It Takes a Village: Supporting Children in the Justice System

Now, this is a particularly tricky area of law, and the challenge lies in finding solutions that go beyond mere punishment to addressing the root causes of why kids end up in trouble with our justice system. Often, their lives are marked by unmet needs – whether that’s in regards to education, mental health, safety and security at home – and the lawyers and judges responsible for their matters have the unique opportunity to influence those outcomes that will not only help that child but also strengthen their community.

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Children (Criminal Proceedings) Act 1987 (NSW)

• The appellant was charged with two counts of sexual assault with a child under 10 years old. At the time, the appellant was around 11 years old, and the complainant was his younger half-brother. The key issue at trial was whether the prosecution had rebutted the presumption of doli incapax. Despite evidence that the appellant had borderline intellectual functioning, the trial judge found that the presumption was rebutted for the first offence and that this logically extended to the second offence. The NSW Court of Criminal Appeal upheld the convictions, with a majority agreeing that the appellant’s understanding of wrongfulness in the first offence carried over to the second offence. However, the High Court overturned this decision, finding that there was insufficient evidence about the appellant’s upbringing and moral development to conclude beyond reasonable doubt that he understood his actions were seriously wrong. The convictions were quashed, and acquittals were entered.

• Many young people in the justice system are often misunderstood and lack proper support.
• The minimum ages of criminal responsibility vary by state and territory. Currently, the ages of criminal responsibility in NSW and Victoria are 10 years old, with Victoria considering raising it from 10 to 12.
• When questioned by police, children have the right to have a parent or guardian present and should refrain from answering potentially incriminating questions without them.
• In the Children’s Court, the focus is on rehabilitation rather than punishment, with programs like the Ropes program aimed at fostering understanding between youth offenders and law enforcement to prevent future criminal behaviour.
• The Ropes Program in Victoria can be effective in giving kids a second chance and preventing repeat offences, but may be less effective for more serious crimes.
• In Victoria, children accused of certain offences cannot be held in custody for longer than seven days without appearing before a court for reassessment. The court considers factors like the seriousness of the crime and the child’s safety.
• Often children involved in the criminal justice system experience issues like unstable family situations, homelessness, and lack of stable residence.
• Many young individuals who commit crimes are seeking a sense of belonging and validation, often leading them to join groups that offer camaraderie and protection. However, this can lead to them feeling pressured to commit crimes to prove their allegiance.

• The process of working with children in the criminal justice system requires you to understand their backgrounds, which can range from disadvantaged to privileged, and address their unique needs.
• Building trust and rapport with these youths, especially those from traumatic backgrounds, is crucial in guiding children through the legal system with compassion and professionalism.
• Establishing trust may involve connecting them with specialised therapists to handle their cases effectively.
• When communicating with children under 14, lawyers should simplify the language they use. They can also use visuals like diagrams to ensure children understand the concept of criminal acts.
• It is essential to adapt your communication styles, including using swear words if necessary, to establish rapport and facilitate understanding during consultations with children.
• Lawyers representing First Nations clients should undergo cultural safe training to better understand the cultural needs of their clients. By building rapport, understanding generational trauma, knowing how to advocate effectively in court and facilitating the necessary support for their clients, lawyers can provide more tailored and empathetic legal services.
• Students should gain as much practical experience as possible to understand different legal areas to determine their career path.
• The realities of working in the law may differ from what you expect, so exploring various law specialties through hands-on experience can help you discover what truly interests you and aligns with your skills and passions.

The Department of Justice and Community Safety, Victoria, ‘Children’s Court Youth Diversion Service’ (ROPES Program)

Karen Freeman and Neil Donnelly, (August, 2024), ‘The involvement of young people aged 10 to 13 years in the NSW criminal justice system,’ NSW Bureau of Crime Statistics and Research (BOSCAR).

 Hi listeners, before we begin today’s episode of Hearsay, we wanted to let you know about a quick content warning. In this episode, there will be some discussion of some sensitive topics, including sexual assault, child abuse, and trauma connected to racism and racial conflict.

Lawyers and judges working with children involved in the criminal justice system bear heavy and unique responsibilities. They have to protect the broader community from crime whilst also protecting children who may have committed a crime. Lawyers who work in this space know how much more there is to the story than the charges listed on a court document. These are young lives, shaped by difficult circumstances, often, and the decisions made in a courtroom can ripple through their futures.

