Children in the legal process

This inquiry into the way children and young people are treated by the legal system and legal processes began on 28 August 1995. This was a joint inquiry conducted by the ALRC in conjunction with the Human Rights and Equal Opportunity Commission (HREOC).

Seen and heard: priority for children in the legal process (ALRC Report 84) concluded that Australia’s legal and child protection systems were failing in their basic duty to protect children from neglect, abuse and exploitation.

Despite international and professional recognition of children’s rights and capacities to participate in legal processes affecting them, children are often ignored, marginalised – even mistreated – by the agencies and organisations that are supposed to assist them.

Key recommendations

• A national children’s summit of heads of all Australian governments should be held as a matter of urgency.
• A special national taskforce on children should be established.
• A federal Office for Children (OFC) should be created within the Department of Prime Minister and Cabinet, to advise on and coordinate national policy and programs.
• A Charter for Children in Care should be developed by the OFC, in conjunction with the Department of Health and Family Services and the relevant state and territory welfare agencies. It should be enacted in legislation at federal, State and Territory levels and should create a fiduciary duty in the relevant governments.
• A specialist state Family and Children’s magistracy should be developed to exercise federal family law jurisdiction as well as to hear care and protection applications and juvenile justice matters, to overcome the duplication of family proceedings.
• The report’s other recommendations include:
  • fair, transparent processes in schools when considering the expulsion of students;
  • measures to ensure the appropriate participation by children in family law and care and protection proceedings;
  • better procedures for child witnesses; and
  • child consumer protection strategies.

Implementation

There has been no official federal government response to the findings and recommendations made by the ALRC and HREOC in the Seen and Heard report. A number of recommendations have been adopted by particular departments and agencies at state, territory and federal levels. The report has also been influential at a community level.

In November 2007, the National Children’s and Youth Law Centre and Youthlaw held a workshop to examine and discuss the implementation of the Seen and Heard Report. A report examining the recommendations of Seen and Heard, and subsequent actions taken in relation to the recommendations, is expected to be available in mid-2008.

Some of the significant recommendations and actions to implement the recommendations are outlined below. 

An Office for Children

One of the key recommendations was for the establishment of an Office for Children, within the Department of the Prime Minister and Cabinet (Recommendation 3).

The Joint Standing Committee on Treaties report on the United Nations Convention on the Rights of the Child was tabled in Parliament in September 1998. The Committee supported Australia’s ratification of CROC (although there were three dissenting members of the Committee with separate comments included in the report) and recommended the establishment of an Office for Children as an independent statutory authority attached to the Prime Minister’s portfolio, with functions similar to those recommended in ALRC 84. The then shadow Attorney-General, Mr Robert McClelland MP, who was a member of that Committee, restated his support for the establishment of such an office in January 1999. A government response to the Committee’s report, released in March 2003, indicated that the government did not support establishment of a separate Office for Children—it indicated that the Department of Family and Community Services and the creation of the position of Minister for Children and Youth Affairs had ensured an integrated approach across the spectrum of Commonwealth policies and programs for children. [There has been no Minister for Children and Youth Affairs since October 2004].

However, a national children’s commissioner, and a number of other issues raised in the Seen and Heard Report, were canvassed by a newly elected Australian Governmentas part of its discussion paper Australia’s Children: Safe and Well—A National Framework for Protecting Australia’s Children, which was released for public consultation in May 2008.

In 2009, the Australian Government released Protecting Children is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–2020. A number of the outcomes outlined in the Framework reflect recommendations in Seen and Heard, including:

• exploring the potential role for a National Children’s Commissioner (Seen and Heard, Recommendation 3);
• national standards and monitoring of the out-of-home care system (Seen and Heard, Recommendation 161–162); and
• improvement in data collection (Seen and Heard, Recommendation 166).

Each state and territory has an Office within its community services portfolio that is focused on children, children and youth affairs, or children and families. Queensland, Tasmania, New South Wales and the Northern Territory each have independent Children’s Commissioners with various roles and powers.

Schools

Chapter 10 of Seen and Heard contains a number of recommendations in relation to children and education.

Significant work has also been done to address bullying and harassment in schools (Recommendation 38), with the National Safe Schools Framework developed by the Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) in 2003, and various initiatives and policies implemented by education departments in the states and territories.

Seen and Heard recommended that national standards be developed for student support services in primary and secondary schools (Recommendation 42). This has been partially implemented in secondary schools with the Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) adopting in 2001 the Framework for Vocational Education in Schools . Although focused on careers education, the framework incorporates the key element of providing support services to students, and linking them with support services in the wider community as they make the transition from school.

Consumers

Chapter 11 of Seen and Heard contains a number of recommendations in relation to children as consumers.

