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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.
Parent’s powers
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.