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Blagg, Harry; Wilkie, Meredith --- "Young People and Policing in Australia: The Relevance of the UN Convention on the Rights of the Child" [1997] AUJlHRights 8; (1997) 3(2) Australian Journal of Human Rights 134

Young People and Policing in Australia: the Relevance of the UN Convention on the Rights of the Child

Harry Blagg[1] and Meredith Wilkie[2]

Studies in Australia and overseas have consistently identified police/youth relations as inherently conflictual and underpinned by mutual antipathy and intolerance. Young people, particularly those from Indigenous, migrant and ethnic minority backgrounds, those deemed to be street present, homeless or in some other way marginal to society, have disproportionately higher levels of contact with the police than other social groups. Traditionally, debates about juvenile justice have tended to take place without adequate reference to the crucial role of policing in the process. In recent years, however, there has been a growing awareness of the pivotal role the police play in configuring the juvenile justice system[3]: a role which is increasing on a number of fronts. The police are the system’s gatekeepers and its principal decision makers. They have considerable discretion, for example, over whether or not to proceed to charge or deal with matters informally. Moreover, they influence the form the system will take in individual cases (the choice of charge determines the mode of trial4) and have significant influences on key decisions such as whether to remand and bail. As a number of observers have pointed out[5] for young people in particular the police are to all intents and purposes the legal system.

This contribution emerges from a research consultancy undertaken in 5 on behalf of the Australian Youth Foundation.[6] The aim of this project was to develop template legislation to regulate police contacts with young people. The project brief was that this legislation would have to be consistent with Australia’s obligations under the United Nations Convention on the Rights of the Child (CROC or the Convention). CROC sets out basic requirements for the treatment of children (defined as all those under 18 years) and the principles of the Convention provided the epistemological and philosophical underpinnings to the research process.[7]

The model clauses developed in the research process take into account the full spectrum of potential situations in which young people’s fundamental rights could be violated by the police.[8] They encompass the critical moment of approaches on the street (stops) through to detention and release. On the way they take in issues of arrest, questioning, searches, cautions and Family Group Conferences, taking intimate samples, and photographs. In this article we will cover only those aspects of the research dealing with the question of police approaches to young people on the street and the process of arrest.

The research was conducted against a background of deteriorating relations between some sections of the Australian police and many groups of young people. At the same time concerns were being expressed that legislative and policy changes were extending the net of police controls and powers, while the kinds of provisions which ensured at least a minimal degree of support for our most disadvantaged and vulnerable young people were being eroded.[9] The national consultations undertaken during the research process identified increasing conflicts over young people’s access to the public realm, confirming the views of observers such as White[10] that the policing of what has traditionally been called public space is at the core of police/youth conflict in modern society.

The consultations also unearthed some deep and significant differences of opinion between the police and youth workers and lawyers over the issue of street policing. Both sides of the debate tend to see the issue in different terms. The police see the issue as largely one of order maintenance, whereas youth workers and youth lawyers view it as one of law and the defence of human rights. For their part the police remain culturally and organisationally disinclined to view, or critique, their actions from a human rights perspective. Individual rights, where they are acknowledged to exist, are seen to be of a provisional nature and subordinate to matters of public interest as defined by police policy: they certainly have less force than the powerful imperative to keep the streets clear. So, for example, young people’s rights of access to public spaces come a long second to the rights of consumers and store owners to conduct business: or as one police officer succinctly put it, young people may have a right to be in public but they have no business to be in public.

From a police point of view the law can be either a help or a hindrance. Occasionally they will mould and shape a situation until it will come within the ambit of the legal system and allow them to take the kid off the streets: simply implementing the letter of the law will not always allow them the flexibility they need to maintain social order and keep the peace as they see it. This is reflected in a not uncommon scenario where the most serious and numerous charges laid in court (assault police for example), will have arisen out of the police intervention itself. This is a fact which has led some commentators to suggest that some confrontations are deliberately manufactured in order to create an arrest situation.

We found it helpful, therefore, to see policing not only as the front end or sub-system of the larger juvenile justice system (although it does fulfil this function) but as a self sustaining system in itself with its own dynamics, inputs, outputs, outcomes and goals. In this way we can look at the various components of police practice as possessing a service function for the larger system (through arrest, gathering evidence etc.) and as ends in themselves (eg. providing a salutary short sharp shock, administering kerb-side justice, maintaining public order, keeping the streets clear).

Reacting to Youth

Reiner[11] summarises the role of the police as being one of moral street sweeping. The police are under constant pressure to “do something” about publicly visible problems. An example we were presented with throughout our consultations was that of demands by local trades and business associations to “clean up” shopping zones of young people. Business proprietors, along with “moral entrepreneurs” and the media, amplify panics about young people “taking over” towns or “laying siege” to them.

A large number of the charges brought against young people when arrested by the police fall into the category of “victimless”, justice, or order offences. Charges are frequently laid following an interchange between young people and police in public and are generally resisting arrest, using obscene language, assaulting police: known as the “holy trinity” in Western Australia, the “trifecta” in New South Wales, “ham, cheese and tomato” in Queensland. Youth workers and lawyers interviewed through the consultation process maintained that many arrests followed on from approaches made by police without there being grounds for “reasonable suspicion” that an offence had been committed and were generally “fishing expeditions”.

The problems frequently come down to the issue of authority, with challenges being made to young people to see if they will defer to the authority of the uniform. The young person’s “attitude” and failure to show respect may have a significant influence on the outcome. Signs of a “bad attitude” in this respect may include knowledge of legal rights. The interaction can become a confrontation or contest of male prowess.[12] However, in reality it can never be an equal one[13] because in the last instance the officer has the option of resorting to a range of powers, including the legitimate resort to force.

