts, the only evidence against a child will
be something that they’re co-accused said, the co-accused has dobbed them in for the
offence. That isn’t necessarily evidence against the child. The reason for that is that it’s
not sworn evidence, it’s just basically a comment said to the police in an interview,
and lawyers have to be on top of that sort of evidence. Certainly that’s a webinar that
we can give at a later stage if you want more detail about the sort of the finer points
of how to evaluate a case against a child. There’s a very different sentencing regime
with children than there are for adults. So for instance children can’t be sentenced for
welfare reasons, and a very similar rule to that is that children can’t be placed in custody
or remanded in custody for their own protection. That is a rule that is often broken and is
misunderstood. The way children are sentenced – there’s particular rules in the Youth Justice
Act about what sort of information a court can take into account when sentencing a child,
and there’s a lot of case law as well. So the principal reason or rule for sentencing
a child is that you have to have a look at the offence itself, so you’re really sentencing
for the offence. So if the offence is a public nuisance or a low level sort of street offence,
then automatically leaping to community service or probation or something of that nature is
probably a bit too heavy in the circumstances, and breaches a number of rules that a court
has to take into account. So lawyers have to understand the knowledge
of available alternatives. Here also is where it’s vitally important for case workers and
youth workers to be involved, because often courses and supports can be put in place for
children which means that they don’t need to be put on probation. So if they’re already
interacting with community groups that support children who are finding themselves on the
wrong side of the law, then they may not need probation, they might just need to continue
with that and therefore a lower sentencing option is available.
So courts will take into account also what occurs in the home environment. So if they
have been punished or if they’ve been grounded, then that’s also something that can be taken
into account, so if the family has dealt with the issue adequately. We’ve had cases where
the parents have made the child who’s got in trouble mow the neighbour’s lawns or do
a little bit of community work, or they’ve been grounded for a long period of time, they’ve
lost their phone. Some have even been forced to move schools because the parents are disproving
of the peer group that they’re hanging out with.
So these are all things that a court can take into account, and that’s also where youth
workers are of great assistance in telling us about those alternative programs. Lawyers
don’t necessarily know about the programs in the community. I’ve been in the sector
for a very long time now, and I’m still surprised on a weekly basis that there’s some new program
that’s put in place. We’re not informed about them. The only times we’re informed about
them is usually when we’re at court and a youth worker will say to us “You know that
we’ve got this new program at the local PCYC,” and it’s like “That’s fantastic. Tell me all
about it”. Then the lawyer can use that as part of their sentencing submissions.
Alright. Here’s a bit of legal information online.
So our website, Legal Aid’s website, has got information for young people in the justice
system. So if you are supporting a child they can go there, and they can also connect in
with other community workers. There’s information for community workers and carers on our website
as well. The Youth Advocacy Centre and other community legal centres also have that information
on their websites, so there is a lot of resources out there for children who find themselves
in that position. Alright. Well we’ve managed to do that in
half an hour. I know it was very quick, but we’ve given a lot of time for questions. So
does anybody have any questions they’d like to ask? We have a question. Q&A Session David Law: What is the age limit?
I suppose that question is about who is a child in Queensland. Queensland is very different
from the rest of Australia, every other State, in that 17 year olds are not considered to
be children within the youth justice system. The section exists in the Youth Justice Act,
but it’s never been proclaimed. So it’s been sitting there ever since 1992, and the Juvenile
Justice Act has been sitting there. Despite advocacy from the sector, from the Bar Association,
from the Law Society, no Government has yet acted on increasing the age for who is a child
in the youth justice area. As an add on from that, children who are 17
who commit offences when they’re 16 and under can still go through the youth justice system,
so they can still be treated as a child. But if they commit an offence as a 17 year old,
then they go through the adult system. So an example of that is you’ll have a child
who’s turned 17, they’ve been charged with say stealing a car as a 16 year old. They’re
released on bail, but for some reason they don’t show up at court and a warrant is issued
for their arrest. What that means is that the offence they commit whilst on bail, which
is a breach of bail or failing to appear, that means that they commit that as an adult.
