Legal Analysis of Juvenile Sex Offending

The provided document is an annotated bibliography for an assignment on juvenile sex offending, its prevalence, and the criminal justice response. The document includes references to various secondary sources of law, including a pdf file on the Human Rights and Responsibilities Act 2006, a link to the Victoria state government's website, and a summary offense act 1996. The assignment also covers related topics such as environmental rights, penal culture, and legislating women's seats on boards. It is essential for students pursuing law or criminology courses.

MEMO OF ADVICE AND ANNOTATED
BIBLIOGRAPHY

TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................1
MAIN BODY...................................................................................................................................1
REFERENCES................................................................................................................................8
ANNOTATED BIBLIOGRAPHY .................................................................................................9

INTRODUCTION
Establishment of fundamental acts and legislations are done to confer basic human rights
along with ensuring freedom and stating responsibilities of citizen of a nation by virtue of
provisions and regulation set under these acts. The legislation not only consist of human rights
but also provides sections and clauses for protection of personal rights and avoid abusive use of
them. In the present case study, a discussion is carried out for protection of basic fundamental
rights of subject of case. All relevant sections stated in human rights and responsibilities Act,
2006 (Vic) are referred for answering each issues with implicating legal terms applicable to the
case study.
MAIN BODY
MEMORANDUM OF ADVICE
Date
To,
From:
LEGAL ADVICE ON VARIOUS ISSUES RELATED WITH PROTECTION HUMAN
RIGHTS DETENTION OF A MINOR AND AN ADULT IN A PROTEST GONE VIOLENT
Synopsis of advice given in present case study:
From the below depicted case it is found out that act of Maxine and Patrick was against
the law and imposed risk pertaining to peace of protest and caused damages to personal
property of a counter protester. Their arrest can be justified but keeping a minor with adult
offenders and in solitary confinement surely shows breach of duty on behalf of police
authorities1. Further it can be interpreted that both minister and secretary of public service
sectors are non-private authorities under the charter act. The remedies which can be sought by
both offenders are in form of review of their case application and shifting of Maxine to child
rehabilitation centre. Lastly, it is evaluated that section 6 of summary offence Act and human
rights and responsibilities Act are compatible and do not have any contraventions.
1 Caney, S., 2017. Human rights, responsibilities, and climate change. In Environmental Rights (pp. 117-
137). Routledge.
1

Detailed advice on given case study
DETERMINATIVE NATURE OF CONDUCT OF MAXINE AND PATRICK: -
Age on date of protest: 21/3/2018
Maxine (DOB-31/01/2003) - 14 years and 3 months [approx.]
Patrick: (DOB- 8/02/2000) – 18 years and 1.5 months [approx.]
In present case study Maxine and Patrick joined a protest against indefinite detention of
refugees from Nauru and Manus island. During the protest Maxine wrote two words fascist and
racist on a poster of counter protestor2. Upon this, another person who was against this protest
called police to inform them about such situation, Patrick grabbed phone from his hand and
throwed it in a nearby bin.
According to Human rights and responsibilities Act, 2006, citizen of Australia is
conferred with certain rights, relevant section related with present case study are
Section 15: freedom of expression:
1. Every person is given a right to hold an opinion with any interferences
2. Freedom of expression is given to every person which includes seeking, receiving
information and ideas of all form that can be oral, written, in print, by way or art or in
any other medium chosen by such person.
3. Certain duties and responsibility are attached to these rights subject to lawful restrictions
which are reasonably necessary for
 Respecting rights and reputation of another person, or
 Protection of national security, public order, health and morality.
Section 16: Peaceful assembly and freedom of association
1. Right to freedom of association with other people is conferred to every person including
authority to join a trade union
2. Peaceful assembly rights are given to each individual
Section 20: Property rights
This section states that no person shall be deprived from his or her personal property
otherwise in accordance with law.
With application above sections of the human rights and responsibilities Act, 2006 it can
be stated that every person has a right to join a peaceful assembly, in this case it was a protest
2 Cunneen, C and et.al., 2016. Penal culture and hyperincarceration: the revival of the prison. Routledge.
2

that meant to be peaceful. Every individual in protest and people from counter-protest group
have a right to freedom of expression. This related with expressing their views, but an act which
can cause damage to image of person or national security is restricted by law. In this case words
written by Maxine on poster of a counter protester might have provoked the public and resulted
into violence. Patrick had no right to deprive a person’s personal property which in this case
was a phone of counter protester.
From above application it can be concluded that act of both Maxine and Patrick cannot
be held lawful and justified as according to this act3. Though, Maxine has a right to freedom of
expression but she cannot do such an act which constraint with national security and peace of a
nation. Same is with Patrick he had no right to grab phone of a person and throw that, as this
will be considered as infringement of human rights of a person.
ANALYSING WHETHER POLICE AUTHORITY WAS UNDER BREACH OF THEIR
OBLIGATION OR NOT: -
In present case, Patrick was arrested by constable James Shepherd he gave no reason for
arrest. Maxine was arrested by constable Shannon Master and was remanded until trial.
Section 21: Right to liberty and Security of person
1. Every individual has a right to liberty and security
2. No person shall be subjected to arbitrary detention or arrest
3. No person shall be deprived from his or her liberty except on grounds and procedures
laid under law.
4. A person on being arrested shall be informed reason for the same and about proceedings
3 Terjesen, S., Aguilera, R. V. and Lorenz, R., 2015. Legislating a woman’s seat on the board: Institutional factors
driving gender quotas for boards of directors. Journal of Business Ethics. 128(2). pp.233-251.
3

