Rights When Questioned or Arrested (HSC SSCE Legal Studies): Revision Notes
Rights When Questioned or Arrested
Introduction to special protections for young people
When young people in NSW interact with police, they receive additional legal protections beyond those given to adults. The law recognises that children and young offenders may be more vulnerable when dealing with law enforcement and may not fully understand their rights or the legal process. These special protections aim to ensure fair treatment and prevent young people from being disadvantaged during police interactions.
The rights and protections for young people vary across Australian jurisdictions, but NSW has established a comprehensive framework through several key pieces of legislation. The main laws governing police interactions with young people include:
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – outlines general police powers and specific requirements when dealing with young offenders
- Children (Criminal Proceedings) Act 1987 (NSW) – provides additional protections during questioning and arrest
- Summary Offences Act 1988 (NSW) – covers specific situations where young people must provide identification
These protections reflect Australia's obligations under the UN Convention on the Rights of the Child, which requires that countries treat children in contact with the justice system with dignity and respect.
The Seen and Heard report (1997)
In 1997, the Australian Law Reform Commission (ALRC), working with the Human Rights and Equal Opportunity Commission, conducted a landmark inquiry into young people's interactions with the legal system. The resulting report, titled Seen and Heard: Young People and the Legal Process, examined how young people experience the criminal justice system and identified significant areas for improvement.
Key recommendations
The report made several important recommendations:
- Standardising the minimum age of criminal responsibility across all Australian jurisdictions (achieved in 2000 when all states adopted age 10 as the minimum)
- Creating national standards for juvenile justice through legislation or policy
- Improving procedures for investigation, arrest, bail conditions, sentencing, and detention to ensure compliance with the UN Convention on the Rights of the Child
Despite these recommendations, national standards for juvenile justice have not yet been fully implemented across Australia.
Survey findings on police relationships
The inquiry surveyed 843 children and young people about their experiences with police. The results revealed concerning attitudes: 78% of those surveyed stated that police rarely treated young people with sufficient respect. While this finding doesn't necessarily indicate poor policing practice, it highlights that the relationship between young people and police represents a significant opportunity for improvement. Since the survey, several legislative changes have been introduced to strengthen protections for young people during police interactions.
Questioning of young people
General police powers
Police in NSW have broad powers to approach and question young people, just as they do with adults. Most standard police powers apply equally to children and young people, including:
- Powers to ask a person to "move on" from a location
- Most compulsory powers of search and seizure
- Powers to stop and question individuals in public places
However, young people receive additional protections during questioning that adults do not have, particularly when formal interviews are conducted or when they are detained.
Identification: Providing name and address
Police have the right to ask any person, including young people, to identify themselves by providing their name and address. Similarly, a person can ask a police officer for their name and police station. Understanding when you must legally respond to these requests is important for young people.
When young people must provide details
There are several situations where a person is legally required to provide their name and address to police. Failure to do so may result in an offence. These situations include:
- Indictable offences: When a police officer suspects on reasonable grounds that the person can assist in investigating an indictable offence that was committed nearby
- Traffic and vehicles: In numerous situations relating to vehicles and traffic matters
- Train offences: When a person is suspected of committing an offence on a train
Special rules for underage drinking
The Summary Offences Act 1988 (NSW) contains provisions specifically targeting young people and alcohol consumption. Under this Act, police can stop a person and require them to provide identification details if:
- The officer suspects on reasonable grounds the person is under 18 years old
- The person is carrying or consuming alcohol in a public place
- The person does not have adult supervision or a reasonable excuse
If the young person cannot produce adequate identification, refuses to comply with the police request, or gives false details, police can impose a fine of up to $20.
The right to silence
Right to silence means the right of a person to refuse to answer any question put to them on the grounds they may incriminate themselves. This is a fundamental legal protection in the Australian justice system.
When police stop a person and ask questions, in most circumstances that person is not required to respond. This right to silence continues even if the person has been taken to a police station for questioning or has been arrested. The reason for this protection is important: answering certain questions may not be in a person's best interests, as their answers could later be used as evidence against them in court.
Any person (including young people) suspected of committing an offence should generally not answer police questions or sign any statements until they have received independent legal advice. This is not about being uncooperative – it's about ensuring fair treatment and protecting legal rights.
Right to support of a responsible adult
The law provides an additional layer of protection specifically for young people under 18 years when they are questioned by police. This protection recognises that young people may be more vulnerable than adults and may not fully understand their legal rights or the implications of what they say to police.
Section 13 protection
Section 13 of the Children (Criminal Proceedings) Act 1987 (NSW) creates an important safeguard. Under this section, any information or statement a child or young person gives to police will be inadmissible as evidence in court proceedings against that person, unless:
- A responsible adult (other than the police member) is present during questioning – such as a parent, youth worker, guardian, or lawyer, OR
- A judge or magistrate decides that the statement should be admitted despite the absence of a responsible adult
This protection is significant because it means police must ensure a responsible adult is present whenever they question a person under 18 years old. If they fail to do this, any information obtained cannot be used as evidence in court. This rule applies regardless of how important or incriminating the information might be.