So even though they’re in the Childrens Court, the breach of bail offence is as an adult
and that goes through the Magistrates Court. So that’s the difficulties with that system.
What is the lower age of the client? I suppose what we mean by that is a child
has to be over the age of ten to be criminally responsible. Between the ages of ten and 14
the child … there’s a legal concept, a Latin legal concept, called doli incapax. Basically
the prosecution have to prove that the child understands the difference between right and
wrong and therefore can be prosecuted. It’s a very low bar. The police can use a previous
cautioning history against a child to prove that, and usually in police interviews you
will see the police with the child talk about “Did you understand what you did was wrong,”
and “Put that in your own words,” and that’s often the evidence that was used to get over
that very, very low bar. For children that are over that age, there’s
also the issue of intellectual disability. When a child is intellectually disabled and
there is a report saying they probably don’t understand the proceedings, then we’ve got
to fitness for trial issue, and that’s an issue that goes through the Mental Health
Court. So many of you would have supported children who end up before the Mental Health
Court, being examined by a number of psychiatrists to figure out whether they really understand
proceedings. We’ve had children with IQs of 42 who are found to be fit for trial. The
psychiatrist will often say things like “Well, you just have to explain things very slowly
to the child and make sure they understand”. It’s very difficult for a lawyer to do that.
I think it’s difficult for anybody to do that, but we haven’t had much success in that field.
Are the Childrens Courts still open in Queensland? We were told they are being closed.
Look, courts are still open at this stage. The legislation hasn’t been drafted. There’s
going to be a number of changes to the Youth Justice Act. In fact I gave evidence before
a Parliamentary Committee last week on the Youth Justice Act. From memory, the amendment
that is being proposed is for there to be confidentiality return, so basically getting
rid of the name and shame provisions of publication. But courts are still open. I don’t think that’s
in the first round of changes that the Government are proposing.
The Childrens Court of Queensland, which is the higher court, the District Court version
for the Childrens Court, has always been open. It’s always been open on indictment.
It’s only the lower court that was closed initially. So we’ll see what occurs there.
I should say about the courts being closed, a lot of courts seem to have the general view
that they should be closed as a matter of course, and if those submissions are made.
But a lawyer has to make the submission to seek the closing of the court and make submissions
on that basis. : Alright. Tamara, going back to sentencing
submissions, is it likely that referral to a new youth program would have an impact on
the outcome? Absolutely. I’ve had outcomes where I think
a child will get probation and youth justice will support that child, and then get told
by somebody supporting the child “We’ve referred them to a YARN Group,” or something of that
nature. You know, “There’s a new employment prospect,” “Through Child Safety we’ve managed
to find a course doing horse work or mustering,” and those have massive impacts on the sentencing
outcome for a child. So it’s always, don’t ever assume that the lawyer knows those programs,
and don’t ever assume that the child has ever told us about those programs. So it’s worthwhile
having a chat in the lawyer’s ear. Even if you’re excluded from an interview, you can
still tell the lawyer information and the lawyer will double check with the child accordingly. [Pause]
Okie dokie. This is a general question about, well it’s not, it’s a very specific question
in about five parts, about supporting children. Yes, a child must have a support person. There’s
no getting around that. It’s a prima facie position, which means it’s imperative that
there has to be a support person, otherwise the interview is of no use. To give you some
case examples, I was involved in a case in regional Queensland many years ago where the
support person was a JP. We later found out that that particular Justice of the Peace
had their own desk in the police station, and that they had … I got them to give some
evidence. They had sat in on 370 separate interviews with children and other vulnerable
people. That JP also admitted that when they spoke they told the child that it’s just better
to confess to the police, because it will just go better for them. That’s obviously
not an appropriate role for a support person. The support person has to give them advice
and say “Do you need to get legal advice?” ATSILS provide legal advice over the phone,
and so does Legal Aid Queensland. So if there is a child who needs to have advice before
an interview, they can certainly call us. Now we’re not a 24 hour seven day service,
so the interview can be postponed. So if you’re an advocate for a child, you can say to the
police “Well no, let’s get some legal advice for this child first, because you’re not lawyers”.
