Year 11 Preliminary Course - Law in Practice Option

1. CHILDREN ANDTHE
LAW
Part 3 - Law in Practice
Mr Shipp

4. EXTENDED RESPONSE WRITING

5. DEFINING CHILDREN AND
YOUNG PEOPLE
• Children – persons under 15years and younger (varies from
legal context)
• Young people – persons aged 16-18 (NSW)
• Legal age of Adulthood 18 years
• Covered under :The Children and young Persons (care and
Protection) Act 1998 (NSW)
• Certain laws treat children and young people differently.
• Excellent website: www.lawstuff.org.au

6. HISTORY OF CHILD STATUS
• Historically children have no legal
rights until adulthood
• Changes to children’s working
rights improved their lives
• Children’s health problems existed
throughout history
• Public education did not exist until
the end of the 19th century
• The concept of “children should be
seen but not heard”

7. DISCUSSION POINT
• Why do laws have to treat children and young people
differently?
• Which areas of law are children treated differently?

8. • Latin term:‘incapable of wrong’
a child under 10 cannot be
held legally responsible of a
criminal or civil offence
• In Australia this term is carried
to 14 but recent research
suggest the age should be
amended to 12
Important
Definition: doli
incapax

9. • 1. Convention on the Rights of
the Child (CROC) (1989) –
United Nations (International
Instrument)
• Covered under the Family Law
Act 1975 (Cth) and its
amendments,Young Offenders
Act 1997 (NSW)
• Most widely ratified human
rights treaty, only USA, South
Sudan(not signed) and Somalia
have not ratified
RECOGNITION OF CHILDREN
RIGHTS

10. CONVENTION RIGHTS OFTHE CHILD 20YEARS ON

11. • Challenges for CROC in
Australia
• Indigenous children
• Asylum seekers and
children
• Youth suicide
• Children exposed to
domestic violence
• Juvenile Crime

12. DISCUSSION POINT
• In your opinion, what should be the age of criminal
responsibility? older? younger? kept the age it is?

13. • 2. The Gillick Case
• Gillick vs West Norfolk and
Wisbech Health Authority
(1985), adopted in Australia
under Marions Case
• A 16yr old was capable of
consent in medical matters as
long as they understand the
implications of their decisions

14. • Main piece of legislation for disputes between married and de
facto couples, including children.
• The paramount consideration for orders made under this act
concerns “the best interests of the child”.
3. The Family Law Act 1975 (Cth) and
its amendments 1995, 2006 and 2012

15. • 4. Children and Young Persons (Care and Protection)
Act 1998 NSW
• Outlines the roles of child protection in NSW
• Reflects the articles of CROC (Legally binding international
law)

16. HOW A CHILD BECOMES AN
AUSTRALIAN CITIZEN
• The Australian Citizenship Acts
(Cth) 1948 and 2007
• Any child born in Australia is a
citizen if at least one of the parents
is an Australian citizen.
• Children born overseas with one
Australian citizen parent may apply
(registration of descent)
• A permanent resident child who is
adopted acquires Australian
citizenship

17. VIDEOTEST

18. • 1.Registration and
Citizenship
• Births, Deaths and Marriages
Registration Act 1995
(NSW)
• 7 days after birth to give
notice and 60 days to
complete registration – giving
the child a legal name
STATE CIVIL LAW AND
CHILDREN (NSW)

19. • 2.Education
• Compulsory age of
6-17 to attend school
Education Act 1990
(NSW)
• Children have the
right to be educated
• Internationally
recognised UDHR
1948, article 26

20. • 3. Work
• There is no legal age limit for
young workers
• If under 15 they must
receive authorisation
• High levels of age
discrimination occurs for
children

21. • 4. Medical Treatment
• Marion’s case – sufficient
maturity to understand medical
procedures, medical decisions
can be made
• Parents are responsible for
proper medical care even with
religious objections
• Court can override refusal to
medical treatment if it’s in the
child’s best interest

22. • 5.Discrimination
• Anti-discrimination Act
1977 (NSW) on the
basis of sex, race,
sexuality and age.
• There are some
exceptions to this act
such as insurance

23. • 6.Contracts
• People under 18 are
generally not bound by
contracts.
• Parent/guardian acts as a
guarantor to the
contracts when signed

24. HOW EFFECTIVE HASTHE
LAW BEEN IN IMPROVINGTHE
RIGHTS OF CHILDREN AND
YOUNG PEOPLE
Essay PracticeTime
adrian.shipp1@det.nsw.edu.au

25. REVISION: WHAT IS
CRIMINAL LAW?
• Presumption of Innocence –
the accused is innocent until
proven guilty
• Burden of Proof - Crown
prosecution
• Standard of proof – prove guilt
beyond reasonable doubt
• Based on the adversary system

26. • Children (criminal Proceedings)
Act 1987 (NSW)
• section 5: principle of doli
incapax
• Detention is a last resort for a
juvenile offender in all states and
territories
• different range of criminal
sanctions will be used compared
to adults
NSW CHILDREN CRIME
LEGISLATION

27. REIBY JUVENILE CENTRE

29. • Young Offenders Act 1997
(NSW)
• diversionary measures for
young offenders as
alternatives to court
appearances
• Children should be informed
to seek legal advice
• the least restrictive sanction
should be used
• 3Tiered system - Warnings,
Cautions andYouth Justice
Conferences