The police are sometimes the object of abuse by young people and find them inherently difficult to deal with. A number of studies have shown that the police consider young people to be aggressive, anti-police and defiant.[14] The police may tend to see the order maintenance techniques they employ, such as name checking and making youth move on, as unproblematic and legitimate means of heading off potential trouble in public.[15] The police also have a highly developed sense of the potential for youth to be violent and cause trouble.[16] Research by Alder et al[17] found that 80% of young people they contacted had been stopped and spoken to by the police at some stage. The proportions for Aboriginal and “marginal” youth were higher — 94% and 96% respectively.[18] Similar levels of contact were identified in research carried out in New South Wales.[19] There is also evidence that the encounters between youth and the police frequently involve violations of young people’s rights.

A survey conducted by the Federation of Community Legal Centres in Melbourne in 1991, although not confined to young people, documented an ongoing problem of police harassment, violence and intimidation, mainly against those under 30.[20] While a study of young people from Vietnamese backgrounds in Footscray by Camm in 1994, set against a background of media manufactured fears of “Asian gangs” and “ethnic violence”, found that many had developed negative attitudes toward the police on the basis of their own or their friends’ experiences of police intimidation.[21]

Research carried out by the Youth Advocacy Centre in Brisbane reported that “street harassment of young people” was a common problem.[22] Many young people from marginalised backgrounds spend most of their lives in public. Because they exist outside of the protection of social networks of care and support, their behavior is highly visible.[23] Young people identified as street present and/or homeless by the police and authorities are vulnerable to high levels of police scrutiny. This group is high risk in terms of themselves becoming victims of violence[24] as well as sexual exploitation and abuse: although it is this group who are most often associated within both official and popular discourse with disorder and crime and consequently denied “victim status.[25]

Research has found that over half of the young men and just under half of the girls interviewed have reported being physically hurt by the police.[26] Violence, in this context, included kicking, punching and pushing. There was also evidence of threats and intimidation and sexual intimidation of girls. Many of the incidents occurred on the street but the majority took place at the police station. A study in NSW of police treatment of homeless youth reported high levels of police mistreatment and abuse.[27] Other research suggests that violence, threats and intimidation are not one off incidents but are routine aspects of street policing where particular groups of young people are concerned.[28] Local research in Perth of young people who use legal services found that 30% reported being the victims of physical violence in police custody.[29] The fact that the greater proportion of police resources are expended on street policing and that it consumes most of its personnel — over 65% in some accounts[30] — makes it inevitable that the police will have disproportionate contact with those whose “life paths” are restricted to the street.

Social and economic change, patterns of consumption, demographic upheavals, labour market changes, urban redevelopment and so on have created new sites of urban conflict and social fragmentation. Policing is becoming steadily more integrated into the control of the consumer society: the police order maintenance role is increasingly being deployed to guarantee orderly consumption.[31] Inevitably this will generate pressures on them to deny access to those who cannot consume: they in turn become alienated, anomic and embittered. As White observes, the practice of social exclusion has governed approaches to the policing of the modern social realm:

enforcing a kind of spatial apartheid, with an emphasis on demarcating the affluent consumer from the unrespectable non-consumers.[32]

This new partitioning of respectable zones of consumerism and denial of access to non-consumers is being achieved by resort to some old, tried and true formulas. The post-modern consumers in the shopping malls are being defended from the undeserving, disreputable poor by some pre-modern methods, based upon coercion and criminalisation.[33]

Social Cleansing

This practice of denying certain targeted groups access to public space is a feature of some new crime prevention initiatives which operate by cleansing social space of unwanted groups of people. The cleansing metaphor, which has some chilling contemporary and historical resonances when articulated with images of ethnicity and race, surfaces routinely in the contemporary language of urban order maintenance. Cunneen argues, on the basis of research conducted in NSW, that in relation to Aboriginal people such operations are “profoundly political”. They are frequently the culmination of law and order campaigns constructed by alliances of police, councils and Chambers of Commerce:

the whole notion of “cleansing the streets” in areas with large Aboriginal populations has a symbolic resonance which echoes moral and racial purity.[34]

Similar concerns have been raised in connection with the policing of non-European people in Perth, Melbourne and Sydney.[35] Chan, summarising a number of surveys carried out in NSW, identifies consistent themes in the policing of young people from non-English speaking backgrounds and their families, including police harassment, physical abuse, victimisation and brutality during interrogation.[36] The cleansing metaphor and other imagery of young people being refuse to be swept away, surfaces in a number of policing initiatives.[37]

In South Australia pressure from shops and businesses to clear newly gentrified areas of Port Augusta of young Aboriginals led to the police dispersing groups of youths under the guise of keeping the peace: an action which the Police Complaints Authority found unreasonable and beyond the powers permitted under common law.[38] Such legal niceties, however, have little impact on police practice which continues to receive the unqualified backing of State politicians, eager to support new initiatives such as the euphemistically termed “Street Safety” proposals in NSW; a code for saturation policing of areas where young people gather.

Clearly there are problems with the current situation in regard to street policing as it effects young people. Looking at developments overseas offers little comfort. Indeed if Australia is to maintain its addiction to American solutions then it is surely only a question of time before “zero tolerance” policing (reputed, by some, to have reduced crime rates in some big American cities such as New York) will catch on and many of the problems we have identified thus far will be exacerbated. Current Australian legislation appears largely incapable of preventing this misuse of the criminal justice system. Some fundamental changes are required to the laws governing police powers in Australian States and Territories to increase protections for young people. Before examining Australian laws in detail and mapping out directions for change we will briefly explore the relevance of the Convention.