You can ring up Legal Aid Queensland and we’ll make arrangements for the child to get some
advice from one of my team.The advice given to children within the youth justice sector
was all done by my team, and I’ve got six specialist youth justice lawyers who can give
that advice. Sometimes the police don’t understand who’s
an appropriate person, they just want to tick the box. Sometimes lawyers don’t identify
this as an issue as well. That’s a real issue I’ve found, is that sometimes looking at cases
on appeal I wonder why the lawyer hasn’t said this interview should never have been before
the magistrate. It was an unfair interview. The other thing that we find, and that young
people tell us about, is that sometimes the police before an interview starts, or a person
in authority, could say “Look, if you just give this interview, there will be no problems
with your bail”. That’s an inducement, and that prima facie makes that interview inadmissible
in the court. It has to be argued obviously, but there’s a huge amount of case law on these
points. But basically the general rule is to make sure that the person supporting the
child isn’t a person in authority, because that really overwhelms the child, and if everybody’s
there who’s a person in authority, then there can be issues. That sometimes includes principals,
people who have been in charge of discipline in the past. That can all be quite problematic.
The police do have to inform them of their right to have a trial, but they shouldn’t
even conduct an interview without a support person being there. The onus is on the police
to make an appropriate assessment, and most of the time they get it right, but we have
seen more and more cases where the actual victim of the offence, even when it’s a parent,
is the support person for the child in giving that interview, and that’s very inappropriate.
Also parents or others will actually get involved in the interview and start castigating the
child during it. We’ve had that in one interview very recently where a parent was supporting
the child, and the parent just started losing the plot and telling the child to tell the
truth, and there was a fair bit of carry on in that. There’s obviously issues with those
sorts of interviews and whether they were conducted fairly.
This is a loaded question, Melanie. How do we manage working in the child safety residential
sector where we attempted to keep the young person out of the court system, but the Department
is stating that children and young people need to learn with regards to consequence
of behaviours and we should press charges? Look, this is a really difficult one, and
it’s been an issue that has been … there’s been a great deal of advocacy about it, particularly
from lawyers. I know that the Women’s Sisters Inside have certainly been vocal on this issue.
See the real issue with this, is that if one my children punched a hole in the wall, I
wouldn’t call the police, I’d call a plasterer. That’s the experience of most parents if a
child acts out in some way. Or if they take the car for a drive, you don’t call the police,
you call a panel beater and there’s consequences at home for that particular child. But when
it happens within a placement … and the children in placement, I mean there’s very
few of them that haven’t … I mean the reason they’re in placements is they’ve experienced
trauma or abuse or something horrible has happened in their young lives. Most of them
have got an illness or disorder as a result of that, and their ability to control their
behaviour has been completely compromised. Yet if they do punch a hole in the wall, they
get charged, and it’s a less than satisfactory position.
I don’t know what the answer is. There’s been a lot of advocacy about it, if there’s another
way forward. It’s a very different test when there’s maybe people being hurt physically,
obviously, but when it comes to that property damage within a house, it’s problematic. We’ve
even had children who have broken back into their … their placement has been locked, and
they’ve broken through a window to find somewhere to sleep and then been charged with a wilful
damage charge. We’ve also had children who have been charged for breaking open a cupboard
because the food has been locked away and they were hungry. We’ve seen that happen in
the past as well. How you deal with that in the child safety residential sector is difficult,
and I can’t really give you advice on how to deal with that. I can identify all the
issues and the difficulties. Lawyers, when they make submissions on children
who are charged with those offences, they really … I’ve advocated for a long time
about some moderation being shown to those children. I mean these are the most vulnerable
children, there’s a reason they’re in Departmental care, and so they just can’t be continually
punished for their inability to control themselves in that sort of system.
