ANNEXURE 3 Arrangements for Territory of Cocos (Keeling) Islands, Territory of Christmas Island and Norfolk Island xxix
A. General measures of implementation
Article 4
States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognised in the present Convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international co-operation.
Article 42
States Parties undertake to make the principles and provisions of the Convention widely known, by appropriate and active means, to adults and children alike.
Article 44(6)
States Parties shall make their reports widely available to the public in their own countries.
(a) The measures taken to harmonise national law and policy with the provisions of the Convention
Background
1. Successive Australian Governments have acknowledged the rights of children as fundamental human rights. In 1981 this acknowledgment was made through the inclusion of the UN Declaration on the Rights of the Child 1959 as a Schedule to the Human Rights Commission Act 1981. In 1986 this acknowledgment was re-affirmed by the inclusion of the Declaration as a Schedule to the legislation which replaced the 1981 Act, the Human Rights and Equal Opportunity Commission Act 1986.
2. Australia played an active role in the development of the UN Convention on the Rights of the Child which came into force internationally on 2 September 1990. Throughout the drafting stages of the Convention (which took 10 years) the Federal Government consulted the State and Territory Governments. State Government representatives also participated in the Australian delegations to the UN Working Group which drafted the Convention. Following further consultations with State and Territory Governments, the Convention was ratified by Australia on 17 December 1990 and entered into force for Australia on 16 January 1991.
3. In announcing Australias ratification of the Convention, the Minister for Foreign Affairs and Trade, Senator Gareth Evans, and the then Attorney-General, Michael Duffy, said that this step represented an important new development in the protection of the rights of children and indicates the concern of the Australian Government to assist to the greatest extent possible in the improvement of human rights throughout the world.
4. On 22 December 1992 the Attorney-General declared that the Convention on the Rights of the Child would be made an international instrument for the purposes of the Human Rights and Equal Opportunity Commission Act 1986, thus enabling the Commission to conciliate complaints about acts or practices of the Federal Government which breach the rights in the Convention. This declaration took effect on 13 January 1993.
5. In addition to the rights provided under the Human Rights and Equal Opportunity Commission Act 1986, the provisions of the Convention are implemented by a wide range of Federal, State and Territory legislation, policies and programs which affect children. This includes legislation, policies and programs in the areas of family law, social security, health and community services, education, employment, culture and criminal and juvenile justice.
6. Australia does not propose to implement the Convention on the Rights of the Child by enacting the Convention as domestic law. The general approach taken in Australia to human rights and other conventions is to ensure that domestic legislation, policies and practice comply with the convention prior to ratification. In the case of the Convention on the Rights of the Child a complaints mechanism also exists pursuant to the Human Rights and Equal Opportunity Commission Act 1986 referred to above.
7. In the Core Document for Australia, the Australian general political structure is described as a Federal system in which legislative, executive and judicial powers are shared or distributed between the various Federal institutions, the six States and two internal self-governing Territories. In this report the responsibilities of the States, internal Territories and Federal Government will be covered. Whilst this report has been compiled by the Federal Government, the Federal Government has been reliant on the States to provide information in relation to areas of State responsibility.
8. The Federal Government administers various external territories. Those inhabited are the Territory of Cocos (Keeling) Islands and the Territory of Christmas Islands. The Federal Government retains a power of veto over some areas of legislation for Norfolk Island, which is administered under the Norfolk Island Act 1979 (for further information see Annex 3). In this report a reference to the States and Territories excludes a reference to the Territory of Cocos (Keeling) Islands, the Territory of Christmas Islands and Norfolk Island, unless a specific reference is made to them.
9. The approach taken in this report is to provide information concerning legislation, policies and programs in relation to areas affecting the rights of the child. As this is Australia's initial report this information is given in some detail. In later reports Australia may produce a less comprehensive report with greater analysis of issues.
10. In May 1995 in the Justice Statement the Federal Government announced that it would establish a regular Forum for non-government organisations to discuss human rights concerns with the Federal Government. The Forum will include the discussion of children's issues.
11. In relation to the reporting process under the Convention, the Forum will assist a process of greater consultation with non-government organisations in the period leading up to the examination of this report before the Committee on the Rights of the Child. At the examination Australia will present reports prepared by non-government organisations. Australia sees the preparation of this report as part of a cyclical process involving the preparation of the report, its submission to the Committee, the tabling of the report in Federal Parliament, consultations with non-government organisations, its examination by the Committee, the tabling of the Committees record of the reports examination in Federal Parliament and discussion regarding the same with Australian Governments.
Achievements to date
12. In the period since ratification of the Convention, Australia has taken a number of important steps to ensure the rights set down in it. A discussion of major initiatives follows.
Agenda for Families
13. The Agenda for Families was developed during the International Year of the Family and announced in May 1995 in the 1995-96 Federal budget.
14. The Agenda includes a new means-tested maternity allowance of $816 which will be introduced from 1 February 1996. The allowance will provide a vital boost to family income when it is most needed: at the birth of a baby. About 85 per cent of women will be eligible for the payment which will be available to women both at home and in paid employment.
15. The Government is committed, through the ACCORD VIII, to reviewing the allowance over the next four years and improving it as economic and budgetary circumstances permit.
16. Other measures announced in the budget to assist families included:
increases in existing social security payments, specifically, the Guardians Allowance paid to sole parent pensioners and rental assistance for families with children;
additional child care places, specifically in Family Day Care, Outside School Hours Care and services in rural and remote areas;
programs to increase immunisation rates of children and to reduce the consumption of tobacco, particularly among young people;
measures to help families to avoid legal problems and deal with disputes (see Access to Justice, below); and
additional expenditure to improve the standard of health of Aboriginal and Torres Strait Islander peoples (see Aboriginal and Torres Strait Islander issues, below).
Child care
17. Since 1983 the number of Government-funded child care places has increased more than five times and will continue to grow. The Federal Government has made a commitment to fully meet work related demand for child care on a target of 354,000 places by the year 2000-01, through the implementation of the expanded National Child Care Strategy, the New Growth Strategy to 2000-01 and incentives to encourage the involvement of employers and the private sector. Recent moves to provide additional child care places are mentioned under Agenda for Families, above. Efforts have been made to ensure that child care is affordable through the availability of Child Care Assistance, a means tested payment to help low and middle income families with the cost of their child care in Federally funded services, and a new Childcare Cash Rebate for all working parents, paid on the basis that child care is a necessary cost of earning a living.
18. In August 1994 the Australian Law Reform Commission issued Child Care for Kids, the report of its review of childrens services legislation. Main recommendations were as follows:
Federal child care legislation should establish key principles for federally funded childrens services - accessibility, affordability and equity;
the legislation should provide that the welfare of the child for whom child care is being or will be provided is to be the paramount consideration in any decision or action taken under and for the purposes of the legislation; and
the legislation should set out priorities for the program (the major priority is to provide child care for children of working parents but children identified in the governments social justice strategy, such as Aboriginal and Torres Strait Islander children, children from non-English speaking backgrounds and children with a disability, should also have priority).
19. The report, which is currently being examined by the Government in the context of the Council of Australian Governments (COAG) review of Child Care, will enable the Government to build on its already considerable achievements in the provision of childrens services.
Social security
20. In Australia there are many programs which maintain and improve the welfare of children and young people. For example, the Basic Family Payment is a general payment to families with children, in recognition of the costs of raising children. Additional Family Payment is provided for low-income families. Family Payment is directed to the primary carer who, in practice, is usually the mother. Family Payments are untaxed and increase in line with the Consumer Price Index each year. Children are also the indirect beneficiaries of payments made to their parents or carers through the social security system, such as unemployment allowances or the Sole Parent Pension.
21. The Government has established benchmarks of adequacy for Family Payment which have been achieved and maintained since July 1990. These benchmarks are defined as the sum of Basic and Additional Family Payment as a proportion of the combined married rate of pensions and benefits. When introduced, the benchmarks were set at 15 per cent for children under 13 years and 20 per cent for children aged 13 to 15 years. In January 1995, these were increased to 16.6 per cent and 21.6 per cent respectively.
22. The Federal Governments reforms to family payments have been of considerable benefit to families with young children. Since 1983 the Government has increased child payments to low-income families by 83 per cent for children under 13, and 157 per cent for children aged 13 to 15.
23. The Parenting Allowance was introduced from 1 July 1995 in order to provide an independent source of income of up to $272 per fortnight for families, especially low income families where one of the partners is at home looking after children. It recognises the important role that the care of children has in the Australian community by providing a payment that does not depend on the recipient seeking employment. In this way, Parenting Allowance better enables low income families to choose whether one or both partners enters the workforce. At the same time, a lower rate of Parenting Allowance (currently provided as Home Child Care Allowance) may still be payable to higher income families where the person with day to day childraising responsibilities has little personal income.
The Child Support Scheme
24. The Child Support Scheme was introduced in the late 1980s with the objective of improving the welfare of children of separated parents. This scheme arose mainly out of concern to reduce poverty among sole-parent families by ensuring that both parents contribute to the costs of their children in accordance with their capacity to pay. Since the establishment of the scheme there has been a significant improvement in the maintenance of children. For example:
75 per cent of liabilities registered with the Child Support Agency (which is located in the Australian Taxation Office) are currently being collected; and
as at April 1994 the average value of a formula assessment was $51.31 per child per week compared with $43.75 per week for a court assessment.
25. The scheme has been a success, with one of its most successful aspects being the shift in community attitude which it has engineered through enforcing the collection of child support, thereby ensuring parents take responsibility for the support of their children. Another successful feature of the scheme is the right of parents, once the level of liability has been established under the formula, to collect child support privately, without necessitating collection by the Agency.
Health
26. Most young Australians take advantage of the free medical and hospital care offered through Medicare. The Federal Government has also developed policies to deal with health issues that particularly concern young people:
the Government recently announced a $13 million package to curb the rate of youth suicide;
the first priority of Health Australia, an $18 million, three-year program announced in the 1995 Budget, is to reduce the deadly impact of tobacco, especially on young people; and
the Federal Government is acknowledged as a world leader for its National HIV/AIDS Strategy. Australia has been very successful in containing the spread of HIV/AIDS.
