The Report, its scope and its context


1.18 This is the first inquiry in Australia that has considered in such breadth issues relating to children and the legal process. Even so, the Inquiry had the benefit of considering numerous reports and previous recommendations in many of the subject areas covered in the reference. A substantial body of work was contained in these previous reports. The repetition of concerns about successive generations of children and the consistency of our findings with those made in many of these reports reflect the persistent problems facing children in the legal process and emphasise the priority that they should now receive.

1.19 The Inquiry’s terms of reference were concerned with issues surrounding children’s participation within the legal process. The Inquiry was not concerned with the substance of the laws, rights or entitlements of children within these processes, except as these relate to the processes themselves. Many submissions to the Inquiry suggested that we should address issues such as the levels of income support provided to young people, the law with respect to joint custody of children, the appropriateness of detention for child asylum seekers and the problems of drug abuse among young people. However, these issues are beyond the terms of the reference.

1.20 The focus of the Inquiry on a broad range of legal processes enabled consideration of children’s involvement in these processes from a national perspective. This focus permitted a wide and detailed examination of legal processes in different jurisdictions, the relationships between these processes and across portfolios and the consequences of children’s involvement in one or more of the processes. In some areas, the legal processes examined were within State and Territory jurisdictions. These examinations were undertaken on the basis that they were necessary and relevant to the terms of reference.

Definition of ‘child’

1.21 In law, there is an ‘instantaneous transformation’ from childhood to adulthood at a specified age.[5] In Australia a person is considered to be legally an adult at the age of 18. This is the age at which a person can vote, marry without prior consent of court, enter into contracts, initiate and defend civil litigation on his or her own behalf and exercise a host of other adult legal rights and responsibilities.[6] International law, as set out in CROC, also defines a child as a person under the age of 18.[7] The Inquiry has adopted this definition.

1.22 The term ‘young people’ is often used in relation to people between the ages of 12 and 25. For the sake of clarity, the term ‘child’ will be used throughout this Report unless it is clear that only those aged 12 to 18 are being considered, in which case the term ‘young people’ will be used.

1.23 Chapter 2 provides statistical data on children in Australia. In that chapter, and throughout this Report, we attempt to identify and profile the children who are involved with the legal process and the manner and appropriateness of their involvement. Chapters 3 and 4 analyse the social, legal and political context in which issues concerning children and the legal process arise.

Definition of ‘the legal process’

1.24 For the purposes of this Inquiry, the legal process is interpreted broadly to include administrative processes, interaction with law enforcement and regulatory agencies, and court processes. Legal processes are the processes by which

    • individuals assert and enforce their legal rights

    • government agencies and courts regulate and assist those individuals

    • individuals, agencies and governments alike are held accountable for their actions.

1.25 Part B of the Report focuses on processes involved in decision making in the context of administrative and other services for children and Part C deals with the formal legal processes for children, including those associated with courts and the exercise of judicial power.

Assumptions about children and the legal process

1.26 The Inquiry has made assumptions relevant to the role that children are expected or able to play in the legal process. It is assumed that the family has primary responsibility for caring for children and preparing them for adulthood.[8] However, children’s development throughout childhood is a responsibility jointly shared with the state. This joint effort between families and the state should encourage the development of an individual capable of participating in and contributing to society. This assumption is exemplified in the provision of education for all children, in the assistance offered by the state to families so that they can better care for their children, by the state’s intervention in some families and by its further responsibility for children who are without family support or unable to live with their families. These assumptions concerning the roles of family and governments inform the recommendations in this Report

1.27 Within the legal system the traditional view has been that children are objects of concern to the legal system, the subjects of the law and of the legal process but not participants in the legal process. Early international declarations regarding children’s ‘rights’ were concerned principally with the enumeration of children’s economic, social and psychological needs. This reflected the assumption that children could and should rely on the exclusive protection and participation of adults in the legal process to ensure the exercise of their rights.[9] This view was premised on the assumption that children do not and should not have the capacity themselves to participate in legal processes to enforce their rights.

1.28 This assumption about children’s rights and their participation in the legal process is changing and it is in the context of this change that this Report is written. Changes in substantive and procedural law reflect a growing appreciation that children’s abilities and capacities to make decisions develop as they mature, and that children should be afforded a progressive right to participate in legal processes that affect them. Chapter 3 further analyses these changing assumptions.

1.29 Many of these developments in the law relating to children’s participation are articulated in CROC, which has been almost universally ratified.[10] Given the diversity of its States Parties and breadth of coverage, CROC is clear evidence of customary international norms regarding the rights and responsibilities of children. While CROC is not incorporated in its entirety into the domestic law of Australia, it is a strong statement of Australia’s commitment to children’s rights and their participation in legal processes.[11]

Children’s participation in the legal process

1.30 The Inquiry has received extensive evidence of the problems and failures of legal processes for children. Of particular concern is evidence of

    • discrimination against children, despite Australia’s obligations under the International Covenant on Civil and Political Rights (ICCPR) to guarantee equal treatment before the law[12]

    • failures, to some degree by each of the institutions of the legal process, to accommodate the changing notions of children’s evolving maturity, responsibilities and abilities, and in particular a consistent failure to consult with and listen to children in matters that affect them

    • the marginalisation of children involved in the legal process, whether by teachers, social workers, lawyers or judges, when decisions that are of significant concern to children are being made

    • a lack of co-ordination in the delivery of, and serious deficiencies in, much needed services to children, particularly to those who are already vulnerable

    • the systems abuse of children involved in legal processes, particularly the appalling state of care and protection systems throughout Australia and the manner in which child witnesses are treated

    • the increasingly punitive approach to children in a number of juvenile justice systems

    • the discriminatory impact of certain legal processes resulting in the over-representation of some groups, particularly Indigenous children, in the juvenile justice and care and protection systems

    • the concentration of specialist services and programs in metropolitan areas, disadvantaging rural and remote children in their access to services, the legal process and advocacy

    • inconsistencies in legislation dealing with legal capacities and liabilities of children.

1.31 Appropriate participation by children in legal processes is often difficult because legal processes are not designed for children. In making our recommendations, the Inquiry has had regard to the barriers that an adult legal system presents for children. Our emphasis is on appropriate and effective participation for children. The Inquiry does not advocate wholesale involvement of children in all legal matters or processes. However, where children are mature enough and willing to participate in the legal process, that participation should be on the basis that children are the beneficiaries of all of the law’s protections.

[5] R Ludbrook ‘Children and the political process’ (1996) 2(2) Australian Journal of Human Rights 278, 283.

[6] However, see paras 4.4-9 for a discussion of the changing views of the appropriate and varying ages used to define childhood.

[7] A child is defined as a person under the age of 18 unless the relevant national law specifies an earlier age of majority: art 1.

[8] See CROC preamble.

[9] G Van Bueren (ed) International Documents on Children Martinus Nijhoff Dordrecht 1993, xv.

[10] As of 15 September 1997 only the USA and Somalia had not ratified CROC.

[11] The effect of CROC in Australia is discussed in more detail at paras 3.20-22.

[12] art 26.