The next question is about youth justice conferencing. I can’t update you too much on that. There
are discussion papers floating around. In terms of youth justice conferencing the Government
has actually allocated a huge amount of funding for youth justice conferencing. I’ve heard
that it’s going to be very different to what has been in the past. Look we’re all excited
that youth justice conferencing might come back, because I don’t think you can get tougher
on a crime than having a child face their victims or the person who’s suffered as a
result of the offending or behaviour. Is there a focus on more restorative justice
practices in Queensland, case conferencing for instance?
Yes. That goes back to the youth justice conferencing. That’s all coming back. We saw an absence
of those restorative justice practices and those diversionary options for courts. They
were removed from the Youth Justice Act. I think there was some feedback from particularly
the police that they weren’t particularly in favour of some conferencing, and there
was some evidence given at the Parliamentary inquiry from a former police officer who thought
they were pretty useless exercises. Look, the case conferencing had a 97 or 98 percent
approval rate from those people who participated in them. We’re looking forward to getting
them back. The next question is, is there a capacity
for a lawyer to discuss disability or mental health in a case if there is not yet a full
report by a psychiatrist, if a parent for instance considered it acceptable?
Alright. I’m not too sure what that means that particular question. Often the reason
why lawyers rely on stakeholders so much, is that … and I’m sorry for the use of the
word stakeholders in this instance, but it’s usually those education reports that have
occurred, or those reports that are done through Evolve and Hot House and those sorts of organisations
where there has been that psychometric testing. That’s pretty much the first instance we know
that there may be an issue in terms of disability or mental health The difficulty from there
is that in terms of … and usually those reports are enough to argue doli incapax,
which is that between ten and 14 year old test I was telling you about before – sorry,
ten and 13. It’s below 14. When the child is older than that, the way the Mental Health
Court works is that we then have to get a report from a psychiatrist. So the psychiatrist
interviews the child, and also has reference back to the testing, the psychometric testing,
the cognitive testing of that particular child or IQ score.
As an aside, what I’ve realised is that an IQ score doesn’t seem to have a correlation
with a capacity to participate in legal proceedings, which I found quite interesting. So a child
with an IQ of 42 may be fit for trial, which is the term that the Mental Health Court use,
or they could be … but a child with an IQ of 59 may not be fit. So the circumstances
of the child, notwithstanding the IQ score, are very important.
I’m not too sure of this question. Pauline, can you give a bit more detail? The second
bit you say, is the witness, a parent for instance considered acceptable? Could you
give some further details about that? Is that about the mental health aspect, because obviously
a parent is in the best place to give information to the lawyer about that? Oh I see, yes. Many
of our clients are homeless at the documentation to back up disability. This is an issue. What
we do is we rely upon the parent often, and just the presentation of the child themselves.
We can ask them questions. We’ve got some skills in terms of asking questions about
their knowledge of the process to determine whether there is a fitness issue. And when
that occurs and there is no ancillary reports from Education Queensland or from any of those
other organisations I’ve mentioned, what Legal Aid will do is we’ll commission a report from
a neuropsychologist for that psychometric testing to be done.
So my rule with my lawyers is that if in doubt, get a report. If there is any doubt at all
that this person may not be fit for trial or have some other mental illness, to get
the report. There are issues when children are charged with less serious offences, so
summary offences, things like public nuisances or evade fares or minor drug offences. It’s
much harder to get a report in those circumstances, and in fact we have been knocked back on funding
for getting reports. That’s where things become highly problematic, because without those
reports lawyers often are in an ethical position where they can’t act appropriately for the
child and will want to withdraw in those circumstances. So there is a procedure we can do to get some
information, but often it’s really that psychometric testing. That’s where we’ve got to start.