Responses to homelessness
27. Efforts have also been made to address the serious problems faced by homeless young people which were identified in the report of the Human Rights and Equal Opportunity Commission, Our Homeless Children, in 1989. This has mainly been achieved through the Youth Social Justice Strategy, a comprehensive package of initiatives for disadvantaged young people. Of particular importance has been the Supported Accommodation Assistance Program (SAAP), a joint Federal-State program which funds crisis accommodation, a range of other accommodation options and related support services for homeless young people. SAAP currently funds about 1,600 services which accommodate between 11,000 and 12,000 people each night. SAAP is supplemented by the Crisis Accommodation Program (CAP). CAP is a Federally-funded capital grants program which enables the purchase or upgrading of properties for use by SAAP service providers.
28. The SAAP legislation and agreements preclude the funding of services exclusively for young people under school leaving age. However, no one in crisis is turned away from a SAAP service because of their age, and individuals under school leaving age may be given temporary accommodation and support through SAAP and assistance to access more appropriate services.
29. A related initiative is Health Services for Homeless Youth which funds organisations to develop and provide innovative health services for at risk and homeless youth. In 1993-94 program activities involved around 30,000 client contacts, a range of education/preventive projects and training programs for health workers. The program is cost-shared with State and Territory Governments.
30. The Federal Government has been working with State and Territory Governments to improve the links between the various income and other support services provided for homeless young people. A Federal, State and Territory Protocol case management program for unsupported homeless young people has been developed to improve coordination of income support (a Federal responsibility) with a full assessment of protective care needs (a State responsibility). Under the Youth Protocol, homeless young people are referred to the State or Territory department of family or community services to receive careful assessment of their needs and other support in a coordinated manner. The majority of young people assisted by this process are under 15 years of age.
31. Homeless young people have very diverse needs which are exacerbated by the duration and nature of their homelessness. As a result, the Federal Government announced in the 1994-95 Budget that 33 Community Services Officers (CSOs) were to be established in 21 locations nationally. The objectives of the CSOs are to:
provide Department of Social Security services to homeless clients of all ages, and those at risk of homelessness, in order to improve their access to and maintenance of income support;
reduce the incidence of inadequate or inappropriate payment of income support to clients who have difficulty in accessing or negotiating entitlements via existing Department of Social Security (DSS) service delivery methods; and
perform outreach functions to community agencies which service homeless and at risk people.
32. As part of the Federal Government's commitment to improving services to young people, 10 Youth Service Units (YSUs) were established throughout Australia in 1994. The primary role of YSUs is to provide young people under 18 years of age with a selected range of services available from the Department of Social Security (DSS) in a manner that young people find approachable, and outreach to locations where young people congregate. YSU staff offer a specialist case management service for those young people, in particular the homeless, who require a more intensive level of assistance.
33. In the 1995 Budget, additional resources were also provided to enable DSS social workers to follow up all those granted income support at the homeless rate, to explore possibilities for family reconciliation and to address needs for support.
34. The Report on Aspects of Youth Homelessness by the House of Representatives Standing Committee on Community Affairs was tabled on 5 June 1995. The Federal Governments response was tabled on 30 November 1995. The Government has welcomed the report as a wide ranging consideration of youth homelessness. Key elements of the Governments response were the general endorsement of the reports emphasis on improving coordination of youth services and on early intervention, particularly through schools, before young people become homeless.
Education, training and employment
35. There has been a near doubling of school retention rates in the last decade. In 1994, 75 per cent of school starters completed the final year of schooling in comparision with 36 per cent in 1982. The Federal Government assists Australias schools in various ways. It contributes more than $3 billion annually to this end.
36. However, in Australia around 14 per cent of children drop out of school early without going on to further education and training. The Federal Government, concerned about the linkage between lack of education and disadvantage later in life, in 1994 embarked on a process of reform of vocational training in Australia known as the Australian Vocational Training System (AVTS). The Federal Government has doubled spending on vocational education and training since 1990: from $344 million to $780 million. The objective is that by the year 2001, 95 per cent of 19 year olds will have completed Year 12 or an initial post school qualification, or be participating in formally recognised education and training.
37. The Federal Government has a system of income support to ensure equal educational opportunities for students in need. These include AUSTUDY, ABSTUDY and the Assistance for Isolated Children schemes. More than half a million students now receive income support - a fivefold increase from 1983. Children are also financial beneficiaries when their parent (or parents) are able to enter the paid workforce. The Jobs, Education and Training Program (JET), established in 1989, was a major initiative which provides assistance to sole parents to enter or re-enter the workforce by providing work-oriented counselling and training schemes, as well as child care to facilitate access to these services. In 1993-94, 92 per cent of the JET clients who sought assistance with child care were found a child care place.
38. The AVTS is a program of both Federal and State Governments. This system has a number of elements including the agreement of States and Territories to integrate vocational education in the secondary curriculum and expand the number of entry level training places. The Federal Government and States and Territories also agreed to establish the Australian National Training Authority in 1992. A further program is the Youth Training Initiative (YTI) which assists unemployed 15 to 17 year olds, especially early school leavers. It involves intensive individual case management, access to all labour market, vocational training programs and the Youth Training Allowance, which provides income support for young people in approved education, training or job search activities. The Federal Government has allocated $660 million over four years to the YTI.
39. In 1995, the Federal Government, in its job pathway guarantee program, allocated $15.5 million over three years to fund brokers to guarantee traineeships and jobs in local industry for students who successfully complete their vocational studies in the final two years of high school. This program will assist young people in obtaining their first job and create greater links between secondary schools and local industry in the creation of post school employment placement options for students. The job pathway guarantee program is part of Working Nation, a $9 billion program introduced in May 1994.
40. The National Training Wage has been introduced to boost the level of training and work opportunities available. The Federal Government has also expanded the number and variety of traineeships to make them more relevant and attractive to young people. In 1994 apprenticeships and trainee commencements as a proportion of the 15 to 19 year old population were higher than that achieved in any of the previous three decades.
41. One of the Federal Governments most successful training programs has been the Landcare, Environment and Action Program. More than 30,000 unemployed 15 to 20 year olds have been provided with formal training and practical experience on projects of environmental or cultural significance.
42. The Government has established Youth Access Centres (YACs) in more than a hundred locations across Australia. Several mobile YACs operate from four-wheel drive vehicles, caravans and small vans in rural and remote areas. YACs provide information and advice to young people, primarily on employment and education issues, but also on money, accommodation, legal assistance and health problems.
43. The number of 15 to 19 year olds looking for full-time work has fallen from 158,000 in 1983 to 91,400 in September 1995.
44. The Federal Government is committed to expenditure on higher education and spending will reach $16.5 billion over the period 1996 to 1998. The number of students in higher education has grown rapidly from 34,000 in 1982 to over 600,000 in 1995.
45. Finally, in December 1994 a Civics Expert Group established by the Prime Minister described an urgent need for a civics and citizen education program. As a result the Federal Government has committed $25 million over four years to the development of high quality teaching resources and to increase the interest and participation of young people in Australian history and democracy.
Communication
46. The Federal Government is determined to ensure that Australian young people exploit the opportunities offered by the information super highway. In order to give Australian students access to the new technologies the Federal Government has invested initial funding of $1.5 million for the development of the Education Network Australia (EdNA). EdNA will electronically link schools, Technical and Further Education (TAFE) colleges, universities and other education and training providers across Australian and the world.
47. Over recent years, the Federal Government has established Triple J as the national youth radio network. During 1995-96, the Government will extend Triple Js coverage to a further 25 regions across the continent.
Aboriginal and Torres Strait Islander children
48. Disparity in the level of enjoyment of rights by Aboriginal and Torres Strait Islander children compared to other children is an issue of major concern to Federal and State Governments. A number of initiatives have been taken to address this concern.
49. Of particular importance, in view of concern about the high mortality rates of Aboriginal children, have been Federal and State initiatives in areas relating to the health of women and babies. A wide range of programs has been developed in health and related areas. This has included programs under the National Food and Nutrition Policy, the National Womens Health Program, initiatives in relation to breastfeeding, family planning and birthing services, immunisation programs and strategies to improve water quality, sanitation and housing. Substantially increased funding for Aboriginal and Torres Strait Islander primary health care and environmental health initiatives has also been made available through the 1994-95 and 1995-96 Federal Budgets. This funding will assist in improving indigenous peoples access to the range of primary health care and environmental health services mentioned above, including services which assist indigenous children. The 1994-95 budget allocated $449.4 million over five years for this purpose.
50. Under past assimilationist policies many Aboriginal children were forcibly removed from their families. The Federal Government announced in May 1995 that it had requested the Human Rights and Equal Opportunity Commission to conduct an inquiry into:
the past laws, policies and practices that resulted in the compulsory separation of Aboriginal and Torres Strait Islander children from their families and the effect of those laws, practices and policies;
the need for any changes in current laws or practices available to Aboriginal and Torres Strait Islanders who were affected by compulsory separation to further the relocation or reunification of families;
the principles relevant to determining the justification for compensation for persons affected by such separations; and
the current laws and practices with respect to the placement and care of Aboriginal and Torres Strait Islander children.
51. The inquiry is now underway and will report to the Attorney-General by December 1996.
52. The Federal Government recognises that language is an essential part of a persons identity and is of critical importance in the transmission of culture. The question of the maintenance and preservation of Aboriginal languages was examined comprehensively in 1992 by the House of Representatives Standing Committee on Aboriginal and Islander Affairs in its report Language and Culture - A Matter of Survival. In response to that inquiry the Government funded the Aboriginal Languages Initiatives Program which was introduced as part of the Australian Languages and Literacy Policy 1992.
53. The Training for Aborigines and Torres Strait Islanders Program provides employment assistance to young Aborigines and Torres Strait Islanders. The Federal Government has increased the number of places allocated specifically to Aboriginal and Torres Strait Islander people in mainstream labour market programs to 26,000 places in 1995-96.
54. In order to increase the participation rates of young Aborigines and Torres Strait Islanders in education and training, the Aboriginal Education Program was established in 1990. Under this program, the Federal Government provides supplementary tutorial assistance, and allows schools to offer Homework Centres to students who do not have adequate study centre areas at home. The Federal Government also funds school based committees of parents to run projects which encourage young Aborigines and Torres Strait Islanders to remain in school and participate in education.
