Chapters

Detention

One of the major due-process reforms introduced by the Youth Justice Act was the abolition of indeterminate sentences of imprisonment as was provided in the now repealed Child Welfare Act 1960. A guiding principle in sentencing is that the penalty imposed on a young person should be proportionate to the offence and should be no greater than an adult would receive for the same offence (s5). Another important guiding principle for sentencing is that custody should be used as a last resort and for as short a time as necessary (s5). The maximum period for detention of a youth in custody is 2 years (s81(2)).

Arrest

As explained above, the Youth Justice Act has a set of diversionary procedures in place to steer a young person away from the criminal justice system. However a youth may be arrested by a police officer on a warrant, or by a police officer without a warrant.

In determining whether or not to arrest, the police officer must believe that the offence is serious enough to warrant an arrest and that either:

  • the arrest is necessary to prevent a continuation or repetition of the offence; or
  • the arrest is necessary to facilitate the making of a police family violence order, within the meaning of the Family Violence Act 2004, an application for a family violence order under that Act or an application for a restraint order under Part XA of the Justices Act 1959; or
  • the arrest is necessary to prevent concealment, loss or destruction of evidence relating to the offence; or
  • the youth is unlikely to appear before the Court in response to a complaint and summons. (s24)

Under forthcoming amendments, which will come into effect in October 2014, a new section 24A will create duties of police officers where arresting a youth. These duties will include:

  • informing the youth of the youth’s right to refuse to answer questions, or to participate in investigations, except where required to do so by or under an Act of the State or of the Commonwealth; and
  • ensuring that, if practicable, the youth’s guardian is notified of the arrest.

A youth is not required to attend a police station with the police officer unless they are under arrest. If unsure, it is advisable that the youth enquire as to whether they are under arrest, and if so, for what offence. If they are not under arrest, they are free to go. General principles of arrest apply to youth and adults alike.

Generally, a youth does not have to answer any questions, beyond giving their name and address. It is best to be polite and cooperative, within reason. If the offence is a motor vehicle or drug offence they may also have to give their age, the name and address of the owner of the vehicle (where the young person is the driver, but not the owner of a vehicle) or, if the young person is found with a controlled substance (e.g. a drug) they may be required to give the place and name of the person from whom the substance was obtained (Traffic Act 1925, s41 and Misuse of Drugs Act 2001, s31). It is advisable that the youth tell the police officer politely that they do not wish to answer any questions until they have spoken to a lawyer or guardian. If a youth is arrested they are required to be brought before a Youth Justice Court as soon as practicable.

Police powers under the Police Powers (Public Safety) Act 2005 also have the potential to impact on young persons. Powers under the Act can only be exercised upon authorization (by the Commissioner, and in some cases, the Supreme Court) in certain circumstances where there is a risk of a terrorist act, or such an act has occurred or is about to occur. Under the Act, police may, in certain circumstances ask for a person’s identity, conduct an ordinary search or, with a Court order, a strip search, stop and search a vehicle, search and enter a premises or ask people to leave or remain in a cordoned-off area. These powers may be exercised in relation to certain persons, persons in certain vehicles or persons in certain areas, as specified in the authorization.

The young person may contact a lawyer and may challenge the order in court. Complaints about treatment by police while detained can be addressed to the Ombudsman. Persons detained can be searched or strip searched and certain identification material can be taken, in the presence of a parent or guardian. The young person must not be questioned by police while detained on an order, other than to confirm their identity.

Young people may also be detained by the Australian Federal Police under a preventative order under Commonwealth legislation, Anti-Terrorism (No 2) Act 2005, for up to 48 hours.

Bail

If a youth is refused bail by a police officer (Justices Act 1959, s34) he or she may be detained in a watch house until they are brought before a Justice of the Peace (JP), if they are arrested after hours, or a Magistrate, if arrested during business hours, to determine whether to grant bail (s25). If a JP does not grant bail, the young person is detained in custody until the next Magistrate’s Youth Justice Court sitting. Once the decision is made to remand the young person, they are detained in a remand centre (rarely), or otherwise at the Ashley Detention Centre. If detained at a remand centre, it is for as short a time as possible, until a transfer to Ashley can be arranged.

In rare circumstances, a young person may be detained in a prison service facility, in a Remand Centre when on remand or in prison, when serving a detention order. A Memorandum of Understanding exists between the Department of Health and Human Services, Youth Justice Services, and Justice Prison Service which allows for the transfer of offenders and remandees between Remand Centres, Ashley Detention Centre and the prison in certain circumstances.

Under forthcoming amendments that will come into effect in October 2014:

  • a new section 24B of the Youth Justice Act will provide a court or justice, or a police officer, who intends to admit a youth to bail must have regard to youth justice principles (such as only detaining a youth for a short a time as necessary), so far as they may apply to the circumstances of the youth, in deciding whether to impose any conditions on the bail and in determining the conditions that are imposed on the bail. Other particularly relevant principles of youth justice include:
  • that the youth is to be dealt with, either formally or informally, in a way that encourages the youth to accept responsibility for his or her behaviour;
  • that the community is to be protected from illegal behaviour;
  • a youth should not be withdrawn unnecessarily from his or her family environment; and
  • there should be no unnecessary interruption of a youth's education or employment.

All of these principles have a particular bearing on permitting and setting conditions of bail.

A new Section 24C will set out consequences for a breach of bail conditions, other than where a breach is a failure to appear before a justice or court. A breach of other bail conditions will not be an offence, but can result in the breach being taken into account in sentencing, if the youth is convicted of the offence for which they were bailed.

Aboriginal young people

Processes for Aboriginal young people who pass through the Tasmanian criminal justice system are geared toward recognition of the cultural community of the youth and the importance of cultural and community in the rehabilitation process. For example, a formal caution administered to an Aboriginal young person ‘is to be, if practicable’ administered by an Elder of the Aboriginal community, or a representative of a recognised Aboriginal corporation. An Aboriginal detainee has a recognised right to receive visits from a person acting on behalf of the Aboriginal Legal Service (ss 5(2) and 10).

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