Best Interests of the Child

Article 3.1 of the Convention requires that the best interests of the child shall be a primary consideration ... in all actions concerning children. While what is in a child’s best interests may be a matter for debate, some guidelines are proffered by the Convention itself. In a range of articles the Convention is concerned to protect and guarantee each child’s physical integrity. For example, article 6 recognises the child’s inherent right to life; article 37 prohibits the use of torture or other cruel, inhuman or degrading treatment or punishment and the imposition of capital punishment; article 24 seeks to ensure that every child enjoys the highest attainable standard of health; and article 34 seeks to protect children from sexual abuse and exploitation.

Flowing from the concern for the child’s physical well-being, but extending further to encompass all other aspects of the child’s personality, are those articles concerned to ensure to all children the conditions in which they can grow to maturity in a way which realises their full human potential and is consistent with human dignity. For example, article 27.1 declares the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. A number of articles direct the attention of decision-makers to the age of the particular child and require treatment to be appropriate to persons of that age (articles 37(c), 40.1, 12.2). The Convention also recognises that children require special protection, that they are peculiarly vulnerable and that they are in the process of maturation.[39]

Fundamental Rights and Freedoms Shared

In the main, children enjoy the same fundamental rights and freedoms as adults, and enjoy them to the same extent. The International Covenant on Civil and Political Rights (the ICCPR) makes no distinction between adults and children in their enjoyment of rights and freedoms. The freedoms of expression (article 13), association and peaceful assembly (article 15) and privacy (article 16) are each expressed in the Convention without reservation relating to the age or capacity of the child. There is no warrant, therefore, for the denial to any child, or to children generally, of any of these freedoms simply on the ground of minority. The Convention is explicit that it is the right and responsibility of the child’s parents (or legal guardians) to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised by the Convention (article 5). It is quite clear that this provision would not support a complete denial of these rights, even by the child’s parents. A priori these rights must not be denied or abrogated by the state (subject to considerations recognised in the declaration of any freedom such as public safety and order, national security, and the like).

Translating Rights into Practice

The Convention addresses the institutions of criminal justice in terms markedly similar to those adopted by the ICCPR. We have taken the view that the States Parties to the Convention intended by their agreement that the rights declared therein would be effectively secured to the children intended to benefit. Consistent with the explicit intention of the Convention, special measures appropriate to the age and capacity of every child must be taken to ensure that he or she can effectively assert and exercise his or her due process rights. Without such measures, the recognition of children’s due process rights would be meaningless. We recommend such special measures which take account of children’s comparative vulnerability and ignorance, their dependence and their right to special protection and care (article 3.2), and their need for special assistance (article 5) to enjoy their basic human rights in full equality. The result is a regime quite different from that currently in place for adults. The latter is a regime which presumes that every adult has the knowledge and the capacity to assert and enjoy his or her rights, whether or not he/she chooses to do so. The regime we recommend for children reverses this presumption.

In particular, we recognise that, in any contact with a police officer, the child depends on the conduct of the officer for the enjoyment of their rights, relies on the officer to fully respect those rights and is at the mercy of any officer who chooses to infringe or violate those rights. We therefore place the full burden for respecting the child’s rights and for protecting the child from rights violations on the officer dealing with the child.

Reducing Police Discretion

We have identified the crucial gatekeeping role played by the police. This means that it is they who make the key decisions whether or not to open the gates to the system. Studies have shown that the importance of this role cannot be over-emphasised as the decisions they make profoundly influence the child’s future pathways through that system,[40] and there is a demonstrable link between frequency of contact and arrest and the development of long term criminal careers.[41] Indeed these studies show that frequency of arrest rather than the seriousness of charges appears to be the crucial variable where the careers of youths from ethnic minorities are concerned. The over-policing of Aboriginal youth has been identified as a contributory cause of their over-representation in custody; one study reveals that Aboriginal youth in Western Australia are roughly 32 times more likely to be arrested than non-Aboriginal youth and that they are also 32 times more likely to be sentenced to detention.[42]

The policing process must, therefore, be at least as rigorously constrained within a rights framework as the court and trial process. The significance of this is highlighted by the fact that more than nine out of every ten children charged before the courts will enter a plea of guilty. These children presently forego the procedural due process of the trial, including the opportunity to challenge the decisions and conduct of police. Therefore the contemporary Australian reality is that it is not possible to secure for children and young people the procedural rights to silence and to be presumed innocent until proven guilty by attention to the trial process alone. Attention to policing is an essential pre-requisite.

In order to safeguard children’s rights it is necessary to limit police discretion as much as possible. Beijing Rule[43] No. 6 recommends a measure of appropriate discretion at all stages of juvenile justice administration (the aim being to enable account to be taken of the varying special needs of juveniles and to encourage the promulgation and utilisation of a range of alternative measures). However, there is evidence that the police are biased in their use of discretion and do not exercise their discretion in the best interests of children and young people, particularly those from ethnic minority backgrounds.[44]

Police control of the prosecution process goes deep into the system in Australia since it is usually they who lay charges in court. Moreover, the individual police officer (the arresting officer) still makes the key decision to prosecute in most Australian States and Territories. Decisions made on the street or immediately following a street encounter are, with little intermediate review or screening, quickly translated into judicial/legal events.

Enforcement

Declaring rights is one step in securing their enjoyment. A necessary corollary is enforcing respect for the rights of others. Police and prison officers share, in peacetime at least, the responsibility for exercising the most intrusive and coercive powers in the armoury of a liberal democratic state. The very fact of their power requires recognition in the strongest terms. The ramifications of abuse of this power are so serious for the individual and so far-reaching for the community as a whole that any abuse must be met with the surest and strongest sanctions. The argument is a fortiori when the victim of an abuse of power is a child to whom the state must accord such protection and care as is necessary for his or her well-being (CROC article 3.2).

Moreover, the police must be recognised as an arm of the state. It is to the police directly that the Convention speaks when it requires States Parties to respect and ensure the rights set forth in this Convention to each child ... without discrimination of any kind (article 2.1); to make the best interests of the child ... a primary consideration in all actions concerning children (article 3.1); and to ensure the child such protection and care as is necessary for his or her well-being (article 3.2).