30. YOUTH CRIME

32. • Amended s.22A that prevents a defendant from making an
additional application for bail unless there are unique
circumstances
• Increase number of people on remand, harsh effect on juvenile
offenders and Indigenous Australians
The Bail Amendment Act 2007 (Bail Act
1978) and Young Offenders

36. • Sanctions
• penalties imposed on those
who break the law, usually in
the form of a fine or
punishment
• Youth Justice Conference
• measure to divert young
offenders from the court
system through a conference
that addresses the offender’s
behaviour in a more holistic
manner
Important Definitions

37. YOUTH JUSTICE CONFERENCING

38. • Role of United Nations
• Convention on the Rights of the
Child (CROC) 1989
• Main piece of legislation that
shapes international rights for
children
• Australia has ratified this legislation
into our domestic law
LEGAL RESPONSES FOR PROTECTING THE
RIGHTS OF CHILDREN

39. EFFECTIVENESS OF CROC
• UN committee reports on
countries as to whether they
are complying
• UN Committee has no
coercive power to force
countries to comply

40. ROLE OF
PARLIAMENT
AND COURTS
• Ratified International law
in domestic system
• Enacted many laws to
protect children
• Placed responsibility on
adults to ensure children
welfare

41. •statutory body set up in 1998
•monitors ‘working with children check’ as outlined
in the Children andYoung Persons (Care and
Protection) Act 1998 (NSW)
1. NSW Commission for Children and Young
People

42. •7 specialists courts in NSW
•Two roles - dealing withYoung Offenders and
children referred to them by the Department
Family and Community Services (FACS)
2. Children’s Courts
Click here

43. •care and protection of children
•facilitates accommodation, child care and adoption
services. Increase access to services
3. FACS

44. •Represents children from welfare proceedings in
the Children’s Court to family law matters in the
Family Court.
•Also aids young offenders in criminal matters
4. Legal Aid

45. •Tackles children’s matter with an impartial view
•Investigates ‘reviewable child deaths’
•In 2007, 601 children died in NSW, and 156 of
those deaths (25.9%) were reviewable.
5. NSW Ombudsmen

46. • As children do not vote, their voices sometimes cannot be
heard. However they can be a part of a political party
• Non-Legal mechanism for children can be quite effective in
resolving disputes and improving individual rights. Examples
include Churches,Youth Centres
NON-LEGAL RESPONSES
NGO’s

47. • Australian Council ofTrade
Unions (ACTU) negotiates:
• Employment contracts
• Apprenticeships and training
• Pay conditions
• Health and safety issues
1.Trade Unions

48. • Children that are in crisis can
seek help
• 24-hour free telephone and
online counselling
• Caters for children from
disadvantaged groups
2. Kids Helpline

49. `• Very effective in raising awareness to issues involving children.
Areas such as child abuse, FACS failures and exploitation have
raised.
• The rise of social networking and the internet has allowed
young people to access their rights
The Media

50. EFFECTIVENESS OFTHE LAW
• As children get older they are more likely to take risks, at the
same time adults may abuse and exploit them
• In order to achieve justice, the law must take both into
consideration

51. Response Effective Ineffective
Young Offender’s Act
1997
• Diverting young people
from the courts and
enshrines international law
• Youth Justice Conferencing
does not lower youth
crime
Children (Care and
Protection) Act 1998
• Monitors the duty of care
of professionals dealing
with children.
• Access to FACS
• The efficiency of FACS to
deal with serious cases
remains slow and
underfunded
CROC 1989
• High compliance of nations
• Outlines universal rights,
well protected in Australia
• Issues of political will
• Children remain in
detention
NGO’s/Lobby Groups
• Apply pressure and hold
Govt to account.
• Raise awareness of
Children issues
• Are not part of the
legislative process
• Ongoing need to be
funded
Media
• Identity of children
protected. Pseudonym
• Can apply pressure for
reform of the law
• Level of bias as most
media outlets strive for
profit
• “Emotion Fatigue”

52. • Attitudes towards police remains a
constant issue
• Seen and heard inquiry 1997
shows:
• 78% of 843 CYP said that
police rarely treat them with
sufficient respect
• improvements for policing to
be more connected with
CROC
1. Criminal Justice System

53. • High rates of ‘arrest to
investigate’ among young
indigenous males
• Article 37 of CROC states that
arrest should be a ‘last resort’
• Further improvement of
individual rights accessing legal
representation for CYP
• Police informing accused rights
from a NESB
Arrest and Police Interview

54. DIVERSIONARY PROGRAMS

55. • Seen and heard report 1997
• Best chance for CYP to rehabilitate and reintegrate back into
society
• Detention and other harsh sentencing is ineffective to young
people (recidivism rates)
• Children(Criminal Proceedings) Act 1987 (NSW) should take
into account special issues regarding children e.g homelessness,
family circumstances
Sentencing ofYoung Offenders

56. • Australia has been a strong supporter of CROC from the very
outset
• there are still areas where Australia can do better
• adequacy of programs and services for children’s health,
education and welfare
• the adequacy of legislation in addressing the needs of
children
Australia’s Obligation of Convention Rights of the Child
2. International Issues