that will be brought against him/her.
5. A person arrested for criminal charges;
 Must be presented in court,
 Must be brought to a trial without any delay,
 Must be released if both above pits are not complied with
Section 23 children in criminal process
1. A child imprisoned with or without charges must be kept separate from all detained
adults.
2. All child accused shall be quickly brought to trial.
3. A child shall have treated with behaviour which is appropriate for his/her age who is
convicted for an offence.
Section 38: Conduct of public authority
1. it is considered unlawful when a public authority act in a way that is incompatible with
human rights or fail in making a decision while taking full consideration of individuals
rights.
2. Subsection 1 is not applicable in a case where, no difference in act or decision of public
authority was seen whether he/she would have acted as per law or not and made a
different decision.
From the application of above section in present case, it can be interpreted that police
authority was under obligation to inform the reason of arrest to both Maxine and Patrick. This
was infringement of their right bestowed by this act4. As per section 38, police authority was
under obligation not to undertake any action or decision which do not consider human rights
completely. But, this is not applicable as per subsection 2 of section 38, would they have acted
as per law, arrest of both them was sure to avoid further violence in protest. Both of them can
seek a remedy as per section 39 but no award can be granted to them for damages suffered by
them. Detention of Maxine in solitary confinement cannot be justified with all other adults
convicted for offences.
This can be concluded that obligatory breach occurred from the side of police officers
they took the action for protection of peace of city and to avoid riots. So their arrest was
4 Smith, E., 2016. Modern diversion or colonial hangover? The history and development of suspended sentences
in South Australia. Australian & New Zealand Journal of Criminology. 49(2). pp.240-257.
4

justifiable as per subsection 2 of section 38. But they are surely in breach of their duties for
keeping Maxine in solitary confinement as she is a minor and must be kept separate from adult
convicted for criminal offences.
DETERMINATION OF STATUS OF OFFICERS AS PUBLIC AUTHORITY, OF
VARIOUS DEPARTMENTS UNDER THIS ACT: -
Section 4: This provides definition of public authority under Human rights and
responsibilities Act, 2006:
For this charter public authority is:
 Government official within meaning of Public Administrative act, 2004,
 entity established through statutory legislation which carries out functions of public
nature,
Victoria police,
 a council, councillors and staff members with the meaning of Local Government Act,
1989,
 a minister,
 a committee of parliamentary members acting in administrative capacity,
 an entity to be public authority by the regulations.
Public Administrative act, 2004
Public officials:
1. public sector/ service employees such as head of government department or
administrative office,
2. person employed under division 3 of part 6.
3. holder of a statutory office or a prerogative office,
4. director of a public entity.
 Children and families: this is a department of social services which supports families
and children through various programs and service5. This can be considered` as public
official under administrative act 2004. So, ministers of health and children are
considered as public authorities under this charter.
 Department of Health and Human Services public authorities: It implies for the
5 Warner, K. and Bartels, L., 2015. Juvenile sex offending: Its prevalence and the criminal justice
response. UNSWLJ. 38. p.48.
5

department which provides policies, programs, and services to support and enhance
health and well-being of all citizens of Australia. This is also a government sector
department so secretary of this department also fall under category of public authority of
this charter.
 It can be said that both minister of family and children and secretary of department of
health and human services falls under public authority category of Individuals rights and
responsibility Act 2006. all the relevant section of this charter are also applicable to both
above mentioned authorities.
REMEDIES AVAILABLE TO MAXINE AND PATRICK FOR BREACH OF HUMAN
RIGHTS: -
In this case Maxine is a child as per section 3 of charter as she is under the age of 18
when this protest was held and she was detained. Patrick have attained age of 18 as on 21st
march 2018, so she is not a child as per definition of this act.
Section 22
Section 24 Fair hearing
1. a person charged for a civil or criminal proceeding must be decided by a court or
tribunal after a chance of fair and public hearing is given to that person.
2. In certain cases, court and tribunal may exclude member from media and public from all
or a part of hearing.
3. All judgement or decision by court /tribunal in civil or criminal proceedings must be
made public unless to protect interest of a child or otherwise.
Section 25
1. a person charged with criminal proceeding must be presumed to be innocent until
otherwise proved in accordance with law.
2. A person charged with criminal offences must be informed about reason for their
conviction, to consult their lawyer, to be tried without unreasonable delay6.
3. A child when convicted for criminal offence, a right to initiate procedures which takes
6 Macintosh, A., Gibbons, P., Jones, J., Constable, A. and Wilkinson, D., 2018. Delays, stoppages and appeals: An
empirical evaluation of the adverse impacts of environmental citizen suits in the New South Wales land and
environment court. Environmental Impact Assessment Review, 69, pp.94-103.
6