Thus, any abuse of police power must at least result in the evidence so obtained being inadmissible. We make recommendations, too, to recognise the fact that most charges are determined on a plea of guilty, thus without overt reliance on the illegally-obtained evidence. A charge based on such evidence must be screened out by prosecutors and may not be proceeded with. Where such a charge is nevertheless presented in court, it must be dismissed.

Earlier we sketched out some of the routes along which youth/police encounters are transformed into matters of criminal law: how issues of order on the street become grist for the criminal justice system. Let us now examine in more detail the laws which currently enable this transformation to be accomplished and begin to reconstruct them.

Current Law

Police in Australia have no general power to stop people in public places and demand to know their name and address or, generally, their business, much less to frisk them or to search their bags and vehicles, or otherwise to seek to obtain evidence of an offence or that an offence has been committed. Citizens, in other words, are not subject, without good reason, to police interference, and police have no general right to investigate persons in case an offence might have been committed.[45]

Most Australian jurisdictions, however, give police a right to make preliminary investigations of this kind in defined circumstances. The drafting of these empowering provisions, the rarity with which they are tested in the courts and the common experience that, when tested, police actions are almost invariably upheld,[46] all suggest that the limitations imposed on police powers in the interests of citizens’ liberty are often readily circumvented. The jurisdiction which currently best protects citizens’ civil liberties in the police street contact context is the Commonwealth.[47]

Name and Address

In all but NSW and Queensland, a police officer has a general power to demand from a person his or her name and address when the officer “believes on reasonable grounds” or “has reasonable cause to suspect” that the person may be able to assist in inquiries in relation to an offence or suspected offence.[48] This is an objective test; the right of the officer is not dependent solely on his or her own subjective beliefs. However, the question whether the power was properly exercised on the basis of this objective test is rarely raised in court proceedings.[49]

Only the Commonwealth, the NT and Victoria require that the officer inform the person of the reason for the request, while in the Commonwealth, ACT, NT, South Australia and Victoria the officer must divulge his or her own identifying details on request.[50] Once these requirements (where they exist) have been satisfied, it is an offence to refuse or fail to provide name and address as requested. Moreover, in Tasmania and WA refusal or failure to supply name and address is a ground in itself for arrest without warrant.[51]

Police in two Australian jurisdictions have a move-on power independent of the general stop power outlined above. In the ACT an officer who has reasonable grounds for believing that a person in a public place has engaged, or is likely to engage in violent conduct may direct the person to leave the vicinity.[52] It is an offence to disobey such a direction without reasonable excuse.[53]

The South Australian provision is much broader and operates as a general offence prevention strategy.[54] It may also permit the moving-on of by-standers and onlookers to an offence or arrest, and the clearing of obstructions to traffic, including pedestrian traffic, unrelated to any actual or apprehended offence. It is an offence to disobey a dispersal order.[55]

Reasonable Force

The legitimate right to resort to force and the monopoly of violence, are, in the last instance, the unique characteristic of the police. Police are entitled to use reasonable force — such force as is reasonably necessary in the circumstances — when preventing the commission of an offence, effecting an arrest or preventing the escape of a person lawfully under arrest. What is reasonable force rarely arises for independent, objective review. When it does so, the independent reasonable person is placed at the scene and required, like the arresting officer, to make a judgment in the heat of the moment.[56] The result is that the officer’s subjective judgment of reasonableness is very likely to be upheld.

Where the suspect resists arrest, the officer is entitled to increase his [or her] force in proportion to the force of the resistance he [or she] is encountering.[57] However, force likely to result in grievous bodily harm or death may only be used in the Code jurisdictions[58] where the offence attracts a maximum penalty of life imprisonment. At common law, mortal force could be used in the case of felonies (which once all attracted the death penalty) but not in the case of misdemeanours.[59]

In the ACT a recent Crimes Act amendment permits the use of deadly force by an arresting officer where:

(a) the officer believes on reasonable grounds that it is necessary to do so to protect life or to prevent serious injury to the officer or another person; and

(b) if the person is attempting to escape by fleeing — the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other manner.[60]

Pre-Arrest Searches

In some jurisdictions police can also detain and search a person stopped in such circumstances where the officer has reasonable grounds for the search. Ostensibly this search power is limited to a search for stolen property in WA and the ACT.[61] However s 23 of the Misuse of Drugs Act 1981 (WA) allows the police unlimited scope to search where there is a suspicion that drugs are present. In NSW the officer can also search for anything used or intended to be used in the commission of an indictable offence,[62] and in South Australia the power also extends to a search for “evidence of the commission of an indictable offence”.[63]

There is no Commonwealth or Victorian pre-arrest search power and the Tasmanian power is limited to a search for a “poisonous thing”.[64] The NT awards the broadest search power for investigative purposes. Persons can be searched when suspected on reasonable grounds of carrying an offensive weapon or dangerous drugs or alcohol which has been consumed in a public place.[65] More generally, there is a general power to search the person, clothing and property of “a person reasonably suspected ... to be carrying anything connected with an offence” provided the circumstances are of “such seriousness and urgency as to require and justify an immediate search” without a warrant.[66]

Stop and search powers related to prohibited drugs and the use of motor vehicles may also be used to target young people specifically. In Queensland, where an officer “reasonably suspects” that a drug offence has been committed, and “reasonably requires to know information about a person in order to assist” the investigation of that offence, the officer can require the name, address, date of birth and place of birth (and verification of the same).[67] Moreover, police may “detain” and search people (and their possessions) reasonably suspected of carrying (or containing) drugs or drug paraphernalia.[68]

