The Victorian Law Reform Commission will shortly begin a consultation process for a project examining the law in Victoria as it relates to the role of Independent Persons in police interviews with young people.
This project will be conducted under the community law reform function of the commission whereby relatively minor legal issues that are of general community concern can be considered.
The project came about following a request from the management agencies of the Youth Referral and Independent Persons Program (YRIPP), the Centre for Multicultural Youth and the Youth Affairs Council of Victorian (YACVic) in 2008.
An independent person is usually a volunteer member of the community who attends a police interview to support a young person when a parent or guardian is unavailable.
In Victoria there are two Acts which apply to the role of Independent Persons and one Act at the Commonwealth level. In addition to this there is also reference to the role of Independent Persons in the Victoria Police manual.
Youth agencies are concerned that current Victorian law does not adequately detail the role of Independent Persons and that there may be cases where the lack of clarity and certainty in the law has led to a lack of consistency.
In particular they suggested clarifying the role, responsibilities and rights of the Independent Person through replacing the term ‘independent person’ with a more suitable term to remedy confusion around the term ‘independent’.
Further, they suggested that in order to place the role of an Independent Person on firmer legal footing, a statutory duty could be introduced to provide independent persons for police interviews and that those performing the role be accredited by the agency responsible for their attendance.
The commission will examine whether the law can be clarified and improved so that it better protects young people’s rights and articulates the role of those providing support during police interviews and who should perform such a role.
As part of the project the commission will look at current legal and regulatory framework in Victoria and other Australian and overseas jurisdictions, with a particular focus on the role of Appropriate Adults in the United Kingdom.
Victoria currently operates a dual system with regards to the role and attendance of Independent Persons at police interviews with young people. This includes those involved in a program run by YRIPP which provides volunteers to cover 107 police stations in Victoria.
Those police stations not covered by the program use an ad hoc system determined by the individual police station with regards to using known volunteers willing to act as Independent Persons.
Volunteers in the YRIPP program undertake 25 hours of training and assessment while volunteers working outside the pilot area do not receive any formal training.
Aims for the project
In reviewing the role of Independent Persons the VLRC has six main aims:
- To clarify the scope of the role of the Independent Person and the terminology used to describe this role;
- To revisit the original policy rationale for an independent person, by questioning if the inherent disadvantage experienced by young people can be best compensated by the existence of an independent person. Further, could additional rationale be attributed ensuring the admissibility of evidence, the right to a fair trial and reducing recidivism;
- To clarify and rationalise the legal right of young persons to access their right to an Independent Person in a number of settings including police interviews and bail hearings;
- To give greater operational effect to this legal right by inclusion of the scope and role (including duties and rights) of Independent Persons within the Victoria Police Manual;
- To provide certainty for police and those working in the criminal justice system settings such as Magistrates and Bail Justices as to the role of Independent Persons; and
- To ensure there is no confusion or duplication of effort where a young person with cognitive impairment takes part in a police interview.
This article was produced by the commission and appeared in the June 2009 issue of the Law Institute Journal.