Now, this is a particularly tricky area of law, and the challenge lies in finding solutions that go beyond mere punishment to addressing the root causes of why kids end up in trouble with our justice system. Often, their lives are marked by unmet needs – whether that’s in regards to education, mental health, safety and security at home – and the lawyers and judges responsible for their matters have the unique opportunity to influence those outcomes that will not only help that child but also strengthen their community. No doubt, it’s a demanding area of practice and one that I imagine can be deeply rewarding as well.

Now, dialling in today from Victoria is Lauren Cassimatis, Principal Lawyer, Director, and Founder of Gallant Law. Lauren is also an Accredited Criminal Law Specialist, and the founder of Connecting Lawyer Mums, a nationwide group supporting mothers in the legal profession.

Lauren, thank you so much for joining me today on Hearsay.

So I got into criminal law, by 2014 became a specialist, and 20 years later, I’m still practicing criminal law, very passionate about it. So the firm started in 2019, Gallant Law, and the reason why I created it was I wanted to develop a firm that was really client-centric, where we really honed in on our client’s personal circumstances, addressing their matter from a holistic point of view, rather than just focusing on the courtroom and how to best run the case. I wanted to look at long-term interests. How do we ensure their reputations are protected, their careers, their relationships, families? So as the clientele developed, I noticed myself representing more and more youths. I had a lot of worried parents coming to me with underage clients, looking for some support from somebody that I guess they knew was compassionate, but also as a parent so I can understand their challenges and obviously their objectives. So I found myself representing more and more children, so that’s become a bit of a specialty of mine as well over the past five years.

TIP: So, Lauren just mentioned that back in 2023, the Victorian Government announced plans to raise the age of criminal responsibility from 10 to 14. The idea was to stop young kids from getting caught up in the justice system too early. The change was supposed to happen in stages, first increasing the age to 12 in 2025, then to 14 by 2027. But recently, the government backtracked. Instead of going all the way to 14, they’ve decided to stop at 12. They say concerns over youth crime played a big part in the decision, but the move has sparked a strong backlash. Human rights organisations, legal experts, and First Nations representatives argue that keeping the age below 14 will continue to harm vulnerable children, especially those from marginalised communities.

Amnesty International has been particularly vocal, pointing out that a disproportionate number of kids in Victoria’s justice system are First Nations children – many of whom have already experienced systemic over-policing and racial profiling. They argue that locking kids up only adds to their trauma and cuts them off from the support they actually need to turn their lives around.

The Commission for Children and Young People is also pushing back, saying this decision ignores international standards and developmental research, which shows that kids under 14 shouldn’t be held criminally responsible. They stress that disadvantaged children – especially those dealing with trauma, mental health struggles, or disabilities – need proper support and not criminalisation. Their concern is that if the law stays as it is, more young people will end up stuck in the justice system, making it harder for them to break the cycle later on.

The second thing is that when you are intercepted by police or questioned by police as a child, you absolutely have a right to have a parent or guardian or an independent third person present during any questioning. So police are entitled to ask you for your age and address. However, any further questioning around whether you’re a suspect or a witness, if it looks like it’s going to incriminate you in any way, do not answer any questions unless you’ve got a guardian or a parent with you. So that’s one important factor. Whereas with adults, obviously police don’t have to honour that obligation, but you do have a right to silence as an adult if you are taken to the station to be formally interviewed. The same principles apply in that. Again, you’re allowed to have a parent or guardian in the interview room with you. You do not have to go down that path. You can actually say, “I don’t want a parent there, or a guardian,” but you then must have an independent third person. So they’re volunteers. The police often have them on their books. They’re not allowed to have any agenda attached to the case, no interest in the case, and they’re there basically to just assist a child, to make sure they’re treated properly, that no leading questions are asked. They can interject if they need to, and they’re also there to be a conduit to make communication with parents. And I should say that if you’re a child that’s been taken into custody, you also have a right to make contact with your parents first. Whereas with an adult, you don’t have that right all the time. Although you do have a right to speak to a lawyer and the same goes with as a child. You’ve obviously got a right to speak to a lawyer, get some legal advice before being questioned, and you can also have a lawyer in that room with you. Also with fingerprinting, so as an adult, different rules apply if police want to fingerprint you. If you are under 10, police cannot fingerprint you. If you are aged between 10 and 14, your parents or guardian must actually agree to the fingerprinting and otherwise, if you are 15 to 17, it has to be in the presence of, again, a parent or guardian or independent third person. As an adult, certain matters will start off in the magistrate’s court and conclude in the magistrate’s court if they’re deemed to be of, I guess, less seriousness, but more serious matters eventually make their way up to, in Victoria, the County court or Supreme Court, and in other states, either immediately to the Supreme Court or the District court, which is the County Court equivalent. With children’s matters, what happens is that they go, actually to the Children’s Court in the criminal jurisdiction of the Children’s Court. So in that jurisdiction you have a presiding magistrate that hears the majority of matters involving youths, although some very serious crimes do end up in the Supreme Court or the County Court. So what you will notice if you are practicing in the Children’s Court for the first time is that both parties, being the prosecutors and defense, actually remain seated at the bar table. So, appearances are not done on your feet. That’s designed to not intimidate the children. So it makes the court system a little less formal, a little less daunting. When you’re used to adult court, it becomes a habit that you want to stand, so we can be a bit of a laugh at times.