“Welfare” Detentions

In a number of jurisdictions there are also special police powers to stop and detain people in particular categories unrelated to criminal offending. One such power which clearly applies only to children and young people is the power to stop, question and, if necessary, detain school-aged children who should apparently be at school. The truancy provisions in NSW, South Australia and the NT all make such provisions.[69]

In all jurisdictions, barring Tasmania[70] and the Commonwealth, the police are also empowered to detain children considered or believed to be in need of care and/or protection.[71] This detention is limited to removing the child from an “at risk” situation and delivery to the appropriate welfare service. In 1993 South Australia introduced the most restricted of these welfare powers. A police officer may remove a child only when he/she believes, on reasonable grounds, either that (i) the child is in a situation where his/her safety is/would be in serious danger and no guardian is present or (ii) the child is “at risk” and his/her safety is in imminent danger in the company of a guardian or guardians.[72] Other than in these emergency situations, at risk children are to be protected by welfare officers rather than police officers.

The most extensive offence prevention and welfare detention power over children has recently been introduced in NSW. Part 3 of the Children (Parental Responsibility) Act 1994 (NSW) authorises a police officer to demand of a child in a public place his/her name and age and his/her parents’ address. This power is exercisable only where the officer believes on reasonable grounds that the child is 15 years of age or younger and not under the supervision or control of a responsible adult. The officer is further authorised to detain the child73 for the purposes of taking him/her home or to a prescribed place of care.[74] This power is exercisable where the officer considers that such detention “would reduce the likelihood of a crime being committed or of the [child] being exposed to some risk”.[75] Thus, this is a very broad detention power indeed.

In WA and the NT police also have a power to detain persons, including children, found drunk in public. Such persons can be detained in police custody but are not charged with any offence.[76]

Respecting Children’s Rights

Article 37(b) of the Convention prohibits arbitrary deprivations of liberty. This is a fundamental guarantee of the security of the person. Yet it is often supposed that a deprivation of liberty executed in accordance with the law or, common in Australia, in the exercise of a broad policing discretion is automatically free from the taint of arbitrariness. It is clear, however, that a lawful deprivation of liberty may yet be arbitrary.[77] The notion of arbitrariness denotes an action which is “unreasonable” [78]“unjust”[79], “an abuse of power by public bodies”[80], and “incompatible with the principles of justice or with the dignity of the human person”.[81]

An arbitrary act was any act which violated justice, reason or legislation, or was done according to someone’s will or discretion; or which was capricious, despotic, imperious, tyrannical or uncontrolled.[82]
While it may be difficult to define clearly the outer limits of arbitrariness, the core of the concept is uncontroversial. An exercise of discretion (such as a deprivation of liberty) will be arbitrary:

  1. when one of the criteria on which that exercise is based is discriminatory on prohibited grounds; where, for example, a person is selected for more intrusive or disadvantageous treatment because of his/her race, sex, age or sexuality;
  2. when the motive for the particular exercise of discretion is not a purpose authorised by law; where, for example, the policing objective is one of intimidation or instilling fear rather than preventing an immediate risk of criminal offending; and
  3. where no guidelines direct the exercise of the discretion and the official exercising it is answerable to no-one for the manner of its exercise; as in the case of unfettered police discretion and unenforceable police guidelines.

More difficult to define, but clearly encapsulated within the notion of arbitrariness, are actions “contrary to accepted notions of justice”.[83] We are confident that any police behaviour which is itself a criminal offence or in breach of police guidelines would vitiate a deprivation of liberty even where that deprivation would otherwise be free from arbitrariness. Thus, for example, the use by police of offensive or abusive language, of threats of any kind or of a level of force not warranted by the circumstances would be unacceptable to Australian law notions of justice.

It seems clearly accepted that a public police search of the person is a “deprivation of liberty” for the duration of the search.[84] At least when the person stopped is a child, the simple demand for name and address is also a deprivation of liberty for the duration of the exchange.[85] The statutory powers of police to demand name and address, coupled with the imposition of a penalty for failing to comply, strongly support the view that the individual is not free to leave the company of the officer until the exchange is completed to the officer’s satisfaction.

Police contacts with children and young people which are not based on reasonable grounds for suspecting wrongdoing are arbitrary. The explanation for such unsupported contacts is too often that police “single out” young people as “more likely” to be “up to something” or that police desire to prevent in advance some feared behaviour. Such explanations amount to arbitrariness, discrimination and harassment.

Police conduct of concern may be limited to requiring name and address from a young person without just cause. Even this conduct breaches the child’s rights: to privacy (ICCPR article 17; CROC article 16.1), to liberty (ICCPR article 9; CROC article 37(b)), to freedom of peaceful assembly and movement (ICCPR article 21; CROC article 15). Where children are targeted for such treatment, their right to freedom from age discrimination is infringed (ICCPR article 2.1; CROC article 2.1). Children targeted because of their race or sex would also be victims of arbitrary deprivation of liberty. People have an equal right to enjoy their rights and freedoms (such as freedom of association, CROC article 15) without unlawful discrimination (CROC article 2.1).

The extreme power differential, coupled typically with the “near peer” phenomenon – that is closeness in age, maturity and experience – between young people and police in such street contacts, often contribute to a severe escalation of conflict which can lead to the young person’s arrest for an offence which would not have been committed but for the initial unjustified contact. This is another significant reason for strictly limiting police contacts with young people in public places.

Escalations can include on-the-spot frisking and searching of possessions accompanied with a measure of force, humiliation and intimidation; unlawful orders to “move on”; assault and abusive language. These are in themselves unlawful and contrary to the Convention. They are also more serious interferences with privacy, security of the person, freedom from arbitrary deprivation of liberty and freedom of association and peaceful assembly.