Then where youth workers or support workers are highly useful is in giving the background
information, and particularly child safety officers when they can say “Look, this is
the reason they’ve ended up in custody”. Because you know with those really awful cases that
are neglect and abuse, you get the reactive attachment disorder that we’ve all seen, which
is just a horrible condition where the children flee from anybody trying to help them. So
giving that ancillary information is vital to those professionals.
In this time of technology, sexting, are young people being convicted of pornographic crimes
or is it all talk/threats? Look, we have seen some children charged,
but the police are generally pretty good in Queensland. I haven’t personally had to represent
any child who’s charged with those sexting offences, and the police will usually use
their caution powers with those kids. Because often the way those offences get reported
is through schools, obviously with the mandatory reporting, but they’re also reported by parents.
So a very common case that we’ve had is a young girl will send pornographic pictures
of herself or nude pictures of herself to a boy, and then that boy then thinks this
is the best thing that’s ever happened and then shares them with all of his friends.
The parent of the girl obviously is very upset by that, and wants those boys charged. What
the police have had to do is to say “Well yes, the boys have committed the offence,
but the girl has also committed an offence in creating the pornographic material”. Then
the boy who gets it is in possession of that pornographic material for distributing, and
the boys who get it after that could also be charged with possessing that material.
So there’s a long wave of offences that can occur. I think the police have a really common
sense view of it, because there’s more information about this getting out into the schools, and
I understand there’s specific talks happening at schools about this particular issue. But
where police will often charge we’ve found is when there’s something really nasty about
it. So for instance when a girl is being threatened by a boy or blackmailed, or something a lot
nastier than simple stupidity, that is when the police will get involved and will charge
accordingly. We have had feedback that in some jurisdictions police do charge children
with sexting. I haven’t come across any of the cases myself, but I’m told that in some
jurisdictions the police have taken a different view. But particularly in the South East corner,
that rarely occurs. I hope that answered that question.
Last question. Look, I can’t give you any advice about the Murri Court, but I can tell
you that there are Indigenous sentencing lists. I’m not too sure what’s happening with Murri
Court at this stage. It’s something that Legal Aid Queensland isn’t particularly involved
in. So unfortunately Glen I can’t give you any more information about that.
Margaret, that’s a really complex question. I won’t have time to answer that.
But Mark, can all youth access Legal Aid funding? Yes they can.
Are parents’ income used to determine eligibility for legal assistance?
No. We don’t care what the parent earns. When I first started 20 years ago at Legal Aid,
I was told that if James Packer got in trouble he’d be eligible for Legal Aid. Look, a lot
of youth workers, despite the fact that parents are wealthy, do refer their clients to Legal
Aid, and we have no problems in representing those clients because we are seen to be experts
in that field. So if you do have children like that, please give us a call.
Look, that’s all we can really talk about today. If you have any more questions, can
you give it in the feedback or the survey at the end, and we’ll try and run another
session if there’s enough interest. I’m always happy to talk to people. The questions are
fantastic. It gives me a real insight into the sort of information that you’re after.
So if you have anything else, please put it in the survey. We’ll wrap up now. Thank you.
Katherine Bowden: Thanks everyone for joining us for our webinar
on Understanding the Youth Justice System, and thank you to David for giving such an
insightful webinar to us. As he mentioned, please fill out the survey at the end. That’s
your opportunity to tell us what you want to hear about, what you’d like our future
webinars to be about. So if you can fill that out, that would be fantastic. I’ll follow
up with an email on David’s contact details, so if you have any other questions you can
either email the [email protected] inbox, or you can call David direct. Thank
you. Have a great afternoon. [End of Transcript]
Understanding the Youth Justice System presented by David Law on 23 February 2016 Page 19 of 19 Page 1 of 19