Implementation of the Federal Government Responses to the Recommendations of the Royal Commission into Aboriginal Deaths in Custody
54. The loss of many young lives in custody was one of the most tragic aspects of the Royal Commissions investigations. The Federal Government has responded to the Royal Commissions recommendations in a variety of ways such as action to prevent and counter alcohol and substance abuse. Young Aborigines and Torres Strait Islanders will share many of the overall benefits arising from these responses. There have been other aspects of that response which specifically targeted the needs of young people. These included funding for:
supervised Youth Bail Hostels as an alternative to police custody ($7 million);
a Young Persons Employment Program to provide work placements within Aboriginal organisations and linked to TAFE training ($22 million);
a Young Peoples Development Program to encourage planned community action to meet youth needs, through such measures as employment of community youth workers, cultural education by elders, and assistance to young people to move from detention or institutions back into the community ($23 million);
an Aboriginal Youth Sport and Recreation program ($9 million); and
additional Aboriginal Education Workers in schools ($20 million).
Aboriginal Justice Advisory Committee
55. The Federal Government announced in May 1995 the establishment of a National Aboriginal Justice Advisory Committee. The Committee will provide a mechanism for representatives of State and Territory Aboriginal Justice Advisory Committees to meet in a regular national forum. These Committees were formed as part of the implementation of the Royal Commission into Aboriginal Deaths in Custody recommendations. The role of these committees is to provide Governments with independent advice on Aboriginal perceptions of criminal justice matters and on the implementation of the recommendations of the Royal Commission.
56. Young Aborigines and Torres Strait Islanders have been identified as a priority group under the Federal Governments Youth Social Justice Strategy, which aims to provide a coordinated approach to the needs of disadvantaged young Australians generally. As an example of the significance to indigenous people of programs conducted under the Strategy, Aboriginal and Torres Strait Islander young people comprised 18 per cent of those assisted by Youth Access Centres during 1993.
Young people with a disability
57. During 1993-94 the first stage commenced in the development of an information package for young people with a disability, and parents and carers of children with a disability. The objective is to provide a Families Kit containing information on all Federally funded programs and services which are available to assist these groups to enter or re-enter the workforce.
58. Young people with a disability who are making the transition from school to work were a priority group for access to 4,000 new employment places established between 1991-94 under the Disability Reform Package.
59. In January 1994 the Jobnet pilot program commenced. The program is designed to test mechanisms for providing work skills for young people with an intellectual disability. There are 15 Jobnet outlets around Australia. The program has a target of 1,200 clients by 20 June 1995.
60. Increased funding for disability programs was announced in the 1995-96 Federal budget, enabling an expansion in employment opportunities, including a two-year pilot program for 500 people with severe disabilities who require a more intensive and flexible service, and in hearing services.
Responses to mental illness
61. Mental illness was identified as a major but largely unrecognised problem among children and young people in the report Human Rights and Mental Illness released by the Human Rights and Equal Opportunity Commission in 1993. In response to one of the major problems identified in the report - youth suicide - it was announced in the 1995-96 Federal Budget that an additional $7 million would be provided over four years to urgently reduce the high levels of suicide among young people. This is additional to $6 million earmarked from the National Mental Health Strategy funding for the same purpose. The funding will be used to investigate the causes behind youth suicide, establish suicide awareness programs and train health professionals, particularly in rural and remote areas.
62. State and Territory initiatives will also be significant in addressing the problems faced by children with mental illness.
Child abuse and neglect
63. Agreement has been reached by the Federal, State and Territory Governments to implement and fund the National Prevention Strategy for Child Abuse and Neglect. Funding of $12 million over four years was announced in the 1994-95 Federal Budget to implement the Commonwealth aspects of the Strategy. State and Territory Governments are also contributing funding to the implementation of the Strategy.
Legal issues and law reform
64. The Crimes (Child Sex Tourism) Amendment Act 1994 came into effect on
5 July 1994. This legislation was enacted in response to the recommendations of the United Nations Special Rapporteur of the Program for the Prevention of the Sale of Children. The legislation creates criminal offences dealing with:
sexual relations between adults and children, applying to Australian nationals or residents overseas; and
associated paedophile activities within Australia such as the organisation and promotion of child sex tourism.
65. The Federal Government has introduced amendments to the Family Law legislation to direct the focus to the rights of the child. The existing concepts of custody and access are to be replaced by provisions which give parents parental responsibility, defined as the duties, powers, responsibilities and authority which by law parents and guardians have in relation to children. The concept of custody has carried with it notions of ownership of children and, in some cases, has tended to lead to the belief that the child is a possession of the parent who is granted custody. The proposed amendments emphasise that children have the right to know, and be cared for by both parents and that parents share the duties and responsibilities concerning the care, welfare and development of the child.
66. In recognition of Australias obligations to protect children in their dealings with the justice system the Federal Attorney-General has announced that the Federal Government will make a reference to the Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission to examine and report on children and young people and the legal process. In particular the Commissions are to inquire and report on:
legal advice and access for children and young people and their legal representation before courts and tribunals in the exercise of Federal jurisdiction;
the appropriateness of procedures for pre-trial investigation and taking of evidence from children and young people;
the appropriateness of rules of evidence for, and procedures for taking evidence in courts and tribunals from children and young people;
the question of the desirability of children giving evidence in family law and associated proceedings and the appropriate safeguards in such circumstances;
sentencing of children and young people for Federal offences;
the treatment of children and young people convicted of Federal offences;
advocacy of the interests of children and young people before courts and tribunals;
the appropriateness and effectiveness of the legal process in protecting children and young people as consumers;
the particular needs in these and related areas of children and young people for whom the Federal Government has a special responsibility; and
any related matters of particular relevance to Australia's remote communities.
67. Among the matters to which the Commissions are to have regard in performing their functions are the Federal Government's special responsibilities for children arising under the Constitution and Australias international human rights obligations, particularly under the Convention on the Rights of the Child. Consultations will be held with the Australian community and relevant bodies.
68. The Federal Government is continuing to implement ILO Convention 156 Workers with Family Responsibilities. The Sex Discrimination Act 1984 already prohibits discrimination on the ground of family responsibilities in relation to termination of employment. The current definition of family responsibilities includes dependent child - a child who is wholly or substantially dependent on the employee.
Access to justice
69. The Prime Minister launched the Federal Governments Justice Statement in May 1995. The Statement makes a strong commitment to the importance of families in Australian society. Currently the Government commits over $21 million every year to more than 60 community-based family support organisations. Around 150,000 clients are assisted annually through marriage/relationship counselling and education, skills training for family relationships and mediation within families facing difficulties, particularly to assist with adolescent crises. Among the new or expanded initiatives announced in the Statement were the following:
family skills training programs for parents using these Centres;
funding for specialist workers in childrens and youth law to assist community legal centres to meet the demand for advice and advocacy for children and young people;
increased funding for marriage and relationship preparation and measures to extend access to a range of family support services, particularly for people in regional and rural areas and for people of non-English speaking backgrounds;
increased family mediation and Family Court counselling services;
a national handover pilot program, Handover and Visiting Centres, for safe transfer of children between separated parents where there is a background of conflict or the risk of abduction, violence or other abuse;
a research project to examine the level of unmet demand for court interpreters by people of non-English speaking backgrounds and develop strategies for increasing access to interpreting services;
a national pilot program of specialist training courses for ethnic language interpreters in the legal system;
programs to train court interpreters in Aboriginal languages;
professional development programs to assist judges, tribunal members and court staff in working with interpreters; and
an expanded network of womens legal centres to ensure that the needs of women, and indirectly children, are met in every State and Territory.
70. Children will also be assisted in the exercise of their rights through the establishment of a Discrimination and Human Rights Law Centre. The Centre will service a wide range of clients across a variety of areas of discrimination and human rights law.
71. Australia has also played a leading role in the development of an Optional Protocol to the Convention on the Rights of the Child, aimed at strengthening mechanisms to help combat child prostitution and other forms of abuse and exploitation. Australia has also been active in promoting the development of the Optional Protocol at various international meetings.
Refugee minors without parents in Australia
72. Under the Immigration (Guardianship of Children) Act 1946 the Minister for Immigration and Ethnic Affairs is the legal guardian of children who enter Australia with no close family relatives in Australia, that is, who are unattached refugee minors. The Minister has delegated his or her powers under the Act to the senior State officials responsible for child welfare. Federal-State cost-sharing arrangements operate on a dollar-for-dollar basis with participating States. State child welfare workers provide counselling and settlement support to all unaccompanied minors and their caregivers to prevent breakdown in care arrangements - until the minors reach 18 years of age. All refugee minors without parents in Australia are so covered.
73. A national review of the program, a program that has now been in place for some 10 years, was completed in 1994. The number of minors had declined steadily over recent years, a trend thought likely to continue. The view had been that numbers could reach a level where cost-sharing was no longer viable in smaller States. The recommendations of the review, which were all adopted, are expected to strengthen the care environment of these minors and to enhance the scheme's continuing viability in smaller States. Federal Government payments to States were enhanced to an agreed ratio of one case worker to 25 minors (previously one case worker to 45 minors). Entitlement per worker equates to 50 per cent of salary plus one third of salary-related on-costs.
74. Recognising that unaccompanied refugee minors could be regarded as among the most vulnerable children in Australia, the review specifically took note of the Convention on the Rights of the Child. Implementation of the Reviews recommendations, which is currently occurring, will ensure that these minors are not disadvantaged with respect to other residents in comparable circumstances.
State and Territory initiatives
75. In all States and Territories all relevant Government agencies received copies of the Convention and have examined the implications of the Convention for their legislation, policy and practice.
76. In the Australian Capital Territory, a number of laws have been passed since the signing of the Convention which have helped to bring the Australian Capital Territory into line with the provisions of the Convention or to make its compliance more effective. These laws include amendments to the Childrens Services Act 1986, the Community Advocate Act 1991 (amended in 1994) relating to applications to the courts for Child in Need of Care orders; the Adoption Act 1993; amendments to the Crimes Act 1900 concerning child sexual offences; and liberalising a procedure whereby children may give evidence in court via closed circuit television.
77. The New South Wales Department of Community Services undertook an examination of some current statutes which established that New South Wales law is broadly in line with the Convention.
78. Since 1994, a Northern Territory wide conference is held annually to raise issues regarding the operation of the juvenile justice system and other matters relevant to juveniles. There is Government and community participation in the workshops, including representatives from the Departments of Law, Education, Police, Health and Community Services and Family Youth and Children's Services. A working group is established after each conference to examine the implementation of the recommendations that come from the conference to ensure that the Government is responsive to current issues relating to children in the Territory.
