Background to the reference

The reference

1.1 On 28 August 1995, the then federal Attorney-General, the Honourable Michael Lavarch MP, referred jointly to the Australian Law Reform Commission (ALRC) and the Human Rights and Equal Opportunity Commission (HREOC) an Inquiry into children and the legal process. The terms of reference are reproduced at page 3.

The Commissions

1.2 The ALRC is an independent statutory corporation established by the Australian Law Reform Commission Act 1996 (Cth) to examine, on referral from the Attorney-General, legal matters requiring reform. In relation to those matters referred to it, the ALRC is required to

    • review federal law for the purposes of developing and reforming the law

    • consider proposals for the making, consolidation or repeal of relevant laws

    • consider proposals for uniformity between State and Territory law and federal law

    • consider proposals for complementary federal, State and Territory law.[1]

1.3 HREOC is an independent federal statutory authority established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth). It has a variety of powers to promote and protect the human rights of all people in Australia. In particular, HREOC can

    • inquire into acts or practices that may infringe on human rights

    • make recommendations to remedy those infringements

    • report on any actions that should be taken by Australia in order to comply with relevant international instruments.[2]

The federal Government has recently proposed to restructure HREOC and rename it the Human Rights and Responsibilities Commission.[3]

The terms of reference

1.4 The terms of reference require consideration of legislative and non-legislative measures that should be taken to address a number of different issues surrounding children and legal processes. These issues include legal representation and advocacy for children and their access to legal processes, the appropriateness of procedures by which children give evidence, the appropriateness and effectiveness of the legal process in protecting child consumers, and issues relating to children in federal jurisdictions. In addition, the terms of reference require the Inquiry to examine the particular needs of those children for whom the Commonwealth has a special responsibility, as well as issues relating to children in Australia’s remote communities.

1.5 In considering these issues, the Inquiry has had regard to the Commonwealth’s responsibilities for children arising under the Constitution and international human rights obligations, including those arising under the United Nations Convention on the Rights of the Child (CROC), as well as to relevant law, practice and experience in some overseas jurisdictions.

[1] s 21.

[2] s 11(1)(f).

[3] D Williams, Attorney-General and Minister for Justice Media Release 23 September 1997.