Placing Rights in Law

Of all Australian legislation that of the Commonwealth best balances the rights of the citizen with the demands of law enforcement. It is our belief that all police “stops” of young people should be unlawful unless demonstrably justifiable. This, we believe, is consistent with Australia’s obligations under CROC. The vulnerability of children and the dangers of escalation of police street contacts, together with the fundamental nature of the rights at issue, dictate that the strongest sanctions be imposed for breach of the prohibition of arbitrary stops. A police officer should be empowered to stop a child only where he/she has reasonable grounds to believe that the child has committed or is about to commit an offence or is a material witness to the commission of an indictable offence. A stop made for any other reason would be unlawful detention. The court trying or sentencing a child on a charge laid pursuant to a stop would need to be satisfied of the lawfulness of that stop before admitting evidence tendered by the prosecution. Welfare-style interventions should be prohibited. Police have the same responsibility as any other citizen to protect children in danger and should not require a panoply of enabling legislation that acts as a front for street policing by another name.

Where a stop is justifiable, the child’s fundamental rights must continue to be respected and protected. Persons deprived of their liberty must “be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of their age” (CROC article 37(c)). Legislation should recognise the special vulnerability of children and provide additional protections for their rights and freedoms.[86]

The child’s right to silence is a fundamental one. It is one which children are more likely to find difficult to comprehend and difficult to rely upon unaided. The purpose of an authorised stop is to identify potential suspects and witnesses; it is an element in the investigation and prevention of offences and not a step in the prosecution process. Legislation must ensure that the stop power is not used to circumvent post-arrest safeguards imposed in the interests of the right to silence (such as the caution and the right to legal advice). The vulnerability and ignorance of children must not be exploited to obtain pre-caution admissions. Rather the exchange between officer and child during a stop/detention must be restricted to achieving the purpose of the stop.

We propose that a stop on reasonable grounds as defined above must also be conducted without the use of racist, sexist or abusive language and without the use of force other than that which is strictly necessary[87] to effect the stop and detention of the child and proportionate to the urgency of the need to effect the stop.[88] The officer should also ensure that the child is not subjected to public scrutiny or humiliation. It is also crucial that the officer promptly informs the child, in a language and in words which the child understands, why he/she has been stopped and the child’s legal obligation to remain in the officer’s company and to provide her/his name and address. The officer should inform the child that he/she will not have to provide other information and will not be searched unless a decision is made to detain him/her for the purpose of issuing a formal caution or charge. It should be the responsibility of the officer to ensure that the child understands all of the information provided to him/her. Any evidence obtained in breach of this section would be automatically inadmissible, and not subject to the discretion of the court, except to the extent the child seeks to tender the evidence. The court thus trying or sentencing a child on a charge laid pursuant to a stop must be satisfied of the lawfulness of that stop before admitting evidence tendered by the prosecution.

A public search of the person is a gross invasion of privacy, an interference with the security of the person and a humiliating and degrading experience, especially for children. In all Australian jurisdictions the pre-arrest search of the person is strictly limited (search of vehicles is more broadly permitted). In Victoria and the Commonwealth there is no pre-arrest search power. Any search of the person of a child must, consistent with the requirements of CROC article 37(c), be conducted away from the public gaze but under appropriate supervision. Legislation should ensure that no search of the person, clothing or possessions of the child may be undertaken in the course of a stop unless the child has been detained for the purpose of issuing a formal caution or charge.

The restrictions we wish to see placed on police discretion would protect the human rights of some of our most vulnerable children and young people. They should also be read in conjunction with the restrictions we would like to see imposed on the police powers to detain and interview young people without adequate support mechanisms.[89] CROC offers Australian jurisdictions, as it does the world, a range of principles relevant to the task of creating policing systems untainted by capriciousness, arbitrariness and discrimination against the vulnerable and marginalisised. Australian States and Territories should ensure that the Convention’s aims of securing justice and protection for children become their own by incorporating its principles into all legislation and policy effecting them.


[1] Research Fellow, University of Western Australia.

[2] Senior Lecturer in Law, Murdoch University.

[3] Blagg H and Wilkie M Young People and Police Powers (Australian Youth Foundation, Sydney 1995); Juvenile Justice Advisory Council Green Paper: Future Directions for Juvenile Justice in New South Wales (Juvenile Justice Advisory Council, Sydney 1993); New South Wales Police Youth Policy Statement (New South Wales Police, Sydney 1995); Attorney General’s Department Discussion Paper on Family Group Conferencing and the NSW Juvenile Justice System (NSW Attorney General’s Department, Sydney 1996); Wundersitz J The South Australian Juvenile Justice System: A Review of its Operation (SA Attorney Generals Department, Adelaide 1996).

[4] Ashworth A The Criminal Process (Oxford University Press, Oxford 1994) p 7.

[5] See for example Dobash R et al Ignorance and Suspicion: Young People and Criminal Justice in Scotland and West Germany (1990) 30(3) Brit J Crim 306: Alder C et al Perceptions of the Treatment of Juveniles in the Legal System (National Youth Affairs Research Scheme, Canberra 1992); White R and Alder C (eds) The Police and Young People in Australia (CUP, Melbourne 1994).

[6] In 1994 the Australian Youth Foundation commissioned a research team located at the Youth Legal Service in Perth, Western Australia, to undertake a research and consultation project designed to develop model legislation to govern police practice in relation to young people, see Blagg and Wilkie op cit.

[7] There were a number of other agreements relevant to this undertaking. The International Covenant on Civil and Political Rights, for example, provides some relevant minimum standards. Similarly a number of United Nations Guidelines, such as the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, adopted by the General Assembly in 1985 (commonly known as the Beijing Rules) provide base criteria for the humane administration and management of the criminal justice system as it affects children and young people. The research team was also guided by the Royal Commission into Aboriginal Deaths in Custody (AGPS, Canberra 1991).

[8] Blagg and Wilkie, op cit.