Role of the responsible adult
The responsible adult plays several important functions during police questioning:
- Taking notes of what is said during the interview
- Ensuring the young person understands they can get legal advice
- Making sure the young person knows they don't have to answer questions
- Observing that the interview is conducted fairly and properly
- Providing support to the young person during a potentially stressful situation
The presence of a responsible adult helps balance the power dynamic between police and young people and ensures that any statements made are truly voluntary.
Searches of young people
Police have various search powers that generally apply to both adults and young people. However, there are specific restrictions when it comes to strip searches of young people.
Strip search restrictions
Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), strict rules govern strip searches of young people:
- Children under 10: Police can never perform a strip search on a child under 10 years old, regardless of circumstances
- Young people aged 10-18: A responsible adult (who is not a police officer) must be present during any strip search
- Young people aged 14-18: If the person is 14 years or older, they must agree on who the responsible adult should be
- Serious and urgent circumstances only: Police may only conduct strip searches in serious and urgent circumstances
- Privacy and dignity: When conducting a strip search, police must respect the person's privacy and must not touch the person
These restrictions recognise the particular vulnerability of young people and the potentially traumatic nature of strip searches.
Arrest and interrogation
Conditions for lawful arrest
The conditions under which a young person can be lawfully arrested are the same as those for adults. These conditions are set out in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Police can arrest a young person when:
- Police know or believe on reasonable grounds that the person has committed or is about to commit an offence
- Police have a warrant for the person's arrest
- Certain other conditions relating to people on bail are met
Police obligations during arrest
When arresting a young person, police must:
- Tell the person they are under arrest and explain why
- Inform the person of the police officer's name and station
- Use only reasonable force – the force must not be excessive, and the officer may not assault or intimidate the person
Young person's obligations
A young person being arrested must not:
- Assault a police officer
- Resist arrest
- Use offensive language
Doing any of these may result in additional criminal charges.
Support person and legal advice
Notification of parents or guardians
The ALRC's Seen and Heard report recommended that when a child or young person is arrested, their guardians or carers should be notified as soon as possible. The only exception is if the carer or guardian might pose a threat to the child's safety.
Under the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), people under 18 are defined as vulnerable people and receive special protection when arrested and detained. The regulations require:
- Police must find out as soon as possible who the child's parent or guardian is
- Police must contact the parent or guardian promptly
- Young people must have a support person or interview friend present during any police interview
Interview friend means a parent, guardian, friend, or legal representative present at the police interview of a minor. The presence of an interview friend is to offer support and witness that statements are made voluntarily.
Requirements for police interviews
Police may not conduct any interview of a child or young person unless a support person is present. For young people 14 years and older, police must get their agreement on who they want as the support person.
The support person's role is to:
- Assist the child or young person during the interview
- Observe that the interview is conducted properly and fairly
- Witness that any statements are made voluntarily
- Take notes of the interview
- Ensure the young person understands their rights
Duty of the custody manager
The police custody manager has a positive duty to assist children and young people in custody. While there is currently no legal requirement to have legal representation during a police interview, the Seen and Heard report suggested this should become mandatory for young people.
In 2002, the NSW Supreme Court ruled in R v Cortez that the custody manager's duty includes:
- Informing the young person that the Legal Aid Hotline is available
- Giving them a genuine opportunity to contact Legal Aid
Legal Aid Hotline for under-18s
People under 18 years are entitled to free legal advice from NSW Legal Aid. The Legal Aid Hotline for under-18s provides:
- Access to qualified lawyers experienced in juvenile matters
- Free confidential legal advice
- Service available seven days a week
- Contact number: 1800 10 18 10
This service ensures young people can get professional legal advice before deciding whether to answer police questions or make any statements.
Caution of rights
Both adults and young people have a right to silence when dealing with police. Young people, like adults, may incriminate themselves without realising they are doing so and must be warned about this risk.
What is a caution?
A caution is a statement issued by police to a suspect when they are detained to inform them of their rights. Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), any person arrested has the right to receive a caution.
Content of the caution
Police must warn a person as soon as practical after they are detained that:
- They do "not have to say or do anything"
- "Anything the person does say or do may be used as evidence"
- The maximum allowable period for detention without charge
The accused must sign an acknowledgement that this caution has been given. For children and young people, this would usually be completed by an interview friend, guardian, or carer on the child's behalf.
Criticisms of the current caution
There have been concerns that the current caution system has limitations when applied to young people:
- Children and young people may not always understand the technical language used in the caution
- The caution should ideally be age-specific, using simpler language for younger children
- Some argue that admissions and confessions from young people should only be admissible in court if they have been electronically recorded
These criticisms suggest that while the caution system provides important protections, it may not be fully effective in ensuring young people truly understand their rights.