TIP: So Lauren is now talking about the rights of kids when they’re arrested and how they’re treated in court. Let’s break it down a little bit further and see what happens when a young person comes into contact with the youth justice system in NSW and Victoria.

So in NSW, children have special legal protections under the Young Offenders Act 1997 (NSW), and then in Victoria, these protections come from the Children, Youth and Families Act 2005 (Vic) and the Charter of Human Rights and Responsibilities Act 2006 (Vic).

One key thing to know is that young people in both states have rights when dealing with police. So for example, young people don’t have to go to a police station unless they’re actually arrested. If police suspect them of committing an offence, they can ask for their name and address, and refusing to provide it may be an offence. Beyond that, though, young people have the right to stay silent. Also in Victoria, police must tell them they have this right. In NSW, there are some exceptions – so when they’re driving, drinking in public while under 18, or if they witness a serious crime.

If a young person is interviewed by police, both states require a responsible adult to be present – this could be a parent, guardian, or an independent support person. In NSW, the police must arrange for someone to be there, and they can’t start the interview without them. That’s the same in Victoria – police have to make sure a guardian or support person is there before questioning begins.

Young people don’t have to sign anything or make a statement, and saying “no comment” won’t count against them in Victoria. In NSW, they’re also encouraged to speak to a lawyer before saying anything to police.

Fingerprinting rules vary slightly. Police can’t take fingerprints from kids under 10 in either state. So in Victoria, if the child is 10 to 14, police need either parental consent or a court order, and if they’re 15 to 17, a guardian has to be there. In NSW, police can take fingerprints from young people over 14, but if the charges are dismissed, those records have to be destroyed.

When it comes to court, both states have a Children’s Court for most youth cases. These courts are designed to be less intimidating and focus on rehabilitation rather than punishment. However, for serious offences, cases can be transferred to higher courts.

Now, in Victoria, if a young person is held in remand, they must have a court hearing within seven days. In NSW, instead of staying in a police cell, they’re usually placed in a Youth Justice Centre while they wait for their court date. However, both states try to process youth cases as quickly as possible.

Now if police refuse bail, the young person can apply to the court for it. If the court denies bail, they stay in custody until their hearing. In NSW, they can reapply for bail if they didn’t have a lawyer the first time or if new circumstances come up in their case. 

If a young person is granted bail, there are usually conditions attached so this could include reporting to police, living at a set address, or following a curfew. In NSW, bail conditions can also include supervision by Youth Justice, and requirements like attending school or rehabilitation facilities. In Victoria, bail conditions can be adjusted if they interfere with work or education. But in both states, if they don’t follow their bail conditions, they can be arrested and taken back into custody.