[9] Sandor D The Thickening Blue Wedge in Juvenile Justice in Alder C and Wundersitz J (eds) Family Group Conferences and Juvenile Justice: The Way Forward or Misplaced Optimism? \t(Australian Institute of Criminology, Canberra 1990)

[10] White R No Space of Their Own (Cambridge University Press, Cambridge 1990).

[11] Reiner R Policing and the Police in Maguire M, Morgan R and Reiner R (eds) The Oxford Handbook of Criminology (Clarendon Press, Oxford 1995).

[12] Youth Justice Coalition Kids in Justice: A Blueprint for the 90s (Youth Justice Coalition, Sydney 1990).

[13] Alder C Police, Youth and Violence in Gale F, Naffine N and Wundersitz J (eds) Juvenile Justice: Debating the Issues (Allen and Unwin, NSW 1993).

[14] Cowie M Struggle for the Streets: Police and Homeless Young People (Academic Factory Publishing, Melbourne 1992); Alder et al, op cit; Donovan Research Police Perceptions of Youth (Police Youth Liaison Committee, Perth 1990).

[15] The use of the Summary Offences Act 1988 in New South Wales to arrest young people and Aborigines for offensive language shows that the police will evoke the law to resolve situations where there is nothing more serious than minor “incivility” at hand. Obscene language is often vented in frustration in situations where the police themselves have made the initial approach.

[16] National Committee on Violence Directions for Australia (Australian Institute of Criminology, Canberra 1990).

[17] Alder et al, op cit.

[18] Ibid pp 21-22.

[19] Youth Justice Coalition of NSW/Consortium Nobody Listens: the Experience of Contact Between Young People and the Police (Youth Justice Coalition of NSW, Sydney 1994).

[20] Federation of Community Legal Centres Report into Mistreatment By Police 1991-1992 (Federation of Community Legal Centres, Melbourne 1993).

[21] Camm J Young People’s Perceptions of Safety and Security Issues Within the Footscray Area (Melbourne, City of Footscray 1994) pp 28-30.

[22] Youth Advocacy Centre Juvenile Justice: Rhetoric or Reality: A Critique of Queensland’s Juvenile Justice Act 1992 (Youth Advocacy Centre, Brisbane 1993) p 22.

[23] See O’Connor I and Sweetapple P Children in Justice (Longman, Melbourne 1988); Brogden A and Brodgen M From Henry VIII to Liverpool 8: The unity of police street Powers (1984) 12(1) International Journal of the Sociology of Law 35; Brodgen M et al Introducing Police Work (Unwin, London 1988).

[24] Alder C Victims of Violence: The Case of Homeless Youth (1991) 24(1) Australian and New Zealand Journal of Criminology 1.

[25] Blagg H Fighting the Stereotypes in Blagg H, Hughes J and Wattam C (eds) Child Sexual Abuse: listening, hearing and validating the experiences of children (Longmans, Essex 1988).

[26] Criminology Department, University of Melbourne (Melbourne, 1990) p 7.

[27] Bacon J and Irwin J If I Had a Gun I would Shoot The Lot (Youth Justice Coalition, Sydney 1990).

[28] White R, Underwood R and Omelczuk S Victims of Violence: the view from the youth services (1991) 24(1) Australia and New Zealand Journal of Criminology 25.

[29] Cited in White R Police Vidiots (1993) 18(3) Alternative Law Journal 46.

[30] Potas I, Vining A and Wilson PR Young People and Crime: Costs of Prevention (Australian Institute of Criminology, Canberra 1990).

[31] Reiner op cit; Davis M Cities of Quartz: Excavating for the Future in Los Angeles (Vintage, London 1985).

[32] White R Shopping for a Space of their Own: Young People, Urban Forms and Social Exclusion: Unpublished Paper, University of Melbourne 1994 at 19.

[33] Bauman Z Life in Fragments: Essays in Postmodern Morality (Blackwell, Oxford 1995).

[34] Cunneen C Constructing A Law and Order Agenda (1989) 2 No. 38 Aboriginal Law Bulletin 6 at 9.

[35] Chan J Policing Youth in Ethnic Communities in White and Alder, op cit; Wilson PL and Storey L Migrants and the Law (Footscray Community Centre, Victoria, Footscray 1991); Youth Justice Coalition of NSW, op cit.

[36] Chan, op cit, p 179.

[37] In the case of Operation Sweep in Western Australia, the police used s.138B of the Child Welfare Act 1947 as a policing power and detained young people on the street considered to be without adult control or “at risk”. In one weekend 118 young people were reported to have been detained in Fremantle alone. Other Australian police operations aimed at youth have had names such as Hoover (NSW) and Dirt (Qld).

[38] Police Complaints Authority Annual Report (SA Attorney General Department, Adelaide 1992) p 53.

[39] See in particular articles 5, 12, 14.2, 18, 32, 33 and 34.

[40] Luke G and Cunneen C Aboriginal Over-representation and Discretionary Decisions in the NSW Juvenile Justice System (Juvenile Justice Advisory Council, Sydney 1995); Gale F, Bailey-Harris R and Wundersitz J Aboriginal Youth and the Criminal Justice System: The Injustice of Justice (Cambridge University Press, Cambridge 1990).

[41] Luke and Cunneen, op cit .

[42] Crime Research Centre Aboriginal Youth and the Juvenile Justice System of WA (WA Aboriginal Affairs Department, Perth 1996).

[43] The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, op cit.

[44] White and Alder, op cit.

[45] This is not to suggest that people may not voluntarily assist police.

[46] Examples of recent cases on pre-arrest searches include Wilson v R (unreported, SA Supreme Ct CCA, 19 May 1994); Gibson v Ellis (1992) 59 SASR 420; Ohlsen v Jones (1991) 53 A Crim R 136. In each of these cases it was claimed that the search was unlawful. Each defendant was unsuccessful either because the court held the search to be lawful or because the court refused to exercise its discretion to exclude the evidence obtained unlawfully.

