|Legal restrictions on children |
There are a number of legal restrictions on children. Many of these restrictions apply to all persons under the age of 18 but some only apply to younger children (eg to persons under the age of 16). Some of the restrictions are absolute while others are relaxed if parental consent and/or court approval is given. The restrictions relate to recreational activities (eg drinking alcohol and gambling), civic participation (eg voting and serving as a juror), and to a range of other important matters such as making a will, taking legal action, consenting to medical treatment, having sex, getting married, changing one’s name, obtaining a passport and being eligible for a driver’s licence. The restrictions are justified on various grounds, including that children are not competent to do certain things; and that their vulnerability and immaturity means that they need to be protected from activities that may cause them physical, psychological or economic harm.
Discrimination against children
As well as being confronted with legal restrictions, children have faced restrictions or have been treated less favourably than adults in many areas of their lives as a result of policies and practices based on assumptions about them. State laws (since 1993) and federal laws (since 2004) make it unlawful to discriminate against a person on the grounds of age in areas such as employment and the provision of goods and services. However there are a number of exceptions to these laws. Some exceptions have been criticised such as the broad exception for compliance with other laws, and the exception for youth wages. The issue of youth wages is controversial and has been the subject of recent inquiries at the federal level. The argument against youth wages is that they breach the principle of equal pay for equal work and that they can be substituted with competency-based wages. The reason given for maintaining youth wages is that they are necessary to protect young people’s position in the labour market.
School student’s rights
Students with disabilities: State and federal laws prohibit educational authorities from discriminating against students with disabilities (the state laws only apply to public educational authorities). However, it is not unlawful to discriminate if the student with a disability requires services or facilities which would impose an ‘unjustifiable hardship’ on the educational authority. Some recent cases have upheld the rights of students with disabilities but in one case the High Court held that the school had not discriminated against a student with an intellectual disability who had been excluded from school because of violent behaviour associated with that disability. According to Dr Ian Dempsey, while the laws have increased awareness about disability, the spirit of the laws continue to be resisted at all levels. This may improve after the Federal Disability Standards for Education come into effect in August 2005. The Standards clarify the obligations of public and private education authorities and schools.
School bullying: The incidence and impact of school bullying, including ‘e-bullying’, has been recognised as a major problem in NSW in recent years. Recent state and national initiatives have sought to address this problem. In January 2005, the NSW Department of Education published a new policy that requires every government school to develop and implement an Anti-Bullying Plan. In addition, on 30 March 2005, Speak Up Day was launched in which schools provided opportunities for bullied students to tell their stories in a safe and supportive environment and hosted a range of other activities to address bullying. At the national level, the Bullying. No Way! website was launched in 2002, and the National Safe Schools Framework was produced in 2003, along with federal funding to help schools implement best practice programs.
Suspensions and expulsions: The NSW Department of Education’s policy, which only applies to government schools, sets out the grounds for suspending and expelling a student, including grounds for which suspension is mandatory. It also outlines the procedures for notifying and resolving suspensions. It requires schools to comply with the principles of procedural fairness and it contains a right of appeal. The policy has been criticised on various grounds including the zero tolerance approach to some types of misbehaviour, the length of suspensions and the absence of an independent appeal panel. Under new laws enacted in 2004, private schools are required to have suspension and expulsion policies that are based on principles of procedural fairness. It has been recognised that suspensions and expulsions can have a negative impact on students and their life opportunities. One recent Government strategy to address this is the creation of suspension centres to help students return to school after a long suspension.
Student’s privacy: The NSW Department of Education is required to comply with state privacy laws, which regulate the collection, storage, access, accuracy, use and disclosure of personal information. However, as permitted by the Act, the Department of Education has made a Privacy Code of Practice that modifies the operation of the Act. The Code was made on the basis of the view that “in some circumstances, the privacy rights of students must necessarily be a secondary consideration to the relationship between schools, parents, guardians and caregivers”. Most private schools are required to comply with federal privacy laws. This paper also outlines student’s rights in relation to bag and locker searches and discusses the use of drug testing.