79. In 1989 there was an examination of current statutes by the Queensland Attorney-Generals Department which established that present law in Queensland was also broadly in line with the Convention. A State Youth Conference was held in December 1990. Attended by over 280 workers from Government and non-Government organisations, it was the most significant conference of its kind in Queensland for many years. The Queensland Government has also developed a Youth policy.
80. In November 1990 the South Australian Health Commission endorsed a policy statement on Child Health. The policy goals and principles are derived directly from the Convention. A Childrens Interests Bureau has been set up by the South Australian Government to look after and monitor childrens interests in the State.
81. In Tasmania child welfare and juvenile justice were reviewed using the Convention as a framework. As a result of the review, legislation is being drafted to update laws in the light of the Convention and relevant Commonwealth Legislation. The proposed legislation will be made available for public comment.
82. All relevant Victorian Government departments have examined the implications of the Convention for their legislation, policy and practice. Regular monitoring of program performance is undertaken by each department. Departments have contacted key non-Government agencies and advisory bodies with which they work closely and made them aware of the Convention. Those organisations include advisory bodies to Government, such as the Victorian Family and Childrens Services Council, the Victorian Ethnic Affairs Commission, the Youth Policy Development Council, local Government and community youth sector agencies, the Brosnan Centre (which provides services to young offenders), and health agencies.
83. In Western Australia between 1988 and 1991 the Department of Community Development conducted a review of the Community Services Act 1972, Child Welfare Act 1947, Adoption of Children Act 1986 and the Welfare and Assistance Act 1961. The Convention on the Rights of the Child was considered, among other things, during that review. In 1994 the Adoption of Children Act 1986 was replaced by the Adoption Act 1994. The Department is currently considering replacing the three remaining Acts with one consolidated statute.
(b) Existing or planned mechanisms for coordinating policies relating to children and for monitoring the implementation of the Convention
84. A wide range of Government bodies have responsibilities relating to children and implementation of the Convention. In the Federal sphere, the Government departments and agencies with major responsibilities for policies and programs relating to children are the Department of Human Services and Health, the Department of Employment, Education and Training, the Department of Social Security and the Aboriginal and Torres Strait Islander Commission. Many others play an important role in their areas of responsibility, be it justice, immigration and ethnic affairs or environment. In the States and Territories, a similarly wide range of Government agencies has an impact on children, but of particular importance are bodies with responsibility for community services, health, education and juvenile justice.
85. The Federal nature of Australias political system requires a considerable degree of cooperation between authorities at all levels (including Local Government Authorities) if consistent and equitable approaches are to be taken to ensuring that the best interests of children are addressed in all areas of Government activity. In 1993 the Australian Youth Policy: A Statement of Principles and Objectives was endorsed by the then State, Territory and Federal Youth Ministers in recognition of the need of a holistic policy framework across government agencies and the community to successfully address the often complex and diverse needs of young people.
86. The National Youth Policy states that the development and implementation of youth policy and programs should be based on the principles of equity, participation and access and sets out national objectives on matters including additional assistance for disadvantaged young people, education, employment, environment, family, health, housing and accommodation, income support, information, justice, sporting, recreational and cultural needs, transport, and vocational education and training.
87. Due to the degree of cooperation required between authorities in Australias Federal system there exists a range of national coordinating and research-oriented bodies which have responsibilities in this area.
Australian Youth Policy Action Coalition (AYPAC)
88. AYPAC is the peak body representing the interests of young people and non-government youth organisations across Australia. It was established in 1991 and replaced the Youth Affairs Council of Australia which was established by the Youth Ministers Council in 1985.
89. The Federal Government provides AYPAC with core funding and this year agreed to a triennial funding basis. In 1995-96 core funding of $338,000 was provided. Additional funding has been provided upon request for particular projects.
90. AYPAC has a national representative board of 17 organisations and an independent chairperson. A structure has been adopted to ensure that each State and Territory is represented. Its objectives include promotion and support programs for the elimination of poverty; to promote cultural, social, economic, political and spiritual interests and participation of young people in all aspects of Australian society especially disadvantaged youth; and to advocate for, assist and support development of policy.
Australian Youth Foundation (AYF)
91. AYF is an important legacy of the Bicentenary. It was established with a grant of $10 million from the Australian Bicentennial Authority as announced by the Prime Minister in 1988. Additional endowments of $2.4 million and a further $1 million for multi-cultural youth projects have been made. The Foundation exists in perpetuity and its endowment is held in trust and must be maintained for future generations also. Income received from the investment of the endowment is used to index the initial fund to maintain its real dollar value; disburse grants; and provide the means whereby funds can be properly managed.
92. The AYF was incorporated as an independent foundation in 1989. It is an autonomous non-government organisation with a charter to assist young Australians who are socially, financially, physically, or intellectually disadvantaged to reach their full potential.
World Declaration on the Survival, Protection and Development of Children
93. Australia ratified the World Declaration on the Survival, Protection and Development of Children in May 1991. The Plan of Action for Implementing the World Declaration committed Australia to the development of a national program of action. In order to develop a program which was relevant in the Australian context, the Federal Government consulted widely with State and Territory Governments, community groups and non-Government organisations. Australias National Program of Action, Our Children, Our Future, was then prepared by the Department of Human Services and Health and was published in 1994. The Program is the first stage in Australias response to the World Declaration.
94. The Program of Action provides a detailed overview of current strategies and initiatives at both Federal and State Government levels and includes health goals and targets in relation to Aboriginal and Torres Strait Islander people, womens health and education, food and nutrition, child health, water and sanitation, basic education, and children in difficult circumstances. The Program of Action draws together the issues and discusses a possible agenda for action for children for the 1990s.
95. Developing the National Program of Action has provided an invaluable opportunity to work across public and private sector boundaries and to develop a comprehensive picture of programs and services for children from a variety of perspectives. This approach has made it clear that not all Australian children in need of help are receiving it. The National Program of Action and the Report on the Convention on the Rights of the Child will provide a basis for continuing consultations between Government and non-government organisations. Efforts will be made in policy development to pursue stronger links between the Convention and the World Declaration which together form Australias two major international commitments to children.
Standing Committee of Attorneys-General
96. The body principally responsible for achieving harmony of Federal, State and Territory laws in relation to the court system and in many broader areas affecting access to justice is the Standing Committee of Attorneys-General (SCAG), which has operated since 1961 and meets several times a year. This body has played an important role, for example in the areas of domestic violence, cross-vesting legislation (which has reduced jurisdictional conflicts between courts), female genital mutilation and child sex tourism legislation. Human rights matters are a standing item on the agenda of SCAG. This provides an opportunity for the State and Federal Government Attorneys-General to discuss issues of compliance with and implementation of obligations arising under the UN Convention on the Rights of the Child.
97. The Access to Justice Advisory Committee, established jointly by the Federal Attorney-General and the Minister for Justice, in its Report of April 1994, considered it important that there should be an adequate mechanism to address the problems created by lack of harmony of laws throughout Australia. The Committee concluded that the best approach in the Australian federation was to endorse the continued role of SCAG, but to encourage it to commit itself more vigorously to the task of harmonisation in areas of particular significance to access to justice.
National Health Policy for Children and Young People
98. The Australian Health Ministers endorsed the National Health Policy for Children and Young People in June 1995.
99. The National Health Policy was prepared by a national working party composed of representatives of the Commonwealth, State and Territory Governments, the National Health and Medical Research Council, the Aboriginal and Torres Strait Islander Commission and consumer groups. As part of the policy development work, consultations were undertaken during 1994 with key stakeholders, service providers, families, young people and childrens advocates in every State and Territory.
100. The National Health Policy sets out principles and key areas for coordinated, national action across the health system to further the policy aim of promoting, maintaining and improving the health of young Australians throughout the development years of childhood, adolescence and later teens.
101. It includes strategies to enhance the awareness in the community and at all levels of government of the health needs of young Australians and for this awareness to be reflected in policies, programs and services that impact on the health of children and young people.
102. An implementation plan is now being drafted by the working party to address the key action areas in the Policy. This plan will be considered by the Australian Health Ministers in the later part of 1995.
National Council of Community Child Health
103. The National Council of Community Child Health was established in November 1993 with representatives of child health managers from each State and Territory. Some of its objectives are to exchange information about services and to develop consistent policies and practices. The Council has supported joint national projects and reviews.
Standing Committee of Social Welfare Administrators
104. A number of State and Territory Government departments are members of the Standing Committee of Social Welfare Administrators which meets biannually and co-ordinates policies relating to children and social welfare. The Standing Committee assists in monitoring the implementation of the Convention. It works towards implementing consistent legislation, policies and practices affecting children.
National Health and Medical Research Council
105. The role of the National Health and Medical Research Council (the NHMRC) is to advise and make recommendations to the Federal, State and Territory Governments and to the Australian community on matters relating to the improvement of health; the prevention of disease; health care; medical care; dental care, health and medical research; and ethical issues in relation to health.
106. Following the Bienenstock review and the restructure of the NHMRC, the new National Health Advisory Committee has taken on the role of addressing issues relevant to child health in Australia. NHAC has identified a number of priority child health issues and working parties are currently being established to develop guidelines on the use of R(h)D Immunoglobulin (Anti-D); paediatric heart transplantation; prevention of pertussis; child sexual abuse; injury prevention programs; attention deficit hyperactive disorder; and pre-term births.
107. Also of relevance to the health of children is the work of the Womens Health Committee which currently includes the following expert panels/working parties: the Maternal Mortality Working Party, the Options for Effective Care in Childbirth Expert Panel, and the Working Party on the Long Term Effects on Women from Assisted Conception.
National Child Protection Council
108. The National Child Protection Council was established to focus the attention of Governments and the community on the need to reduce the incidence of child abuse and neglect. Commonwealth, State and Territory Governments are responsible for implementing the National Prevention Strategy for Child Abuse and Neglect under the auspices of the National Child Protection Council. The Councils secretariat is located in the Department of Human Services and Health.
Australian Institute of Health and Welfare
109. The Institute was established in 1987 with a mandate to focus on health-related research and recommendations. The Institutes mandate now includes the collation, analysis and dissemination of national data relating to welfare services including child care and child welfare services. It also seeks to improve the quality of data in these areas in the longer term.