Recommendation 63 called for international and Australian research on the effects of the media on children to be comprehensively reviewed and made available. In December 2007, the Australian Communications Media Authority published a report of a community research study of Australian children’s use of electronic media and the way parents mediate that use. The Media and Communications in Families 2007 report also includes an up-to-date review of the academic research literature on the long-term influence of media on children and families.

Recommendations were also made to develop best practice guidelines for advertisers to protect children from harm (Recommendations 65, 66). In 1998 the Australian Association of National Advertisers adopted the Advertising to Children Code. This Code, in addition to other advertising codes, is used by the Advertising Standards Board when considering complaints about advertisements.

Legal representation of children

Seen and Heard recommended the development of clear standards for the representation of children in all family law and care and protection proceedings (Recommendations 70-77). There has been no legislative change to support these recommendations. However, good guidelines for lawyers were developed in 1999 for the Children’s Court of Victoria by the Victoria Law Foundation, and in October 2000, the Law Society of New South Wales released Representation Principles for Children’s Lawyers (revised in March 2002). The NSW principles were drafted with the consideration of adopting uniform principles across all Australian jurisdictions, and although supported in other states and territories, have not been extended to other jurisdictions.

Recommendation 83 called for the creation of clinics, similar to the Children’s Court Clinic in Melbourne, to be attached to all children’s courts to provide expert advice on the best interests of the child. A Children’s Court Clinic was established in Sydney (now Parramatta) in 1998 to provide assessments in relation to care and protection proceedings, and extended to making assessments in the criminal jurisdiction in 2003. No other states or territories have established a clinic, although a federal Child Protection Service to provide such assessments in family law cases was recommended by the Family Law Council in its 2002 report Family Law and Child Protection.

Children as witnesses

Chapter 14 of Seen and Heard made a number of recommendations to enhance the collection and giving of children’s evidence. The issue of improved treatment of children as witnesses has continued to receive attention. The Queensland Law Reform Commission released reports in 2000 and 2001 dealing with child witnesses, making findings and recommendations echoing those in Seen and Heard. A number of those recommendations have been implemented by the Evidence (Protection of Children) Amendment Act 2003 (Qld).

At the federal level, the Measures to Combat Serious and Organised Crime Act 2001 contained measures relating to child witnesses in federal sex offence trials, consistent with the recommendations of Seen and Heard. These include a limitation on the examination and cross-examination of child witnesses, provision for the use of closed-circuit television and restriction of the publication of details that could identify a child witness or child victim.

A number of issues relating to children’s evidence were reviewed as part of the joint inquiry by the ALRC, NSW Law Reform Commission and Victorian Law Reform Commission on Uniform Evidence Law, completed in 2005. The Evidence Amendment Act 2008 (Cth), which implements most of the recommendations of the Uniform Evidence Law Report, also implements a number of recommendations in the Seen and Heard Report. These include:

• a new test for determining a witness’ competence to give sworn and unsworn evidence that focuses on the ability of a person to act as a witness (Recommendation 98 of Seen and Heard);
• a prohibition on general warnings about the unreliability of children’s evidence, instead permitting a warning to be given only upon request of a party and where the court is satisfied that there are circumstances particular to that child (other than the child’s age) that affect the reliability of the child’s evidence (Recommendation 100); and
• confirmation the court may seek expert opinion evidence to assist it to determine if a witness is competent to give evidence (Recommendation 101);

Other significant initiatives have included:

• the NSW Child Sexual Assault Specialist Jurisdiction Pilot Program, launched in 2003 and evaluated in 2005;
• creation of a Child Witness Service in Western Australia and Victoria;
• increased legislative support and practical use of CCTV or screens in most jurisdictions;
• work by the Australian Institute of Judicial Administration to draft a Child Witnesses Benchbook, which is hoped to be released in 2008.

Family Law

Recommendations 78–81 and Chapter 16 focused on the representation of children and children’s issues in family law proceedings. There have been changes to the law in relation to child representatives, case management process for children’s matters, and dispute resolution services in the family law system, many of which are consistent with the recommendations of Seen and Heard. Major changes have included:

• a new Federal Magistrates Court, commencing operations in 2000, providing quicker and simpler processes for some family cases;
• a shift from providing dispute resolution and counselling services within the court to most services being delivered in the community, with changed requirements to register as a family dispute resolution practitioner;
• changes to the requirements for parenting plans, with registration no longer required and a greater emphasis to the involvement of dispute resolution to develop parenting plans, particularly with the establishment of Family Relationships Centres across Australia;
• the Magellan project in the Family Court of Australia (1998) and Columbus project in the Family Court of Western Australia (2001), each of which led to changes to the management of cases involving allegations of child abuse;
• the introduction of less adversarial trial management in the Family Court of Australia, initiated by the Children’s Cases Program (2004) but given legislative basis with the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth);
• change to the role and responsibilities of children’s representatives, including changing the title to ‘Independent Children’s Lawyer’, initiated by the Family Law Amendment (Shared Responsibility) Act 2006 (Cth), based on recommendations of the Family Law Council report Pathways for Children: A Review of Children’s Representation in Family Law (2004);
• extensive consultation between the Family Court of Australia and local Indigenous populations to enhance awareness of and access to the Court, particularly with the establishment of the Indigenous Family Consultants Program.