There’s also a greater wealth of facilities and resources in the Children’s Court. So what happens is that the magistrate can make orders, whether it’s on request of the lawyer or based on the magistrate’s discretion to connect children with certain pathways programs support. So for example, you might have a youth justice worker that’s there to counsel the youth and take them through certain assessments and programs prior to being sentenced, if they’re pleading guilty, or you might have a clinician, an actual psychologist, or there’s also different programs that are available to children rather than focusing on sentencing. So what happens with children’s crime or youth crime is that there’s a principle under the law enacted by parliament that essentially, their rehabilitation comes first. So the priority is not punishment in the kids’ court. The priority is rehabilitation. So there are programs there designed again to facilitate that. So in Victoria, for example, there’s a ropes program, and what that means is you are actually out on an obstacle course that involves ropes. You actually pair up with the police officer that arrested you and you do this ropes program together, and it’s kind of like a trust exercise where you are helping each other out on these climbing frames or swinging ropes, and then you also get to know a bit about each other’s lives. So the officer gets to know what’s going on with the child. The child gets to know all the challenges police officers face and sort of being on the front line. So it’s designed to make the child think again about committing crime and get to know more about the justice system and the police officer’s role so they’re not likely to, maybe want to cause any more mischief or rebel or be a risk to authority. Other sentencing options open in the kids court which aren’t open to adults are things like youth supervision orders, probation orders, diversion programs for kids. So again, they come with certain conditions or expectations to ensure that children don’t re-offend. So that’s a huge contrast to the adult system that we should pay attention to as lawyers,

TIP: David and Lauren just talked about the Ropes program in Victoria – a diversion program designed to turn a young person’s run-in with the justice system into something constructive. It’s been running since 2002 and gives first-time offenders in the Children’s Court a chance to avoid a criminal record. To be eligible, children aged between 12 to 18 must admit to the offence (or at least not dispute it), the offence has to be within the Children’s Court’s jurisdiction, and they can’t have done the program before. Plus, both the police and the presiding judge have to approve their participation, and they need a parent or guardian’s consent.

So, what does this program actually involve? It’s a mix of physical challenges like low and high ropes courses, along with discussions aimed at building positive relationships between kids and the police. If they complete the program successfully, the charges are dropped and they avoid a criminal record.

David wanted some stats, so here they are. An independent review by KPMG found that 88% of kids who completed the Ropes program didn’t reoffend, a huge contrast to the state’s average youth recidivism rate of 80%. But while the numbers are impressive, KPMG also pointed out a major limitation; the program only lasts one day, with little follow-up. Because of that, it might not be enough to bring about lasting change for kids who are at the highest risk of reoffending.

Victoria has other diversionary programs as well, including Right Step and Youth Justice Group Conferencing. These programs are partnerships between Victoria Police, the Children’s Court, and other community organisations, and they focus on keeping young people out of the formal criminal justice system and promoting rehabilitation.

So Right Step is available at the Moorabbin Children’s Court for kids who admit to an offence and have the victim’s consent. Over eight weeks, participants work with a case manager to tackle the underlying issues that led to their offending, and if they complete the program, their charge is dismissed, and they don’t get a criminal record.

Youth Justice Group Conferencing takes a different approach – it brings together the young person, the victim, and others involved in the case for an open conversation. The goal is to hold the child accountable while working towards a resolution. That might include an apology, restitution, or other rehabilitative steps. Unlike Ropes or Right Step, completing the program doesn’t necessarily mean avoiding a conviction, but it’s designed to encourage responsibility and positive change.

NSW also has similar programs, the most common one being Youth Justice Conferences. Courts can put cases on hold to allow young people to complete rehabilitation programs, especially if they have cognitive impairments or mental health issues. Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, kids with these conditions may be directed into programs instead of facing a standard court process.

Youth Justice Conferences in NSW work a lot like Victoria’s Group Conferencing – they bring together the child, their family, victims, police, and legal representatives to talk about what happened and create an outcome plan. The young person has to take responsibility, and the plan, again, might include an apology, restitution, or particular rehabilitation programs. If they successfully complete it, the Children’s Court won’t take any further action. But if they don’t agree to a plan or fail to follow through, their case will go back to court.

Just before we move on from, kind of, the process differences, I suppose one that we should touch on is bail. What are the bail considerations when you’re dealing with a young offender as opposed to an adult?