MCEETYA
110. The Ministerial Council on Education, Employment, Training and Youth Affairs (MCEETYA) which is made up of all State, Territory and Federal Government Ministers of Education has agreed upon a list of 10 common national goals for Australian education. The document, known as the Hobart Declaration on Schooling in Australia, reinforces the aims of the Convention. Its goals include the provision of an excellent education for all young people, being one which develops their talents and capacities to full potential, and is relevant to the social, cultural and economic needs of the nation.
The Australian Institute of Family Studies
111. The Institute was established in 1980 and aims to promote the identification and understanding of factors affecting marital and family stability in Australia. Recent research projects undertaken by the Institute of relevance to children include studies covering literacy, the use of child-health services, homelessness, changing family structures brought about by parental separation and remarriage, child support law and practice, youth mediation, and living standards.
National Youth Affairs Research Scheme
112. The Scheme was established in 1985 to facilitate nationally-based research into current social, political and economic factors affecting young people and to provide information to assist with the formulation and assessment of policy development and implementation by Federal, State and Territory Ministers responsible for youth affairs. Research projects have covered the mental health of young people, young people as victims of violence, the health of young Aboriginal people and a range of other issues.
Australian Institute of Criminology
113. The Australian Institute of Criminology also carries out research into legal issues of relevance to children and young people. Recent examples of its work include the compilation of statistics on juveniles in detention, and the organisation in 1994, in conjunction with the Juvenile Justice Advisory Council of New South Wales, of a conference on preventing youth crime.
(c) Publicising the Convention
114. On 13 January 1993 the Convention on the Rights of the Child was declared to be an international instrument relating to human rights for the purposes of the Human Rights and Equal Opportunity Commission Act 1986. In addition to inquiring into whether Federal acts and practices and Federal legislation are inconsistent or contrary to any human rights (including the rights recognised in the Convention), it is the role of the Human Rights and Equal Opportunity Commission to conduct research and educational programs to promote understanding and acceptance of these rights.
115. In May 1989 the Commission and UNICEF Australia issued a briefing kit on the Convention. Other publicity undertaken by the Commission included providing speakers for community groups and writing articles and letters about the Convention for journals and newspapers. In July 1991 the Commission conducted a national seminar on the Convention, in conjunction with the Australian National University and the Australian Council of Social Services. The proceedings were subsequently published (Alston and Brennan eds, The Childrens Convention and Australia, 1991). The Human Rights Commissioner was involved in planning for the First World Congress on Family Law and Childrens Rights which was held in Sydney, Australia in July 1993. In 1994 the LAWASIA Childrens Trust was launched with the contribution of $125,000 from the proceedings of the congress. The object of the Trust is to support processes to implement and give effect to the UN Convention on the Rights of the Child.
116. Australia released a National Action Plan on Human Rights in 1994 in response to the World Conference on Human Rights which was held in Vienna in 1993. Among the issues addressed in the plan was the protection of the rights of children.
117. In November 1994 the Joint Standing Committee on Foreign Affairs, Defence and Trade issued A Review of Australias Efforts to Promote and Protect Human Rights. Issues discussed in the chapter Protecting the Rights of Children included the Childrens Convention, Aboriginal and Torres Strait Islander children, juvenile justice and asylum seekers - children in detention. The Human Rights Manual published by the Department of Foreign Affairs and Trade in 1993 includes sections on the UN Committee on the Rights of the Child and on childrens rights in Australia.
118. Initiatives have also been taken by State Government bodies to publicise the Convention. The New South Wales Health Department undertook various measures to publicise the Convention. In Victoria the Department of Health and Community Services assisted Save the Children Victoria, UNICEF and the National Association for the Prevention of Child Abuse and Neglect in arranging a seminar in August 1991 to discuss the implications of the Convention for Victoria. The seminar was attended by representatives from Government and non-Government agencies and individual members of the public. In South Australia the Childrens Interests Bureau has been instrumental in disseminating information about the Convention to the public and professionals and has done this by distributing copies of the Convention, preparing explanatory information and discussing the Convention in the media. A national seminar on the Convention was organised by the Bureau in February 1992 and the proceedings were published in 1993 (The UN Convention on the Rights of the Child Implementation in Australia).
119. Many non-government organisations also indicated their support for the Convention, strongly promoted its ratification and have continued to be actively involved in children's issues.
(d) Dissemination of the report
120. Australias Report on the Convention on the Rights of the Child will be tabled in the Federal Parliament and copies will be sent to Federal, State and Territory Government agencies and to non-government organisations. The UN Summary Record of the Reports Examination will also be tabled in the Federal Parliament.B. Definition of the child in laws and regulations
Article 1
For the purposes of the present Convention, a child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
(a) Age of majority
121. In all States and Territories the age of majority is 18. Under the Federal Marriage Act 1961, the legal minimum age for marriage is 18 years. However, with court approval in exceptional circumstances, a marriage may take place if one of the parties has attained 16 years.
(b) Medical treatment
122. The common law in Australia on legal competence to consent to medical procedures on children under 18 years of age can be summarised as follows. In general, children can consent to certain kinds of medical procedures where they are sufficiently mature to make decisions concerning their own medical treatment (under the principle adopted by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112). Where a child is incapable of giving valid consent to medical treatment, parents or guardians who have the primary responsibility for the childs welfare may in a wide range of circumstances consent to medical treatment of their minor child.
123. Tasmania has introduced into Parliament the Guardianship and Administration Bill 1995. The Bill regularises the law with regard to consent to medical treatment for all persons who do not have the capacity to give such consent. The Bill enables a person responsible for a person with a disability to consent to medical or dental treatment on that persons behalf if the person with a disability is incapable of giving informed consent and if the proposed treatment is not special treatment. Special treatment is defined to include sterilisation, termination of pregnancies, and removal of non-regenerative tissue for the purposes of transplantation.
124. If the person is under the age of 18 years and is unmarried, then the person responsible is that person's parent. If the person under the age of 18 years is married, then the person responsible is the spouse.
125. In South Australia the Consent to Medical and Dental Procedures Act 1985 provides that a minor over the age of 16 has the same capacity as an adult to consent to medical or dental procedures. The consent of a minor under the age of 16 has the same effect as if the minor were of full age where, in the opinion of two medical practitioners or dentists, the minor is capable of understanding the nature and consequences of the procedure and the procedure is in the best interests of the health and well-being of the minor.
126. In the Northern Territory, the Emergency Medical Operations Act 1973 provides that a medical practitioner may perform an operation on a patient who is a minor, without consent, if the medical practitioner and at least one other medical practitioner are of the opinion that the patient is in danger of dying or of suffering a serious permanent disability, and the performance of an operation on the patient is desirable to prevent that death or the occurrence of the disability.
127. The Act provides that a medical practitioner is not entitled to perform an operation on an infant unless the practitioner is satisfied that it is not practical to delay the operation until the consent of a parent or guardian or the next of kin is obtained, or the parent or guardian of the infant or the next of kin has failed to give consent.
128. There is strong judicial authority and a variety of State measures which protect disabled children, particularly in relation to sterilisation. This issue is addressed further in Part F(b), Basic health and welfare, Disabled children, below.
(c) Legal counselling/advice
129. In New South Wales a minor can seek legal advice from a solicitor without parental consent. In Victoria, the Australian Capital Territory, the Northern Territory and South Australia any young person, including a young person under guardianship orders, may seek legal advice without parental consent, regardless of age. In Western Australia there is no specific age set in legislation at the present time. Legal decisions indicate that once a child has reached an age of discretion, that is, around 14 to 16 years of age, and can demonstrate that he or she is capable of making mature decisions, then legal counselling without parental consent is permitted.
(d) End of compulsory education
130. In all States and Territories except Tasmania education is compulsory for children between the ages of six and 15 years. In Tasmania education is compulsory for children between the ages of six and 16 years. Exceptions to this include where the child or parent is ill, the child is satisfactorily educated at home, or where special psychiatric treatment is required and it is deemed to be in the best interests of the child to be exempt from school attendance. Further information regarding this issue is provided in Part G (a), Education, leisure and cultural activities, Education, including vocational training and guidance, below.
(e) Employment
131. Australia has ratified the following International Labour Organisation (ILO) Conventions concerning minimum age:
No. 7 Minimum Age (Sea) 1920
No. 10 Minimum Age (Agriculture) 1921
No. 15 Minimum Age (Trimmers and Stokers) 1921
No. 58 Minimum Age (Sea) Revised 1936
No. 112 Minimum Age (Fishermen) 1959
No. 123 Minimum Age (Underground Work) 1965
132. All States and Territories have legislation which regulates the employment of children. This issue is discussed further in Part H(c), Children in situations of exploitation, Economic exploitation, including child labour, below.
(f) Sexual consent
133. In the Australian Capital Territory the age of consent for heterosexual and homosexual intercourse has been indirectly set at 16 years. The Crimes Act 1990 provides that it is an offence for a person to engage in sexual intercourse with another person under the age of 16 years. In New South Wales and Queensland the legal minimum age of consent is 16 years for heterosexual sex and 18 years for homosexual sex. In New South Wales a prosecution for an offence for homosexual intercourse with a male under the age of 18 years cannot be commenced where the accused was at the time of the alleged offence under the age of 18 years, without the sanction of the Attorney-General. The age of sexual consent for a female in the Northern Territory has been indirectly set by the Criminal Code at 16 years. The Criminal Code does not provide for an age of consent for homosexual intercourse, except to make it an offence for males under the age of 18 years to have sexual intercourse or commit any act of gross indecency in private. Once a male has attained the age of 18 years an offence is only committed when it occurs in public.
134. In South Australia the age of consent for heterosexual and homosexual sex is 17 years. In Tasmania the age of consent is 17 years for heterosexual sex. However, the consent of a person against whom a crime is alleged to have been committed is a defence to a charge of unlawful intercourse with a young person under the age of 17 years if at the time when the crime was alleged to have been committed:
that person was of or above the age of 15 years and the accused person was not more than five years older than that person; or
that person was of or above the age of 12 years and the accused person was not more than three years older than that person.
135. In Victoria the law does not provide an age of consent for heterosexual or homosexual sex as such, but the Crimes Act 1958 provides a series of offences where sexual penetration occurs with a child between 10 and 16 years. There is no offence of sexual penetration with children of 16 or 17 years, except where a person is in a position of care, supervision or authority over the child. Under Western Australias Criminal Code a child under 13 is incapable of consenting to an act which constitutes a sexual offence against that child. Consent is also irrelevant in the commission of sexual offences against a child under 16 years of age. The age of consent for homosexual sex is set at 21 years.