Recommendation 158 called for an awareness campaign to provide medical practitioners with information about legal requirements for approval for the conduct of sterilisation operations on young people with a disability. In 1998, new notes for guidance were added to the Medicare Benefits Schedule to alert medical practitioners to the legal requirements, and possible consequences, of sterilisation procedures on a person under the age of 18. This was followed in 2000 by an open letter from the Attorney-General of Australia to all medical practitioners addressing these issues.

Care and protection

A large number of recommendations in the report were aimed at better coordination between federal and state and territory agencies with responsibility for child protection. In particular, Recommendation 124 stated that protocols for inter-agency co-operation between the Family Court, state and territory family services departments and the relevant children’s courts should be developed where they do not apply already. On 8 August 2003, the Attorney-General announced that the Standing Committee of Attorneys General had agreed to establish a working group to look at ways to better coordinate the Commonwealth’s family law system with child protection systems at state and territory levels. While this issue has not been pursued by SCAG, a number of individual memorandums of understanding have been developed between various courts and government agencies to enhance the sharing of information in appropriate cases.

Chapter 17 of Seen and Heard focused on issues in the child protection jurisdiction. A number of state and territory governments have been active in relation to care and protection issues.

Since conclusion of the Seen and Heard inquiry, new legislation relating to care and protection has commenced operation in NSW (Children and Young Persons (Care and Protection) Act 1998 ; Queensland (Child Protection Act 1999; the ACT (Children and Young People Act 1999; Tasmania (Children, Young Persons and Their Families Act 1997, commenced operation in 2000); Western Australia (Children and Community Services Act 2004; and ther Northern Territory (Care and Protection of Children Act 2007). Some of the changes are consistent with recommendations in Seen and Heard—for example the inclusion of a Charter of Rights for Children in Care in the Queensland legislation—while others have not adopted the suggestions made by the Seen and Heard report, particularly in relation to the representation of children.

Key recommendations in this area were for the creation of national standards for legislation and practice in care and protection systems across Australia (Recommendations 161–162). This issue has been raised for discussion by the Australian Government as part of its discussion paper Australia’s Children: Safe and Well—A National Framework for Protecting Australia’s Children, which was released for public consultation in May 2008.

Criminal law

Chapters 18, 19 and 20 of the Seen and Heard report considered issues in the juvenile justice jurisdiction. In relation to the fact that the age of criminal responsibility differed across the jurisdictions, Recommendation 194 urged that Tasmania and the ACT change the age of criminal responsibility from eight to 10 in line with all other Australian jurisdictions. With the commencement of the Youth Justice Act 1997 (Tas) on 1 June 2000, and Children and Young People Act 1999 (ACT) on 1 December 2000, a uniform age of criminal responsibility has been achieved.

Mandatory sentencing of juvenile offenders became a topic of widespread debate in 1999. The ALRC and HREOC supported repeal of the existing laws in Western Australia and the Northern Territory (Recommendation 242). Senator Brown of the Greens, with support from the Democrats and the Labor Party, introduced the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 into the Senate in August 1999. The Bill was premised on Australia’s international obligations under the UN Convention on the Rights of the Child, and was intended to nullify any mandatory sentencing law in Australia as it applies to persons under the age of 18. While the federal government indicated it would not support legislation to overturn Western Australian or Northern Territory law, it did hold discussions with the Northern Territory on the issue. In April 2000, it was agreed that the Northern Territory would amend legislation to allow juveniles to be diverted into alternative programs prior to attracting charges that would attract mandatory sentences, and that the federal government would provide specific funds to support the development of appropriate diversionary programs. Following election of a Labor government in the Northern Territory, the mandatory sentencing regime applying to both adults and juveniles was repealed in 2001. The Western Australian laws, which apply only to home burglaries, remain in place.

Key recommendations in this area were for the development of national standards for juvenile justice, covering investigation and arrest, bail conditions, sentencing and detention.

In 1999, the Australasian Juvenile Justice Administrators (AJJA) adopted the Standards for Juvenile Custodial Facilities, which are based on international obligations. However, the extent to which these standards have been implemented in each jurisdiction has varied greatly, preserving the lack of national consistency.

The ALRC gave further consideration to sentencing laws applying to juvenile federal offenders as part of its inquiry on Sentencing of Federal Offenders, which concluded in 2006, and made further recommendations for the development of national best practice guidelines for juvenile justice.