What happens is that they are placed in a youth justice facility as opposed to adult jail, depending on their age. If they are 18, for example, you do often find children being put in adult jails. So, huge risk to their physical safety, to their mental safety. They’re vulnerable. You’ll often have reports done by experts that are actually tendered to court to show just how counterproductive or hazardous an adult jail is to a child. So the court’s got to be mindful of that in terms of, do they keep the child in custody? Because the court often doesn’t have much say in terms of which facility the child might go to, especially in those pre-sentence days, so they’ve got to think about, alright, is bail a better option from the community protection perspective, but also a child’s welfare? Because we’ve seen cases before the Coroner’s Court where people have unfortunately passed away due to how threatening prison can be at times. So to put a child in that environment, I think it’s just reprehensible, in my personal opinion. So bail considerations – I mean, they keep changing in Victoria, I think we’ve seen about four bail reforms in the past year because of parliamentary pressures – let me put it this way, there’s a presumption of bail. Everyone has the right to bail. It’s actually up to the prosecution to prove that a particular accused person is a risk to the community and therefore should have their bail revoked. So when you think about children, the test applies, and even more so, in that do you keep this shot in the community with the right supports and the right supervision, or are the circumstances so severe that they have to be imprisoned? But more often than not they are granted bail, or at least they’re not remanded in custody for as long, maybe even up to a week. But there is an automatic presumption to bail with children. And beyond that, also, you can actually have bail overturned, and I won’t get into legal jargon, but often you can actually make an application before the magistrate court to have a child taken off bail completely. So they’re on summons, in other words. So they’re in the community with no conditions.

So I suppose the challenge of taking instructions from and advising a child in the context of criminal law is even harder, right? I think a lot of listeners, and I count myself in this group as a fairly privileged corporate lawyer who principally advises pretty comfortable adults, would be thinking, “oh, well it must be so difficult to get instructions from and advise a child.” But you’re not just doing that. You’re also getting instruction from and advising a child who is facing profound disadvantage in their lives. So tell me a little bit about the approach you take to dealing with that trauma, because in part, you have to speak about these things. You have to ask questions, pointed questions, forceful questions about these things, especially the circumstances that led that young person to be in court. But how do you do that in a trauma informed way?

So, often when you’re dealing with a child from a privileged background, they’ll want to have their parents in the room with them. Or at least, the parents insist on being in the room with them. And once you’ve gotten your client’s consent to, from a confidentiality point of view, also include the family in the room, you’re not just educating the children, but you’re educating the parents. Because sometimes, and it’s understandable, the parents want to go into bat for their kids. They want to inadvertently or deliberately minimise the offending or justify the offending. So you got to not only communicate with the child, but you’re communicating with the parents and taking them through, essentially what the elements of the crime are and how the case might be proven and how we might defend it, or how we might run a plea. But that can be quite a clinical type consultation. But nonetheless, you’ve still got a lot of material to work with because at the end of the day, the child comes from a stable background and they’ve got the right support there.

When your clients are used and disadvantaged, and so by that, I mean that they might either have no parents at all, they might be homeless, they might come from an abusive family background where they’ve been physically, sexually, emotionally abused. They might not have had any education. Some of them are illiterate. Others are victims of institutional abuse, so they’ve been through the system before and they’ve experienced a form of assault, and sometimes quite serious assault, by police or the prisons. You’ve got a lot of trauma there to work with too.

So how do you do that? First of all, get a feel for, again, you know, just through intuition, if this child is from a disadvantaged background, and then just actually talk to them human to human. So on the one hand have compassion and empathy to just talk to the client so that they feel that you’re approachable and you’ve got their best interest at heart, but also that you’re professional. So you’re not there to be their mate. You’re there to sometimes give them hard information, but you’re doing it from a place of kindness. So I think, be mindful of your intention, and your purpose in representing this child is really important. You know, in criminal law, we’re not out to make money. We are there to be advocates for vulnerable members of our community.

So look at it from that face, first is, I’m here because I want to make sure this kid’s got a better chance at life and can get through this justice system and then actually just develop trust. Sometimes it takes a while. It might not be done at the first consultation. Sometimes it takes a number of sessions to build up that rapport, build up enough trust for the client to want to take you through what’s happened in the past. So, for example, I had a young client who was the victim of very serious assaults as a younger child without any support in her life, and those assaults affected her self-worth, her self-esteem, just trusting adults, trusting the system, you know, child protection let her down, because she was actually being assaulted by her foster parents. So child protection, the one entity that was meant to protect her, let her down. So I had to actually connect her with a child play therapist because I thought, “how am I going to get this vulnerable girl to open up to me. How am I going to get her to feel comfortable?” So I connected her with a child play therapist where she could actually communicate through the play. So we developed a relationship that way through toys, through drawings. The child play therapist actually said to me during their very first session the young girl wouldn’t even get out of the car, and she had her dog with her and her dog was probably the only thing that kept her feeling safe. So she would actually communicate through the window of the car with the dog, and it was only when she finally felt safe enough to engage with the therapist that she would then go into the clinic with the dog, and that’s when she was able to then communicate to me using drawings and play. So you’ve got to sometimes be creative in the way that you want to draw instructions out of a client, but also how you want to advise them. And so trust is important. Because not only are they going to open up to you, but they’re going to accept your advice and then cooperate with you to make sure the case runs smoothly. It’s really important.