[47] Crimes Act 1914 (Cth), s 3V.

[48] Police Act 1927 (ACT), s 20; Police Administration Act (NT), s 134; Summary Offences Act 1953 (SA), s 74a; Police Offences Act 1935 (Tas), s 55A; Crimes Act 1958 (Vic.), s 456A; Police Act 1892 (WA), s 50. Section 3V of the Commonwealth Crimes Act 1914 also requires that the officer has reasonable grounds to believe that an offence has been committed. These limitations do not pertain elsewhere.

[49] An exception is the case of Kelly v Dann (1992) 8 WAR 225. Justice Ipp discussed the notion of “reasonable grounds” or “reasonable cause” and held that it is insufficient for the officer to entertain a suspicion even though he genuinely believes that suspicion to be reasonable.

[50] Failure to do so attracts a penalty under Commonwealth, NT and Victorian legislation.

[51] See also Misuse of Drugs Act 1986 (Qld), s 22(3).

[52] Police Act 1927 (ACT), s 35(1).

[53] Section 359(2). Such a direction may not be made to picketers or protesters/demonstrators: s 35(3).

[54] It covers any offence in the vicinity and also permits a dispersal order where a breach of the peace is apprehended.

[55] Summary Offences Act 1953 (SA), s 18.

[56] See the comments of Lord Diplock in A-G for Northern Irelands Reference (No 1 of 1975) [1977] AC 105 at 137-8.

[57] Harding R Police Killings in Australia (Penguin, Harmondsworth 1970) p 28.

[58] See Criminal Code 1913 (WA), s 233(2); Criminal Code 1899 (Qld), s 256(2) and Criminal Code 1924 (Tas), s 30(2).

[59] See Harding, op cit p 30.

[60] Crimes Act 1900 (ACT), s 349ZF(2).

[61] Police Act 1892 (WA), s 49; Crimes Act 1900 (ACT), ss 3T, 3U.

[62] Crimes Act 1900 (NSW), s 357E(a).

[63] Summary Offences Act 1953 (SA), s 68.

[64] Police Offences Act 1935 (Tas), s 58. The Queensland power, discussed below, is similarly restricted to a search for drugs and related objects.

[65] Police Administration Act (NT), ss 119(2), 120A-E; Summary Offences Act (NT), ss 45H-HA.

[66] Police Administration Act (NT), s 119(1)(a).

[67] Drugs Misuse Act 1986 (Qld), s 22. Note that there is no mutuality in the Queensland legislation as in the Commonwealth and other provisions. The officer need not inform the suspect of the reason for the request or divulge his or her name and station.

[68] Drugs Misuse Act 1986 (Qld), s 15.

[69] Education Reform Act 1990 (NSW), s 122; Education Act 1972 (SA), s 80; Education Act (NT), s 31.

[70] Police in Tasmania have a welfare removal power only in response to a warrant or a child protection order.

[71] Children’s Services Act 1986 (ACT), s 71 “in need of care”; Community Welfare Act (NT), s 11 “in need of care”; Children (Care and Protection) Act 1987 (NSW), s 60 “in need of care”; Children’s Services Act 1965 (Qld), s 49 “in need of care and protection” and s 61 “in need of care and control”; Children’s Protection Act 1993 (SA), s 16 “in serious danger” and s 17 “in imminent danger”; Children and Young Persons Act 1989 (Vic.), s 69 “in need of protection”; Child Welfare Act 1947 (WA), s.29 “in need of care and protection”.

[72] Children’s Protection Act 1993 (SA), ss 16, 17.

[73] Using such force as is reasonable: s 12(6).

[74] Such places include youth refuges and the Department of Community Services care centres, Minali and Ormond, (see NSW Parliamentary Debates, Legislative Assembly Weekly Hansard, 24 November 1994, 57 at 59 (Premier, Second Reading Speech)), but not a police station (s 12(3)). The child can be detained for a maximum of 24 hours (s 13(2)) and must be released earlier upon the demand of a parent or guardian (s 13(4)). The parent/guardian must be notified of the child’s detention (s 12(5)).

[75] Section 12(4)(b). The Act does not define “likelihood” or “risk”.

[76] Police Act 1892 (WA), s 53A; Police Administration Act (NT), s 128. In the Kimberley region of WA in 1994 half of the juveniles detained in police lock-ups were there because of alcohol.

[77] Bossuyt MJ Guide to the Travaux Preparatories of the International Covenant on Civil and Political Rights (Marinus Nijhoff Publishers, Netherlands 1987) pp 19, 198-201, 342

[78] Ibid, pp 342-343.

[79] Ibid, pp 197, 201.

[80] Ibid, p 342.

[81] Ibid, p 201.

[82] Ibid.

[83] Mabo v State of Queensland (1988) 166 CLR 186 at 217 per Brennan, Toohey and Gaudron JJ., at 226 per Deane J.

[84] The South Australian Supreme Court in Gibson v Ellis (1992) 59 SASR 420 held: “The power to search necessarily incorporates the power to restrict the liberty of the suspect should it be required to render effective such search” (at 240, headnote)

[85] This definition seems broader, but more realistic, than that adopted in the United Nations Rules for the Protection of Juveniles Deprived of their Liberty which defines “deprivation of liberty” as “any form of detention or imprisonment or placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, ordered by any judicial, administrative or public authority” (Rule 11(b)).

[86] See Rule 10.3 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice.

[87] The test of which is whether a reasonable person would deem the use of that degree of force to be necessary.

[88] Taking into account the seriousness of the suspected offence and the knowledge of the officer as to the child’s identity and residence.

[89] See Blagg and Wilkie, op cit.