Children as witnesses, applicants and participants in federal legal processes

2.144 Children are involved in federal legal processes in relation to income support benefits, immigration and other federal government services, particularly where services or visas are denied or revoked. The Inquiry researched annual reports and requested information on child witnesses, applicants and other participants from federal courts and tribunals, the Commonwealth DPP and the AFP to ascertain the extent to which children were involved in federal courts and tribunals. The results, although not providing a complete picture of the numbers of children involved in the federal jurisdiction, can give an indication of the extent of this involvement.

2.145 The Immigration Review Tribunal (IRT) and the Refugee Review Tribunal (RRT) conducted informal surveys of their members at the Inquiry’s request to ascertain the numbers of child applicants, children the subjects of applications and child witnesses who appeared in these forums.

2.146 The IRT’s informal surveys indicated that in the first 3 months of 1997, 41 children were involved in 32 separate cases before the Tribunal.[340] Most of these children were children of applicants or secondary applicants rather than primary visa or review applicants.[341] The IRT member questionnaires also disclosed that four children gave oral evidence in two of these cases.[342] One case concerned a 14 year old whose visa was cancelled along with those of his parents; the second case involved three children aged 13, 15 and 17, all of whom gave evidence in relation to their ‘special need relative’ application.[343]

2.147 A large number of children were primary applicants for review of a decision to cancel or refuse to grant a protective visa. From July 1993 to December 1996, 51 children lodged applications for review in the RRT.[344] There was an oral hearing in 25 of these cases.[345] A further 1 554 applications for review in that period listed children as a secondary applicant.[346] In all, 42 children were represented by legal aid or migration agents in cases before the RRT.[347] The RRT’s informal survey of its members found that approximately 52 children had appeared as witnesses before 16 members of the Tribunal from July 1993 to December 1996.[348]

2.148 In 1995-96, young people lodged 103 appeals in the Social Security Appeals Tribunal (SSAT) regarding decisions made about the YTA and 20 appeals regarding the now discontinued Young Homeless Allowance.[349] The SSAT estimated that approximately 30 of these young people were represented in their appeals by a legal or community assistance agency.[350] A further 2 418 appeals were lodged regarding Austudy benefits and 16 were lodged regarding Abstudy, although these numbers were not broken down into applications by school students, tertiary students or parents.[351] The SSAT estimates that approximately 200 children are represented by their parents in relation to Austudy appeals.[352] Appeals were also lodged in the SSAT regarding the Special Benefit, the Child Disability Allowance and other payments that may involve or benefit children, although a breakdown regarding the age of the applicants was not available. The SSAT has a policy that face-to-face hearings are to be held wherever possible. In approximately 89% of all cases in 1995-96 the applicant, including child applicants, appeared before and took an active part in the proceedings.[353] The SSAT rarely has witnesses in the formal sense and only three children were noted to have such appearances in 1996.[354]

2.149 The Administrative Appeals Tribunal (AAT) hears appeals from the SSAT in cases involving YTA, Austudy and other government benefits received by young people. Decisions regarding certain migration and refugee applications may also be reviewed by the AAT. However, the appellate nature of the AAT’s jurisdiction means that few children are personally involved in that tribunal as witnesses.[355] In addition, the 1 336 decisions appealed to the AAT from the SSAT in 1995-96 were not broken down into the types of benefits or ages of applicants involved,[356] nor were the 145 appeals of migration and refugee decisions.[357]

2.150 Given the nature of the Federal Court’s jurisdiction, children are unlikely to be applicants or give evidence in civil matters in that court. Matters concerning children that do come before the Federal Court are likely to be appeals or reviews of administrative matters. The RRT identified 6 children who, from July 1993 to December 1996, were primary applicants before the RRT and whose cases were appealed to the Federal Court.[358] The IRT, although noting 87 appeals to the Federal Court in 1995-96, did not indicate the number of cases in which the applicant was a child.[359] Statistics could not be found on other children’s matters that may come before the Federal Court.

2.151 The Family Court of Australia handles many civil matters involving children. However, although a child may apply for many types of orders,[360] no statistics were available regarding the number of child applicants and such applications. The general consensus is the direct participation of children as witnesses in family proceedings is discouraged by the court.[361] As a result, child witnesses rarely appear in the Family Court.

2.152 No statistics could be found on children involved in the federal criminal jurisdiction, other than children charged by the Commonwealth DPP.[362] Some children may appear as witnesses in federal criminal proceedings, for example as witnesses to the importation of illicit drugs or welfare fraud or as a victims of sexual assault under the Crimes (Child Sex Tourism) Amendment Act 1994 (Cth). In the only known proceedings under that Act, two Cambodian boys gave evidence for the prosecution in a committal hearing.[363]

[340] Results calculated from completed questionnaires provided to the Inquiry by IRT.

[341] ibid.

[342] ibid.

[343] ibid.

[344] Letter from Principal Member RRT 7 May 1997.

[345] ibid.

[346] ibid.

[347] ibid.

[348] ibid.

[349] Letter from Operations Manager SSAT 2 October 1996.

[350] ibid.

[351] ibid.

[352] ibid.

[353] See SSAT Annual Report 1995-96 AGPS Canberra 1996, 21.

[354] Letter from Operations Manager SSAT 30 December 1996.

[355] Letter from President AAT 9 September 1996.

[356] SSAT Annual Report 1995-96 AGPS Canberra 1996, 69.

[357] Dept of Immigration and Multicultural Affairs (DIMA) Annual Report 1995-96 AGPS Canberra 1996, 14.

[358] Letter from Principal Member RRT 7 May 1997.

[359] IRT Annual Report 1995-96 AGPS Canberra 1996, 13.

[360] See para 16.58.

[361] See paras 16.55-56.

[362] See para 2.88.

[363] End Child Prostitution in Asian Tourism DRP Submission 67.