136. The Federal Human Rights (Sexual Conduct) Act 1994 protects consenting persons over the age of 18 years who are acting in private from arbitrary interferences with their private sexual life. The Act relies on Article 17 of the International Covenant on Civil and Political Rights.
(g) Voluntarily giving evidence in court
137. In the Australian Capital Territory, 'the general rule is that a witness who gives evidence in court must do so on oath or affirmation'. In an exception to this rule which is partly directed towards children, a person may give unsworn evidence if:
the court is satisfied that the person understands the difference between the truth and a lie;
if the court tells the person that it is important to tell the truth; and
if the person indicates that he or she will not tell lies in the proceedings (Commonwealth Evidence Act 1995, which applies in the Territory).
138. Under the Evidence (Closed-circuit Television) Act 1991, it is the general rule that a child who gives evidence in court, other than a child defendant, does so by closed circuit television from a place outside the courtroom. The object of this legislation is to protect the child from suffering mental or emotional harm that could result if he or she were required to give evidence in the ordinary way. The exclusion of child defendants from giving evidence by closed circuit television will be reviewed.
139. In the Northern Territory children are subject to the same rules of evidence as adults. The Oaths Act 1939 provides that where a witness seems incapable of comprehending the nature of an oath the court may allow the witness to give evidence in any manner the court thinks fit provided the court is satisfied that the witness understands that he or she will be liable to punishment if his or her evidence is false. The Tanami Network is used to take evidence by electronic means where witnesses are unable to attend court.
140. In New South Wales the Oaths Act 1900 provides that a childs evidence will not be allowed if the court is satisfied that the child does not understand the difference between a truth and a lie, and the child is not able to respond rationally to a question.
141. In Queensland, section 9 of the Evidence Act 1977 permits a child to give evidence where, even though the child does not understand the nature of an oath, a court is satisfied the child has sufficient intelligence to give reliable evidence. Under section 9A expert evidence can be given as to whether a child under 12 has sufficient intelligence to give reliable evidence. Section 21A provides for the receipt of evidence by a child under 12, among others, in a number of special ways (for example, by closed circuit television).
142. In Tasmania a witness of any age can be subpoenaed. The Evidence Act 1910 provides that if a child does not understand the nature of an oath, the childs evidence may still be received if the child is of sufficient intelligence to justify the reception of the evidence and understands the need to tell the truth.
143. Tasmania has introduced the Evidence Amendment (Children as Special Witnesses) Bill 1995, which, inter alia, changes the law in relation to the giving of evidence by children. The Bill introduces a two stage competency test for the sworn evidence of a child under the age of 14 years. Such a child will be able to give sworn evidence if a judge or person acting judicially is satisfied that the child:
understands that he or she has an obligation to tell the truth that is over and above the ordinary duty to tell the truth; and
can understand and respond rationally to questions which are put to the child in a manner and language appropriate to the age and understanding of the child.
144. In Victoria, the Evidence Act 1958 provides that children under the age of 14 years may give evidence on oath. If in the opinion of the court they do not understand the nature of an oath, they may give unsworn evidence provided it appears to the Court they understand the duty of telling the truth and are capable of responding rationally to questions about the facts in issue. The requirement for any such evidence to be corroborated was abolished by the Crimes (Sexual Offences) Act 1991.
145. In proceedings which relate to a charge for a sexual offence or an indictable offence which involves an assault or injury, or threat of injury to a person under the age of 18 years of age, the Act provides for a party to apply, or a Court of its own motion to direct, that alternative arrangements be made for the child to give evidence. This includes the use of closed circuit television or other facilities that enable the child to give evidence from a place outside the court room. It also provides for the use of screens to remove the defendant from the child's line of vision as well as provisions in relation to Counsel's dress and persons permitted in the court while the child is giving evidence to make the court experience less intimidating.
146. The Act also provides for the use of video or audio recordings of a child's evidence-in-chief in the above proceedings. The court may rule as inadmissible the whole or any part of the contents of a recording.
147. In Western Australia any person can voluntarily give evidence in court provided he or she can understand the nature of the obligation to tell the truth imposed by oath or affirmation. The evidence of any child may be received if in the opinion of the court the child is possessed of sufficient intelligence to justify the acceptance of the evidence and understands the duty to speak the truth. There is now no longer a requirement that the evidence of a child be corroborated (section 101(2) of the Evidence Act 1906 was repealed by Act no 36 of 1992).
148. The Acts Amendment (Evidence of children and Others) Act 1992 amended the Evidence Act 1906 to provide for children to give evidence via closed circuit television (CCTV) or to be shielded by opaque screens. The purpose of the Act is to reduce the trauma of giving evidence in open court for children. Under the legislation children giving evidence about alleged assaults on them will automatically use CCTV or screens. Unlike other States the prosecutor does not need to convince the court that a witness should have the protection of a CCTV or screens. The courts have instituted a scheme where a court officer assists child witnesses who are required to give evidence by way of CCTV. The appointed court officer is available to assist the child during the proceedings and is also available before the trial to participate in any familiarisation visits to the courts which the Crown wishes to conduct.
149. In South Australia the Evidence Act 1929 provides that children may give sworn evidence in the same way as adults, provided the child understands the obligation of an oath. If the child does not understand the obligation of an oath but appears to the judge to have reached a level of cognitive development that enables the child to understand and respond rationally to questions, and to give an intelligible account of his or her experience, and the child promises to tell the truth and appears to understand the obligations entailed by that promise, the unsworn evidence is treated in the same way as sworn evidence. Where the childs evidence is not treated in the same way as sworn evidence the childs evidence is assessed in the light of his or her cognitive development and requires corroboration.
(h) Criminal liability
150. At present the age of criminal responsibility for Federal offences varies from seven to 10 years as State and Territory laws are applied. Under a Model Criminal Code currently being developed for application in all jurisdictions the age will be standardised at 10 years or more; this will become law in relation to Federal offences on 16 September 1995 when new provisions based on the Code come into effect. Further, a child over 10 years but under 14 years can only be criminally responsible for an offence if the child knows that his or her conduct is wrong. The question of whether a child knows that his or her conduct is wrong is one of fact and the burden of proving this is on the prosecution.
151. In the Australian Capital Territory a child who has not attained the age of eight years is presumed to be incapable of committing an offence. Where a child is between the age of eight and 14 there is a rebuttable presumption that the child is incapable of committing an offence because she or he did not have the capacity to know that the particular act or omission was wrong.
152. In New South Wales, the Northern Territory, Queensland and Western Australia, a child under the age of 10 years is not criminally responsible for any act or omission. A child between the ages of 10 to 14 years is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission he or she had the capacity to know that the activity in question was wrong at the time of the commission of the offence.
153. In Victoria the Children and Young Persons Act 1989 provides a minimum age of 10 years for criminal liability. A charge in respect of a child aged 10 to 16, other than for homicide and some other indictable offences, must be heard in the Criminal Division of the Childrens Court.
154. The age of criminal liability in South Australia is 10 years under the Young Offenders Act 1993.
155. In Tasmania under current legislation the minimum age at which a child can be charged with an offence is seven years. From the seventeenth birthday onwards the law treats an offender as an adult.
(i) Deprivation of liberty and imprisonment
156. The Federal Crimes Act 1914 provides that when a child is charged with a Federal offence the Court may apply State and Territory law relating to the trial and sentencing of young people. In practice, it is extremely rare for a juvenile to commit and be charged with a Federal offence.
157. In the Australian Capital Territory the Childrens Services Act 1986 provides that children may be detained in a remand centre:
because of their actual or apprehended violent behaviour;
by reason of the seriousness of the offence;
because of an escape or attempted escape by the child; or
for other good cause.
158. In the Northern Territory the Juvenile Justice Act 1983 defines a juvenile as a person who has not attained 17 years of age. A juvenile cannot be placed in prison except by order of the court, and must be 15 years of age. Provision also exists in the Act to detain juveniles above the age of 15 years in adult prisons in certain circumstances. Juveniles who are 17 year old and over are treated as adults for sentencing purposes, and if deprived of their liberty, will be detained in adult prisons.
159. In New South Wales children over 10 years may be arrested for offences and refused bail under the Bail Act 1978. The Children (Detention Centres) Act 1987 provides for children who are refused bail to be detained in a childrens detention centre. Under the Children (Criminal Proceedings) Act 1987, a child found guilty of a criminal offence may be committed to a detention centre for a maximum of two years. However, the Childrens Court has a discretion to sentence a young person convicted of an indictable offence as an adult, under the Children (Criminal Proceedings) Act 1987.
160. In Queensland the Juvenile Justice Act 1992 defines a child as a person under 17 years. The Act provides for maximum periods of detention which apply specifically to children. Children are not permitted to be sentenced to adult imprisonment. Current practice is that offenders of 17 years of age are not to be detained in adult centres unless there are exceptional circumstances. The Corrective Services Act 1988 requires that persons under 18 years of age are strictly segregated from older prisoners if they are held in correctional centres.
161. The Victorian Children and Young Persons Act 1989 defines a child as a person who is under the age of 17 years at the time an offence is alleged to have been committed. As a result, cases concerning offences committed by 17 year olds are not dealt with in the Childrens Court. The Corrections Act 1986 does not place an age restriction on people who may be sentenced to imprisonment. Under the Victorian system, courts have the option of sentencing offenders aged 17 to 21 years to a custodial sentence in either the youth or adult correctional system, as well as non-custodial options. The Government provides courts with this dual-track sentencing option of either the adult or juvenile systems in recognition that an arbitrary cut-off point for the juvenile system, based entirely on age, is not always appropriate.
162. In South Australia persons under the age of 18 years are treated as children for the purposes of the criminal law. Young offenders can be sentenced to periods of detention for up to three years in a training centre (there is no minimum period). Other sentencing options include fines, community service, supervision orders and home detention.
163. Young offenders are dealt with as adults if:
the offence is a homicide or attempted homicide or assault with intent to commit homicide;
the offence is an indictable offence and the youth, after obtaining independent legal advice, asks to be dealt with as an adult; or
the court or the Supreme Court determines on the application of the Director of Public Prosecutions or a police prosecutor, that the youth should be dealt with as an adult because of the gravity of the offence, or because the offence is part of a pattern of repeated offending.
