Rights of children in the criminal process
Section 23 of the Charter of Human Rights and Responsibilities (the Charter) identifies specific rights for children who are being detained or convicted of an offence. The law recognises that children, because of their age, are more vulnerable. The Charter applies to public authorities in Victoria, such as state and local government departments and agencies, and people delivering services on behalf of the government.
How does the law protect me?
Right to be segregated from all detained adults
If children are detained, whether they have been charged or not, they must be kept apart from adults, preferably in a separate juvenile facility. As with adults, accused children on remand must also be kept apart from convicted prisoners serving their sentences in the same facility.
When housed in adult prisons, children’s basic safety and wellbeing may be compromised. This can have an impact on their ability to reintegrate into society and their involvement in further criminal activity. Facilities designed specifically for children – including child-centred staff, personnel, policies and practices – better cater for the developmental needs of children.
There is one exception to the separation of children from adults – where it is not in the child’s best interests. For example, a judge may decide that it is in a child’s best interest to be detained with a parent or close to home, even if that means being detained in a facility shared with adults.
Right to be brought to trial as quickly as possible
Every child arrested and charged must be brought before a court as quickly as possible.
The Office of Public Prosecutions must ensure that all agencies involved in prosecuting a child do what they can to bring the case to trial as quickly as possible. Agencies cannot cite lack of proper resources as the reason for any delay.
While this requirement applies to all people, it is more important in the case of children in detention.
Right to be treated in a way that is appropriate to his or her age
All agencies involved in detaining and prosecuting children – Victoria Police, courts and tribunals, and prisons and detention facilities – must treat children appropriately for their age throughout the entire process.
Article 40(1) of the Convention on the Rights of the Child provides guidance on appropriate treatment of children in detention, stating that all criminal processes involving children must focus on rehabilitation and helping them take on a constructive role in society.
Can these rights be limited in any way?
In some circumstances, one person’s right may come into conflict with the right of another person or group. In these circumstances, it can be necessary to limit or restrict these rights. Under section 7(2) of the Charter, rights may be limited in certain circumstances, but it must be reasonable, necessary, justified and proportionate.
How we can help
We can give you information about Victoria’s Charter of Human Rights and Responsibilities but the Victorian Equal Opportunity and Human Rights Commission does not handle complaints related to the Charter.
If you would like more information about the Charter and your rights contact us.
For information about the legal history of this right, case law or Australia’s human rights framework, you can read more in our Policy and Legal sections of this website.
How to make a human rights complaint
If you think your human rights have been breached, you should contact the Victorian Ombudsman.
If you want to make a complaint about police conduct, contact the Independent Broad-based Anti-corruption Commission.