in account his/her age and to prompt to rehabilitation of such child is conferred.
Section 39: Legal proceedings
1. a remedy can be sought by as person when an act of public authority was in
contravention of human rights,
2. the rights of a person do not get affected because of this charter, for seeking any relief or
remedy due to an act or decision of public authority which includes following rights:
 seeking judicial review under law
 seeking a relief as injunction or taking a stay on proceedings.
3. no person is entitled for an award for damages due to a breach under this act.
From application of above section in present case law it can be concluded that detention
of Maxine in solitary confinement is unlawful and she can initiate procedures for her shifting to
child rehabilitation centre. Both Patrick and Maxine can have sought remedy a per this act
under section 39 as judicial review of their cases under law. Their detention cannot be
questioned but the same pertaining to Maxine with adult offenders cannot be justified.
COMPATIBILITY OF SECTION 6 OF SUMMARY OFFENCE ACT WITH HUMAN
RIGHTS AND RESPONSIBILITY ACT: -
Summary offence Act, 1996
Section 6: direction to move on:
1. a police officer may direct a person to leave a place when such officer suspected that
 the person or persons can breach peace of that place
 An individual or or persons are endangering safety of others
 Behaviour of that person or individuals are likely to cause injury or damages to property
of them.
2. direction can be oral
Section 6A permission from Victorian police before facilitating public protest:
A council before granting permission for public protest must consult with police
department in order to make reasonable safety and protection arrangements.
This can be said that, section 6 of Summary offence Act, 1996 is compatible with Human rights
and responsibilities act, 2006 as one lays down accountabilities of an individual living in
Victoria and other resides provisions to protect peace in public places and damages to
governmental and private property7. To maintain peace and not to harm public and other
7

person's property is fundamental duty of a person. So this can be concluded that both the Acts
are compatible with other and no contravention in relevant section regarding this case can be
seen.
7 Denzin, N. K. and Giardina, M. D., 2016. Introduction: Ethical futures in qualitative research. In Ethical futures
in qualitative research. (pp. 9-44). Routledge.
8

REFERENCES
Books and Journal
Caney, S., 2017. Human rights, responsibilities, and climate change. In Environmental
Rights. (pp. 117-137). Routledge.
Cunneen, C and et.al., 2016. Penal culture and hyper incarceration: the revival of the prison.
Routledge.
Denzin, N. K. and Giardina, M. D., 2016. Introduction: Ethical futures in qualitative research.
In Ethical futures in qualitative research. (pp. 9-44). Routledge.
Macintosh, A., Gibbons, P., Jones, J., Constable, A. and Wilkinson, D., 2018. Delays, stoppages
and appeals: An empirical evaluation of the adverse impacts of environmental citizen suits
in the New South Wales land and environment court. Environmental Impact Assessment
Review, 69, pp.94-103.
Smith, E., 2016. Modern diversion or colonial hangover? The history and development of
suspended sentences in South Australia. Australian & New Zealand Journal of
Criminology. 49(2). pp.240-257.
Terjesen, S., Aguilera, R. V. and Lorenz, R., 2015. Legislating a woman’s seat on the board:
Institutional factors driving gender quotas for boards of directors. Journal of Business
Ethics. 128(2). pp.233-251.
Warner, K. and Bartels, L., 2015. Juvenile sex offending: Its prevalence and the criminal justice
response. UNSWLJ. 38. p.48.
9

ANNOTATED BIBLIOGRAPHY
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/PubStatbook.nsf/
f932b66241ecf1b7ca256e92000e23be/54D73763EF9DCA36CA2571B6002428B0/$FILE/06-
043a.pdf
This is a secondary source of law which is found through google search engine, this
source provides a pdf file on human rights and responsibilities act, 2006, which is main and
important law for present case study.
https://dhhs.vic.gov.au/
This link has been found on google which is a secondary source of data and is related to
Victoria state government. This site helped in providing legal advice for human and children's
rights in case of detention of Maxine in solitary confinement.
http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/soa1966189/
This is yet another link of secondary source for which relevant matter have been referred
for advising issues given in present case law. This source had been found on google and this is
another case law which is relevant for analysing and answering given case issues. In this link
summary offence Act, 1996 has been explained and relevant matter had been referred.
10