164. A child dealt with as an adult in an adult court may be sentenced to imprisonment but must serve that sentence of imprisonment in a training centre until he or she turns 18.
165. In Tasmania a child can be imprisoned if the child is over 14 years of age for a particular group of offences, including murder and rape. The practice is to transfer such prisoners to a juvenile facility without exception, on the Ministers approval. A child over the age of 16 can be imprisoned for serious offences. Again the practice is to transfer prisoners to a juvenile facility if this is considered appropriate.
166. In Western Australia under the Young Offenders Act 1994, a young person may be detained in a detention centre during the period for which he or she has been remanded by a court and for the period of the person's detention on committal for trial. If a young person reaches the age of 18 years while detained in a detention centre he or she may be transferred to an adult prison and will be treated as an adult prisoner on remand.
167. Two of the general principles of juvenile justice are relevant in respect of deprivation of liberty and imprisonment. Section 7 of the Young Offenders Act 1994 provides that detention of a young person should only be used as a last resort and then only for as short a time as possible. Detention is to be in a facility where the young person is not exposed to contact with any adult detained at the facility, although a young person of 16 or over may be held in a prison for adults but is not to share living quarters with an adult prisoner.
168. Further information appears under Part H (b) (ii), Special protection measures, Children in conflict with the law, Children deprived of their liberty, below.
(j) Consumption of alcohol
169. In all States and Territories a child under the age of 18 may not consume alcohol on licensed premises and in general cannot be on licensed premises unless under the supervision of a responsible adult. The sale of tobacco to a person under 18 years is also prohibited. In Queensland the Juvenile Smoking Suppression Act 1995 prohibits smoking by children under 16 years of age.C. General Principles
(a) Non-discrimination (Article 2)
Article 2
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the childs or his or her parents or legal guardians race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the childs parents, legal guardians, or family members.
170. The Federal Government and all States and Territories have enacted anti-discrimination legislation. The prohibited grounds of discrimination and areas covered vary between jurisdictions. There is a range of exceptions in the legislation, and provision for special measures, that is, measures which are intended to promote the equality of groups.
171. Complaints are investigated and conciliated by the Federal, State or Territory bodies established to administer this legislation. In general, similar procedures are followed in all jurisdictions. If conciliation cannot be achieved, there is provision in most cases for the matter to be referred to a public hearing for determination. Appeal mechanisms are available from the decisions made at this stage of the process. In practice, a small proportion of complaints go to hearing or beyond. There is also provision for complaints of victimisation to be made, for example, where a complainant is victimised as a result of having made a complaint.
172. Children enjoy the same rights to make complaints of discrimination under Australian legislation as do adults. In practice, adults, such as parents or guardians, often make complaints on behalf of children. Although there has been no specific study into the extent to which children use discrimination legislation, a range of complaints of discrimination on the ground of disability in the areas of education and the provision of services have been made.
173. Children will be assisted in the exercise of their rights through the establishment of a Discrimination and Human Rights Law Centre proposed in the Access to Justice Statement released by the Attorney-General in May 1995. The Centre will service a wide range of clients across a variety of areas of discrimination and human rights law.
174. The following is a list of anti-discrimination legislation in force in Australia.
Racial Discrimination Act 1975
Disability Discrimination Act 1992
Human Rights and Equal Opportunity Commission Act 1986
Australian Capital Territory: Discrimination Act 1991
New South Wales: Anti-Discrimination Act 1977
Northern Territory: Anti-Discrimination Act 1992
Queensland: Anti-Discrimination Act 1991
South Australia: Equal Opportunity Act 1984
Tasmania: Sex Discrimination Act 1995
Victoria: Equal Opportunity Act 1995
Western Australia: Equal Opportunity Act 1984
Federal matters
176. The Sex Discrimination Act 1984 prohibits discrimination on the grounds of sex, marital status and pregnancy. Dismissal from employment on the ground of family responsibilities is also covered. The Act also makes sexual harassment unlawful in various areas of public life. The Racial Discrimination Act 1975 prohibits discrimination on the grounds of race, colour, descent and national or ethnic origin. The Disability Discrimination Act 1992 prohibits discrimination on the ground of disability. Disability is broadly defined to include, among other things, the loss, partial loss or impairment of physical or mental functions and the presence in the body of organisms causing or capable of causing disease or illness. Under the Human Rights and Equal Opportunity Commission Act 1986 and Regulations, complaints of discrimination in employment may be made on a wide range of grounds which include age, medical record, criminal record, impairment, sexuality and trade union activity. This Act also enables the Commission to investigate and conciliate breaches of human rights (by Federal Government agencies) recognised in various international instruments including the UN Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.
177. Functions concerning Australias responsibilities under the International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 (ILO 111) are conferred on the Human Rights and Equal Opportunity Commission by the Human Rights and Equal Opportunity Act 1986. In 1989, the Federal Government passed regulations which gave domestic effect to ILO 111 by specifying age as one of the grounds of discrimination within the Human Rights and Equal Opportunity Commissions functions relating to equal opportunity and treatment in employment and occupation under the Convention. The functions of the Commission include the investigation of complaints of discrimination on the ground of age in employment and occupation in the Federal, State or private sectors.
178. However, the Human Rights and Equal Opportunity Commission Act 1986 does not make it unlawful to discriminate on the ground of age and many complaints are not able to be conciliated, especially where the employer is bound to apply legislation which contains discriminatory provisions.
179. The Federal Government has established an Age Discrimination Task Force to consider age discrimination. The Taskforce is considering a possible strategic framework and legislative and non-legislative options, in particular in relation to discrimination on the ground of age which has adverse consequences for individuals. The Taskforce will also assist in the organisation of a forum later in 1995 to review the legal needs of older people and to discuss appropriate action to meet those needs.
State and Territory matters
Australian Capital Territory
180. The Australian Capital Territory Discrimination Act 1991 makes discrimination unlawful on the grounds of sex, sexuality, race, transsexuality, marital status, parental status, pregnancy, race, religious or political conviction, physical or mental disability, membership or non-membership of an employee or employer association, occupation or age in areas such as employment, education, accommodation and the provision of goods, services and facilities. Sexual harassment and racial vilification are also covered.
New South Wales
181. In New South Wales the Anti-Discrimination Act 1977 prohibits discrimination on the grounds of race, sex (including pregnancy), marital status, disability, homosexuality, age and by compulsory retirement. The Act also prohibits racial vilification, homosexual vilification and HIV/AIDS vilification. The New South Wales Equal Opportunity Tribunal has established the right (which has been confirmed on appeal) of children as infants in law to have complaints of discrimination heard by the Tribunal, provided a person of full legal capacity bears the responsibility for their costs.
Northern Territory
182. In the Northern Territory the Anti-Discrimination Act 1992 prohibits discrimination on the grounds of race, sex, sexuality, age, marital status, pregnancy, parenthood, breastfeeding, impairment (which covers physical, psychological, physiological and intellectual impairment), trade union or employer association activities, religious belief or activity, political opinion, affiliation or activity, irrelevant medical record, irrelevant criminal record, or association with a person who has, or is believed to have, an attribute referred to above. The legislation exempts discrimination where reasonably necessary to protect public health, in relation to some sporting activities or in order to promote equality of opportunity for disadvantaged persons.
183. The Northern Territory Anti-Discrimination Act 1992 further provides that a person may require, in terms of providing goods, services and facilities to a child, that the child is accompanied by an adult if there is a reasonable risk that the child could cause a danger to himself or herself, or others, if not accompanied by an adult.
184. Sexual harassment as well as harassment on the basis of any of the above attributes are also covered.
185. The Status of Children Act 1978 provides that the relationship between every person and his mother or father shall be determined irrespective of whether the father or mother are or have been married to each other and all other relationships shall be determined accordingly. Thus, the status of ex-nuptial children in the Northern Territory is the same as that of children born within marriage. The Act however imposes some limitations in relation to claims under an instrument for property by an ex-nuptial child.
Queensland
186. The Anti-Discrimination Act 1991 prohibits discrimination on the grounds of sex, marital status, pregnancy, parental status, race, impairment, religion, political belief or activity, lawful sexual activity or trade union activity, in the areas of work, education, the provision of goods and services, superannuation, insurance, disposition of land, accommodation, club membership and affairs, administration of State laws and programs and local government. The Act makes it unlawful to discriminate against a woman in the provision of goods and services on the ground that she is breastfeeding.
187. In addition, the Act prohibits discrimination on the basis of age. An exemption is made for youth-work wages to permit a person to remunerate a worker who is under 21 years of age according to the workers age. Age-based benefits are preserved so that a person may supply benefits and concessions on the basis of age. For example, a bus operator may give travel concession to people under the age of 12 or over the age of 70. Finally, the legislation provides that as a term of supplying goods and services to a minor, a person may require that the minor be accompanied by an adult if there would be a reasonable risk that the minor would cause a disruption or endanger himself or herself or others if not accompanied by an adult. As well, a person may discriminate against another person because the other person is subject to a legal incapacity if the incapacity is relevant to the transaction in which the person is involved. For example, it is not unlawful for a person to refuse to enter into a contract with a minor.
South Australia
188. The Equal Opportunity Act 1984 came into effect on 1 March 1986. The Act prohibits discrimination on the ground of race, sex, sexuality (which includes homosexuality, bisexuality and transsexuality), marital status, pregnancy, age or impairment in the areas of employment, associations, qualifying bodies, educational authorities, land, accommodation and the provision of goods and services. A recent amendment to the Act deems it unlawful discrimination on the ground of race if an authority or body fails to take reasonable steps to inform itself sufficiently on the adequacy or appropriateness of qualifications. Discrimination on the ground of impairment under the Equal Opportunity Act 1984 has been interpreted very broadly administratively so as to allow all HIV positive persons to have access to the complaints mechanism.
189. The Equal Opportunity Act 1984 contains a range of exemptions, examples of which are as follows:
charitable institutions conferring benefits wholly on one race, persons of a particular sexuality, marital status, age or age group, persons with impairment or pregnant women;
a scheme for the benefit of persons of a particular race, marital status, age group or persons with an impairment;
discrimination on the ground of pregnancy, impairment or age in employment where the person would not be able to perform adequately without endangering him or herself;
discrimination on the ground of pregnancy, impairment or age in employment where the person is unable to respond adequately to situations of emergency reasonably anticipated in connection with his or her employment;
discrimination on the ground of pregnancy where it arises out of the dismissal for a pregnant woman from employment and where there is no other work that the employer could reasonably offer her;
discrimination on the ground of age where an act is done in compliance with an award or agreement made or approved under the Industrial Conciliation and Arbitration Act 1904; and
discrimination by an association on the ground of age where the association has, on a genuine and reasonable basis, established different classes of membership for persons of different age groups.