It really is important to have the right resources and connections because I’ve got neuropsychologists that I call. I’ve got them on speed dial. I’ve got social workers, youth workers, therapists, drug alcohol counselors. So I think about, “okay, what does my client need right now? Do they need a youth worker? Should I bring them into the picture?” Right now, I had a client who was of Pacific Islander background, so I called a pastor at a local Pacific Islander Church and he dropped everything and came to see that client that morning as well. So I think the client appreciated the fact that I’d gone the extra mile to connect him with someone that understood his spirituality, his culture, his language. We were able to build up immediate rapport that way. I had another client who was in court. The court was going to stand his matter down for a couple hours. He had no way of getting lunch or a train ticket to get around during that break. So, I’m not suggesting that lawyers shout lunch, but I was able to go to the Salvation Army and get him some coupons so he could go grab some food. In the meantime, I called a youth worker who then met up with him, took him bowling, and then brought him back.

So I don’t know if I’m allowed to get a little graphic here – so trigger warning – but I have a client that has been accused of sexual penetration, a child, because he thought it’d be a funny joke to insert an object in his friend, or body part of his friend, and the parents were just so stunned and shocked that he was actually charged with rape, and were saying to me, “but this is just a stupid practical joke, boys being boys, how can the police be involved? Can’t we just sort of apologise to the parents and make ends meet that way?” And they were crushed, and they kept insisting that this is just a harmless prank gone wrong. This was not a crime. And the same thing with the child, the child was absolutely stunned and horrified that it was a crime. And so again, does it come back to a lack of education around certain things, or is it because they just don’t have the capacity to know what they have done is a criminal offence?

TIP: In NSW, the Children (Criminal Proceedings) Act 1987 makes it clear that kids under 10 cannot be held criminally responsible. This is an irrebuttable presumption, meaning that no matter what, a child under 10 can’t be charged with a crime.

For children aged 10 to 14, a legal principle called doli incapax applies. This means that there is a presumption that children between that age are incapable of forming criminal intent, unless the prosecution can prove otherwise. And not just any proof will do. The prosecution has to show beyond reasonable doubt that the child understood their actions were seriously wrong, and not just naughty or mischievous.

So, the burden is on the prosecution to rebut doli incapax, and this isn’t easy. They need strong evidence about the child’s moral and intellectual development. So, this might be things like their upbringing, their education, and their general understanding of right and wrong. The High Court reinforced this in RP v The Queen (2016), making it clear that just because a child commits an offence, tries to avoid getting caught, or even admits what they did later on, that’s not enough to prove that they understood that it was morally wrong.

Victoria takes a similar approach. Under s 344 of the Children, Youth and Families Act 2005, children under 10 are automatically presumed incapable of committing a crime. Similarly to New South Wales, in Victoria for children aged between 10 or 14, doli incapax also applies, and the prosecution can try to rebut this. Again, the key question here is whether the child grasped the moral gravity of what they did. And in Victoria, the body that helps play a role in assessing a young person’s intellectual development is a Children’s Court Clinic. We will get into the specifics of these ages between 10 and 14 in a moment, but that’s the foundation of how both states approach criminal responsibility for young people.

My boy is seven and he’s going through this phase now where he likes to pinch people on the butt, and he’ll make little jokes about it. And I’ve actually had to say to him, “okay, don’t, you cannot touch anyone on their private parts.” And he looked at me and he is like, “what are you talking about? It’s funny.” And I said, “I know, and I know you’re too young for this and I know I’m getting very serious now, but just know that in my job, people get in trouble for doing that, so please never touch anyone on their private parts again, and I’ll talk about it again with you when you’re a bit older.” And he looked at me a bit like, what is she on about? But what could I do? If he goes on to be doing this, it could be a crime.

