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Appendices

Appendix 1: International instruments that relate to the custodial remand of young people

A number of United Nations instruments, to which Australia is a signatory, provide guidelines that relate to periods of custodial remand. Some relate to custodial remand in general, others offer guidance on custodial remand for young people specifically.

The Standard minimum rules for the treatment of prisoners 1955 (United Nations 1955) stipulate that unconvicted prisoners are presumed innocent and are to be treated as such, and should be subject to a ‘special regime’ that meets the following requirements (under Articles 85 to 93):

  • untried prisoners shall be kept separate from convicted prisoners;
  • young untried prisoners shall be kept separate from adults and shall in principle be detained in separate institutions;
  • untried prisoners shall sleep singly in separate rooms, with the reservation of different local custom in respect of the climate;
  • within the limits compatible with the good order of the institution, untried prisoners may, if they so desire, have their food procured at their own expense from the outside, either through the administration or through their family or friends. Otherwise, the administration shall provide their food;
  • an untried prisoner shall be allowed to wear his own clothing if it is clean and suitable;
  • if he wears prison dress, it shall be different from that supplied to convicted prisoners;
  • an untried prisoner shall always be offered opportunity to work, but shall not be required to work. If he chooses to work, he shall be paid for it;
  • an untried prisoner shall be allowed to procure at his own expense or at the expense of a third party such books, newspapers, writing materials and other means of occupation as are compatible with the interests of the administration of justice and the security and good order of the institution;
  • an untried prisoner shall be allowed to be visited and treated by his own doctor or dentist if there is reasonable ground for his application and he is able to pay any expenses incurred;
  • an untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with his family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the interests of the administration of justice and of the security and good order of the institution; and
  • for the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.

The International covenant on civil and political rights (United Nations 1976) stipulates in Article 9 that:

  • anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him; and
  • anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings and should occasion arise, for execution of the judgment.

In relation to young people specifically, the Convention of the Rights of the Child (United Nations 1989), the Standard minimum rules for the administration of juvenile justice (the ‘Beijing Rules’) (United Nations 1985) and the Rules for the protection of juveniles deprived of their liberty (the ‘Havana Rules’) (United Nations 1990) all stress that incarceration should be used only as a last resort for young people and should be used for the minimum necessary period. The Beijing Rules and the Havana Rules also stress that young people on custodial remand should be detained separately from adults and/or sentenced detainees.

Article 18 of the Havana Rules, which contain the most detailed guidance relating specifically to the treatment of young people on custodial remand, state that untried young people should be treated according to the following provisions (but not necessarily restricted to these provisions):

  • young people should have the right of legal counsel and be enabled to apply for free legal aid, where such aid is available, and to communicate regularly with their legal advisers. Privacy and confidentiality shall be ensured for such communications;
  • young people should be provided, where possible, with opportunities to pursue work, with remuneration and continue education or training, but should not be required to do so. Work, education or training should not cause the continuation of the detention; and
  • young people should receive and retain materials for their leisure and recreation as are compatible with the interests of the administration of justice.

Under the Beijing Rules, young people on custodial remand are entitled to all the rights contained in the Standard minimum rules for the treatment of prisoners (United Nations 1955) and the International covenant on civil and political rights (United Nations 1976).

Appendix 2: Interview participants

  • Aboriginal and Torres Strait Islander Legal Service (Queensland)
  • Australian Capital Territory Community Services, Youth Justice
  • Australian Capital Territory Legal Aid
  • Australian Capital Territory Magistrates Court
  • Brahminy Foundation (Northern Territory)
  • Central Australian Aboriginal Legal Aid Service (Northern Territory)
  • Drug Arm (Western Australia)
  • Legal Aid (Queensland)
  • Magill Training Centre (South Australia)
  • New South Wales Children’s Courts
  • New South Wales Department of Attorney General and Justice, Juvenile Justice
  • North Australia Aboriginal Justice Agency (Northern Territory)
  • Northern Territory Department of Children and Families
  • Northern Territory Department of Justice, Youth Justice Unit
  • Northern Territory Legal Aid Commission
  • Queensland Department of Communities
  • Queensland Police Service
  • Queensland Youth Bail Accommodation Service
  • Save the Children (Tasmania)
  • South Australia Department for Communities and Social Inclusion
  • South Australia Police
  • South Australia Youth Legal Services
  • Tasmania Department of Health and Human Services
  • Tasmania Magistrates Court, Youth Justice Division
  • Tasmania Police Prosecution Services
  • The Shopfront Youth Legal Centre (New South Wales)
  • Victoria Children’s Court
  • Victoria Department of Human Services
  • Victoria Office of the Child Safety Commissioner
  • Western Australia Department of Corrective Services
  • Western Australia Department of Corrective Services, Metropolitan Youth Bail Service
  • Western Australia Department of Corrective Services, Youth Justice Court Services
  • Western Australia Department of Public Prosecution
  • Western Australia Youth Legal Services (LegalAid)
  • Youth Affairs Network (Queensland)
  • Youth Justice Coalition (New South Wales)