Detention and identification
Maximum detention periods
In NSW, people under 18 years can be detained for:
- A maximum of four hours, OR
- Up to a further eight hours if a warrant for the extension is granted
However, the Seen and Heard report recommended that children and young people should not be detained for longer than two hours in all states. This shorter timeframe is already the practice at the federal level.
The reasoning behind this recommendation is that children may be particularly vulnerable during long periods of detention. Extended detention can be stressful and potentially coercive. The presence of an interview friend is one mechanism that helps prevent evidence being obtained under duress or coercion during lengthy interrogation periods.
Forensic procedures, photos and searches
Police often require identification of suspects when arrested, which may include photographing them or taking fingerprints or DNA samples. Different rules apply depending on the young person's age.
Young people aged 14 and over
For young people 14 years or older, police may take fingerprints or photographs if it is for the purpose of identifying them. This can be done without a court order.
Children under 14
For children under 14 years, police have much more limited powers. They can only take photos or fingerprints if:
- They apply to the Children's Court for permission
- The Court grants an order allowing the procedure
- The child may not be held in custody while the application is being obtained
When deciding whether to grant such an order, the Children's Court will consider:
- The seriousness of the offence
- Cultural and ethnicity considerations
- The "best interests" of the child
- The wishes of the child
- The wishes of the child's parent and/or guardian
DNA samples
Police cannot take a DNA sample from any suspect under 18 years old unless they have a court order allowing them to do so. Children and young people cannot give consent for DNA samples on their own – it requires parental or guardian consent plus court approval.
Destruction of identification materials
If the criminal matter is not proved in court (for example, the young person is acquitted, found not guilty, or the charges are discontinued), then police must destroy any fingerprints, photos, or DNA samples if requested by the parent or guardian.
Additional protections: Arrest as a last resort
The principle of minimal intervention
The UN Convention on the Rights of the Child obliges countries to use arrest only as a "last resort" when dealing with children and young people. This is because arrest can be a negative and traumatising experience, particularly for young people who may not have had previous contact with the justice system.
Legislative framework in NSW
Two pieces of legislation establish the principle that arrest should be minimised for young people:
- Section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) sets out detailed provisions about when and for what purpose an arrest can be made
- Section 8 of the Children (Criminal Proceedings) Act 1987 (NSW) creates a presumption that children should not be arrested or detained unless:
- The offence was serious or violent, OR
- There is a danger of further offences, OR
- There is a risk of violent behaviour
Concerns about implementation
The Seen and Heard report recommended that for children considered "at risk", welfare and health services would usually be more appropriate than police intervention. However, there are concerns about whether these principles are always followed in practice.
The Shopfront Youth Legal Centre, a Sydney-based free legal service for disadvantaged young and homeless people, noted in 2007 that:
- Section 99 doesn't seem to have made police think more carefully before arresting suspects
- Magistrates appear generally reluctant to find that an arrest was unlawful
- Courts may be conservative in interpreting these legislative provisions
This suggests that some children and young people may enter the criminal justice system unnecessarily, which could negatively impact their perceptions and experiences of the law.
However, alternatives are available to police under the Young Offenders Act 1997 (NSW), which provides diversion options such as warnings, cautions, and youth justice conferences.
Summary of key rights and procedures
When dealing with police, young people under 18 have the following special rights and protections:
| Situation | Protection or Requirement |
|---|---|
| Questioning | Must have a responsible adult present or information inadmissible |
| Strip searches | Cannot be conducted on children under 10; requires independent responsible adult present for those aged 10-18 |
| Arrest | Police must find parent/guardian details and contact them as soon as possible |
| Police interview | Must have a support person (interview friend) present |
| Rights caution | Must be given in presence of support person |
| Legal advice | Police must inform of right to contact Legal Aid and provide opportunity to do so |
| Detention | Same maximum as adults (4 hours, or 8 with warrant), but 2 hours strongly recommended |
| Fingerprints/photos | If under 14, can only be taken with Children's Court order |
| DNA samples | If under 18, cannot be taken without Children's Court order |
Key Points to Remember:
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Special protections exist because young people may not fully understand their rights and are considered more vulnerable than adults when dealing with police.
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The right to silence is fundamental – young people do not have to answer police questions and should usually seek legal advice before doing so.
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A responsible adult must be present during police questioning of anyone under 18, or the information obtained cannot be used as evidence in court.
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Strip searches are heavily restricted for young people, prohibited entirely for children under 10, and require a responsible adult present for those aged 10-18.
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Free legal advice is available to all young people through the Legal Aid Hotline (1800 10 18 10), and police must inform young people of this service.
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Arrest should be a last resort for young people, used only when necessary, though this principle may not always be followed in practice.
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Different rules apply depending on whether the young person is under or over 14 years old, particularly regarding fingerprints, photographs, and DNA samples.