TIP: So David just mentioned he had an interesting chat with a previous guest about what to do when your client’s best interests are at odds with what they have instructed you to do. That episode was episode 88, back in season 4 with Steve Marks AM, the inaugural Commissioner of the NSW Office of the Legal Services Commissioner, and was called ‘Vae Victis? Rethinking the Value of Absolute Victory in the Practice of Law’. Also, we recommend that Steve’s episode will count as an ethics and professional responsibility point if you do want to go and listen to it after you finish this episode.

So I suppose you are more likely to interact with that kind of challenge when advising children, who often, we know as parents, don’t always know what’s best for them and can have, as we just said, a hard time understanding what is in their best interests or even what their instructions are to give you. So, have you ever had a case like that where you felt that the child’s wishes or instructions were very different to what you felt was in their best interest? And what did you do?

TIP: As Lauren is already noting, it is important to be aware of the disproportionate representation of First Nations youth in the youth justice system in both New South Wales and Victoria. Despite making up only around 2% of the Australian population, First Nations people account for 27% of the prison population and are 13 times more likely to be detained than non-First Nations Australians. Various initiatives and reforms have been introduced in both states to address these disparities and promote alternative justice pathways.

One of the key initiatives in NSW is the Maranguka Initiative in Bourke, which takes a justice reinvestment approach. Essentially, this means it’s shifting funding away from prisons and into community-led programs that actually tackle the root causes of crime. And so far, it seems to be working. Between 2015 and 2017, there was a 72% drop in under 25s being arrested for unlicensed driving, and major offences fell by 18%. A big part of this success comes from things like bail and sentencing reforms, warrant clinics, and driver education programs, which help break the cycle before it starts.

There are also other key programs in NSW, if you’re interested in going and checking those out. These include:

• The Youth Koori Court, which involves First Nations families and communities in sentencing decisions, opposed to the usual Children’s Court process. 
• Circle Sentencing, first introduced in Nowra, where Elders and community members help decide sentencing for adult offenders, making the process more culturally appropriate. 
• Aboriginal Community Justice Groups, which work alongside police, courts, and juvenile justice services to come up with local crime prevention solutions.
• The Aboriginal Client Service Specialist Program, which helps First Nations people navigate the legal system with support that’s culturally tailored to their needs.

Over in Victoria, there’s the Victorian Aboriginal Justice Agreement, which is a formal commitment between the government and First Nations communities to reduce negative interactions with the justice system. And it seems to be delivering real results, like in Warrnambool, where this approach led to a 44% drop in young First Nations people on youth justice orders.

We’ve listed some New South Wales initiatives, but to list some Victorian ones as well, their initiatives include:

• The Koori Youth Justice Program, where Koori youth justice workers support young people at risk of offending with mentoring, advocacy, and cultural connection.
• The Koori Intensive Support Program. That one focuses on keeping young people out of custody by helping them comply with bail conditions and reintegrate after release.
• The Koori Early School Leavers and Youth Employment Program. That one works on keeping young people engaged in school or work.
• Aboriginal Cultural Support Plans, which ensure young people maintain a strong connection to their culture and community.

Now what’s the common thread across all of these initiatives? Well, they focus on breaking the cycle early by supporting First Nations youth in a way that is community driven, culturally appropriate, and focused on long term change.

I have undergone cultural safe trading myself, and I’ve gone to a number of professional development courses run by several Indigenous institutions. So I’ve been able to become aware of that history and how it affects my client, and therefore I’m able to actually better advocate to the court on behalf of my client, but also, again, show my client that empathy and that understanding that I’m not ignorant to what’s going on, and nor am I applying a blanket approach when I am working with them. I’m customising my services to reflect what’s going on and my understanding of what’s going on.

Lauren, we’re nearly out of time. Before you go, I wanted to ask you a question for our listeners who are recent graduates or even still law students, as we customarily do at the end of Hearsay. For anyone who’s heard this episode and heard what an enormous and challenging undertaking it is to do your job –  it does sound rewarding, but it sounds very challenging as well – if anyone who’s heard that and wants to follow in your footsteps and do similar work, what’s one tip you would give them?

If you’re an Australian legal practitioner, you can claim one continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self assessed, as you know, but we suggest this episode entitles you to claim either a substantive law point, or an ethics and professional responsibility point. For more information on claiming and tracking your points, head on over to the Hearsay website.

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Thanks for listening, and we’ll see you on the next episode of Hearsay.