Consenting to medical treatment
The common law position is that a child can consent to medical treatment when he or she has sufficient understanding and intelligence to enable him or her to understand fully what is proposed. The child’s consent will be valid notwithstanding parental opposition but a court can override the child’s consent. If a child is not competent to consent, his or her parents can generally give consent. However, there are certain medical procedures for which parents cannot give consent and which require court authorisation. Courts can override a child’s refusal to have medical treatment but it is unclear in Australia whether parents can do so. In the United Kingdom, the courts have held that parents can override a child’s refusal. Various statutory provisions in NSW complicate the law on children’s capacity to consent to, and refuse, medical treatment. The NSW Law Reform Commission is currently considering codifying or amending this area of the law. The Commission released an Issues Paper in June 2004.
The Family Law Act 1975 provides that each parents of a child who is not 18 has parental responsibility for the child. With parental responsibility comes the power to make decisions relating both to the long-term and day-to-day care, welfare and development of the child. Parents have the power to determine matters such as the child’s name, their education, their religion, where they are to live and the discipline they receive. However, the 1986 Gillick decision, which was approved by the Australian High Court in Marion’s case in 1992, has been seen as a watershed case in establishing children’s right to make their own decisions as they mature. More recent decisions in the UK have retreated from that decision and the law in Australia is not clear on what decisions children can make as they mature, other than decisions relating to medical treatment. Provisions were inserted into NSW care and protection laws in 1998 to deal with serious conflicts between parents and children. They provide for conciliation but also allow the Children’s Court to make orders re-allocating parental responsibility. Some of these orders have been described as a child-parent “divorce”.
Exclusion of children from shopping centres
Children view shopping centres as attractive places to frequent. They can socialise and express themselves away from the direct control of parents. Shopping centres also offer children entertainment and access to important services. However, children’s use of shopping centres has been seen as problematic for other users and for the owners and managers. Conflict has arisen between children and security guards who are employed to police the centres. Many children have been issued with banning notices and, in some cases, failure to comply with such notices has led to trespass charges. Exclusion from a centre can have significant consequences for children, particularly in terms of accessing essential services. Initiatives have been developed to address this problem including the development of shopping centre protocols in some areas. In 2003, the NSW Shopping Centre Protocol Project produced a guide on how to develop a local protocol.
Children’s right to be heard
Article 12 of the UN Convention on the Rights of the Child recognises children’s right to be heard in all matters affecting them, including in government and legal processes. To some extent this right has been recognised in NSW.
Government processes: Involving young people in the decisions and processes that impact on their lives is a key part of the NSW Government’s youth policy. The NSW Youth Advisory Council also gives young people aged 12-24 a means to participate in the development of government policies and programs. In addition, since 1998, the NSW Commission for Children and Young People has been promoting children’s participation in various ways. In recent years, in Australia and the UK there have been calls for a lowering of the voting age from the age of 18 to, for example, the age of 16. The arguments for and against such a proposal are outlined.
Legal processes: The formal legal processes that most directly involve children are the care and protection, family law, adoption and juvenile justice systems. The lack of participation by children in legal processes was highlighted by a national inquiry’s 1997 report. Since then the NSW Law Society has published Representation Principles for Children’s Lawyers and there have been some notable developments in relation to children’s participation in care and protection and family law proceedings. Child representatives in care and protection proceedings are now required to act on the instructions of the child unless he or she is incapable of giving instructions. In family law proceedings, the best interests model of representation continues to operate but guidelines have clarified the child representative’s role and the Family Court is currently examining different ways of involving children directly in proceedings. With regards to civil proceedings, the position remains that children cannot bring legal actions in their own right and name. Instead they must act through an adult representative.
The human rights of children in NSW
The UN Convention on the Rights of the Child sets out children’s human rights. This includes children’s civil and political rights as well as their economic, social and cultural rights. The Convention is not part of the law in Australia but complaints can be made to the Human Rights and Equal Opportunities Commission about breaches of the Convention by the Federal Government. The Federal Government has a duty under international law to implement the Convention and to ensure that the States and Territories also implement it. The UN Committee on the Rights of the Child monitors Australia’s compliance with the Convention.
The UN Committee and non-government organisations have expressed a number of concerns about Australia’s compliance with the Convention. This paper focuses on issues relevant to NSW. Concerns have been expressed about child employment laws, laws that do not prohibit all forms of physical punishment and laws restricting children’s freedom of assembly. Criticisms have also been made regarding the ongoing poor outcomes for indigenous children, in relation to health and education and also in relation to their overrepresentation in the juvenile justice and care and protection systems. Other concerns about the juvenile justice system include the increasing imposition of fines on children and the recent involvement of the Department of Corrective Services in the management of juvenile offenders. Youth suicide and children’s access to mental health services are two other areas of concern.