What the Act says
These rights are based on articles 10(2)(b) and 10(3) of the International Covenant on Civil and Political Rights, which Australia ratified in 1980. Articles 37 and 40 of the Convention on the Rights of Child, which Australia ratified in 1990, also deal with deprivation of liberty and criminal processes in relation to children.
Scope of the right
Section 33 recognises that children are entitled to additional protections due to their age and vulnerability.
Right to be segregated from all detained adults
An accused child must be held separately from detained adults. Section 33(1) does not extend to children who have been convicted, although the general principle that children should not be detained with adults will be protected by section 33(3).
Detaining a child with adults can compromise the child’s safety, wellbeing and ability to reintegrate into society. Separate facilities with policies and practices tailored for children are essential to meet children’s developmental needs.
There may be circumstances where limitation of this right is justified because separation is not in the child’s best interests. For example, a child may be detained with a parent or closer to home, even if the facility is shared with adults.
In accordance with section 30 of the Human Rights Act, an accused child on remand must also be segregated from convicted persons, except where reasonably necessary.
Right to be brought to trial as quickly as possible
An accused child must be brought to trial as quickly as possible. This requirement is stricter than the general right to a trial ‘without delay’, or ‘without reasonable delay’ (sections 29(5), 29(7) and 32(2)(c) of the Human Rights Act) because delays in a child’s trial can have a significant impact on their development and wellbeing.
Right to be treated in a way that is appropriate to the child’s age
This right provides that a child who has been convicted of an offence must be treated in a way that is appropriate for the child’s age.
This is in addition to the right of a child to protection that is needed by the child and is in the child’s best interests (section 26(2)) and the right to humane treatment when deprived of liberty (section 30). A child charged with a criminal offence has the right to a procedure that takes into account the child’s age and desirability of promoting the child’s rehabilitation (section 32(3)).
The United Nations has developed a number of standards for the treatment of children in detention including the Havana Rules, the Beijing Rules and the Riyadh Guidelines.
Reasonable limitations
These protections can be limited, but only where it is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Section 263 of the Youth Justice Act 1992 clarifies that in making decisions about the management of detention centres, the chief executive can take into account:
- the safety and wellbeing of a child on remand and other detainees
- the responsibilities of the chief executive under section 263 of that Act, such as maintaining discipline and good order in the centre, and promoting the social, cultural and educational development of children detained at the centre.
Case example
Opportunity for legal representation not provided in age-appropriate way
A 12 year old child appealed a decision by the Mount Isa Magistrates Court to make a protection order against him under the Domestic and Family Violence Protection Act 2012, after sentencing the child in a separate proceeding. He submitted, among other things, that in making the protection order, the magistrate did not provide a procedure that took account of his age, specifically that a short adjournment did not afford him a reasonable opportunity to obtain representation by a lawyer.
Hearing the matter on appeal, the District Court found that the magistrate did not provide a reasonable opportunity for the child to provide informed consent to any orders, or to obtain representation by a lawyer in an age-appropriate way. This as well as other errors contributed to the District Court’s decision to set aside the protection order.
SK (A Child) v Commissioner of Queensland Police & Anor [2023] QDC 65 (5 March 2024)
Six-month delay without explanation too long (ACT)
A child pleaded guilty to assault occasioning bodily harm. Six-months later she was charged with a more serious offence. The child applied for a permanent stay of proceedings for the second charge.
The Children’s Court considered the right under the ACT Human Rights Act for a child to ‘be brought to trial as quickly as possible’. The relevant period was from the date the child was served with the first charged. The court held that to act ‘as quickly as possible’ imposed an obligation ‘to give something priority and to take positive steps to expedite completion’ to the extent circumstances would allow. On the other hand, an obligation to do something ‘without unreasonable delay’ may be satisfied by avoiding unnecessary or unusual delay in the ordinary course of events.
In the absence of an explanation for the delay in serving the second charge, the right to be brought to trial as quickly as possible had been breached. However, the court did not make a permanent stay order because, in the circumstances, a trial would not amount to an abuse of the court’s process.
LM v Children’s Court of the Australian Capital Territory[2014] ACTSC 26 (24 February 2014)
This information is not intended to be a substitute for legal advice.