190. The Family Relationships Act 1975 provides that, for the purpose of State law, a person and his or her birth father or mother are parent and child, and the other relationships of consanguinity or affinity shall be traced accordingly.
Tasmania
191. The Sex Discrimination Act 1994 proscribes discrimination on the grounds of gender, marital status, pregnancy, parental status or family responsibilities. Sexual harassment is also prohibited, as well as the publication or display of any matter which promotes, expresses or depicts prohibited conduct or discrimination. The State Government advises that child welfare, education and health policies are non-discriminatory.
Victoria
192. The Equal Opportunity Act 1995 prohibits discrimination based on the attributes of age, impairment, industrial activity, lawful sexual activity, marital status, physical features, political belief or activity, pregnancy, race, religious belief or activity, sex, status as a parent or carer and personal association.
193. Within the framework of the Equal Opportunity Act 1995, the Ethnic Affairs Commission Act 1982 and the Governments Social Justice Strategy, all relevant policy and program areas are committed to non-discrimination against children from ethnic, religious and linguistic groups, and to special measures for such groups.
194. The Youth Affairs Act 1986 provides for the promotion of the recognition and development of the social rights of young people, and the promotion of equal opportunity and affirmative action in Government policies and programs concerning young people.
195. The Residential Tenancies Act 1980 protects the rights of tenants, many of whom are young people, and aims to prevent discrimination against a person with children wishing to rent a property under a tenancy agreement.
196. The Intellectually Disabled Persons Services Act 1986 promotes access of children to mainstream services and the prevention of discrimination against children with disabilities. The principle of non-discrimination is also recognised in the Health Services Act 1988. One of the objectives of that Act is to ensure that an adequate range of health services is available to all persons resident in Victoria, irrespective of where they live or their social or economic status.
197. Both State and Federal Government guidelines for child care service subsidy require that services do not adopt discriminatory practices in relation to admission to the service.
Western Australia
198. The Equal Opportunity Act 1984 makes it unlawful to discriminate on the grounds of sex, marital status, pregnancy, race, age, family responsibilities, political and religious conviction or impairment in certain areas of public life, that is employment, education, provision of accommodation, goods, services and facilities, access to places and vehicles. Sexual and racial harassment are also unlawful under the Act.
Equality of Status
199. All States and Territories, except for Western Australia, have equality of status legislation, the purpose of which is to give both children of a marriage and ex-nuptial children equal status under State and Territory legislation. The relevant legislation is as follows:
Australian Capital Territory: Birth (Equality of Status) Act 1988
New South Wales: Children (Equality of Status) Act 1976
Northern Territory: Status of Children Act 1978
Queensland: Status of Children Act 1978
South Australia: Family Relationships Act 1975
Tasmania: Status of Children Act 1974
Victoria: Status of Children Act 1978
(b) Best interests of the child (Article 3)
Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
200. The best interests of the child is the key principle in most legislation concerning children in Federal, State and Territory jurisdictions.
201. In the decision handed down by the High Court of Australia on 7 April 1995 in Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 69 ALJR 423 the High Court reaffirmed the well established principle that treaties to which Australia is a party do not form part of Australian law unless their provisions have been incorporated into our municipal law by statute. However, the High Court also held that the joining of a treaty by Australia gave rise to a legitimate expectation that if a decision maker proposed to make a decision which was not in conformity with the treaty, the decision maker must give notice and provide an adequate opportunity of presenting a case against taking such a course. The existence of the legitimate expectation gave rise to a right to procedural fairness and not a legitimate expectation that the delegate would act in a particular way. Further, the High Court held that the acts of the Executive Government giving rise to the legitimate expectation were subject to any statutory or executive indications to the contrary.
202. The case concerned a decision by the Department of Immigration and Ethnic Affairs to deport a man who was the father/stepfather of children who were Australian citizens. The question arose as to whether there was a legitimate expectation that the best interests of the children, as stated in Article 3 of the Convention on the Rights of the Child, would be a primary consideration in the making of this decision.
203. In a joint statement issued on 10 May 1995 by the Minister for Foreign Affairs Senator Gareth Evans and the Attorney-General Michael Lavarch, the Government stated that entering into an international treaty does not raise a legitimate expectation that government decision-makers will act in accordance with the treaty prior to its enactment into domestic Australian law, and that any expectation that may arise does not provide a ground for review of a decision. This applies for existing treaties and for future treaties to which Australia may become a party. This statement covered decisions by State and Territory Governments as well as the Federal Government.
204. The Ministers expressed concern that because of the wide range and large number of decisions potentially affected by the decision, a great deal of uncertainty has been introduced into government activity. The areas of decision making cover a diverse range of situations where there are many legitimate differences of approach and possibilities for delay.
205. It was announced therefore that legislation would be introduced into the Federal Parliament to clarify the situation.
206. The foreshadowed legislation, the Administrative Decisions (Effect of International Instruments) Bill 1995, passed through the House of Representatives on 21 September 1995. The Explanatory Memorandum states that:
The purpose of the Bill is to eliminate any expectation which might exist that administrative decisions, whether at the Commonwealth, State or Territory level, will be made in conformity with provisions of ratified but unimplemented treaties, or, that if a decision is to be made contrary to such provisions, an opportunity will be given for the affected person to make submissions on the issue.
207. On 5 July 1995 the Attorney-General announced a review to ensure Australias treaty commitments are adequately recognised in Federal administrative decision making. The review will be carried out by the Attorney-Generals Department in consultation with the Human Rights and Equal Opportunity Commission and other government departments to identify key areas of Federal administrative decision making where Australias obligations under international agreements may be relevant. The aim of the review is to ensure that full and proper consideration is given to those obligations in the decision making process.
The Family Law Act 1975
208. The Family Law Act 1975 provides that in making orders, the Family Court must regard the welfare of the child as the paramount consideration. Under the Family Law Reform Act 1995, it is the best interests of the child which are to be the paramount consideration. This is consistent with the terminology used in the Convention on the Rights of the Child. The 1995 Act provides a list of factors that the court must consider in determining the child's best interests. These include:
any wishes expressed by the child;
the nature of the child's relationship with both parents;
the likely effect of any change in the child's circumstances;
the childs physical, emotional and educational needs;
the maturity, sex, background and other relevant characteristics of the child including the need to maintain a connection with Aboriginal or Torres Strait Islander culture;
any harm the child has suffered or is likely to suffer;
the attitude and responsibilities of parenthood displayed by the parents;
any family violence or family violence order;
whether it would be preferable to make an order that would be least likely to lead to further proceedings; and
any other fact or circumstance the court considers relevant.
209. Further issues relating to family law and the interests of children are discussed under Part E (c), Family environment and alternative care, Separation from parents.
210. The Childrens Services Act 1986 provides that in any proceedings which concern or affect a child, the court must exercise its jurisdiction to ensure that the child will have the care, protection, control or guidance which will best lead to the proper development of his or her personality and to the childs becoming a responsible and useful member of the community.
211. The policy of the Family Services Branch (part of the Housing and Family Services Bureau), which administers the Children's Services Act 1986, is focussed on the welfare and interests of children. A central role of Family Services is to deliver services that protect children from all forms of abuse, neglect and exploitation. Family Services is committed to contributing to the environment in which children are raised, trying to ensure this environment meets their physical, mental, moral and social needs and is one in which the rights of children are respected and upheld.
212. The Children (Care and Protection) Act 1987, administered by the Department of Community Services, provides a legislative framework for action and service provisions in the field of child protection and alternate care. The object of the Act is to ensure that children in need of care are provided with assistance and support services based on the premise that the welfare and interests of children are to be given paramount consideration. The Act also provides that the welfare and interests of wards and protected persons shall be given paramount consideration and that regard shall be had to a childs wishes in any decision about the child. The Adoption of Children Act 1965 provides that in making orders relating to a child the court should regard the childs welfare as the paramount consideration.
213. The Community Welfare Act 1983 provides that in the exercise of his or her power the Minister must at all times have as his or her main consideration the welfare of the child in relation to whom those powers are exercised, particularly for:
securing for the child such care and guidance as will promote that welfare; and
the maintenance and development of those family relationships that are in the best interests of the child.
214. The policy of the Family, Youth and Childrens Services Division of the Department of Health and Community Services, which administers the Community Welfare Act 1983, stresses that any intervention is to be child focussed with the needs of the child being of paramount consideration.
215. Under the Childrens Services Act 1965, the Director-General of the Department of Family Services and Aboriginal and Islander Affairs has the duty in respect of any child admitted to care under a care and protection order to further the best interests of the child. Currently, Queensland has specific policy guidelines which state explicitly that all decisions concerning children in care shall be made according to the childs best interests.
216. There are currently case management standards being developed which identify the necessity for a childs involvement in decision making prior to any decision being made about the child. The extent of the childs participation will be determined by the child's age and developmental level.
217. The Childrens Protection Act 1993 requires that in the exercise of the powers under the Act the safety of the child is the paramount consideration and the powers must always be exercised in the best interests of the child. The best interests principle is also embodied in the Community Welfare Act 1973, the Adoption Act 1988 and the Reproductive Technology Act 1988.
218. The objects and statutory policies of the Young Offenders Act 1993 are as follows:
The object of this Act is to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential;
The powers conferred by this Act are to be directed towards that object with proper regard to the following statutory policies:
- a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law;
- the sanctions imposed against illegal conduct must be sufficiently severe to provide an appropriate level of deterrence; and
- the community, and individual members of it, must be adequately protected against violent or wrongful acts.
Effect is to be given to the following statutory policies so far as the circumstances of the individual case allow:
- compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;
- family relationships between a youth, the youths parents and other members of the youths family should be preserved and strengthened;
- a youth should not be withdrawn unnecessarily from the youths family environment;
- there should be no unnecessary interruption of a youths education or employment; and
- a youths sense of racial, ethnic or cultural identity should not be impaired.
219. The childs best interests are provided for in the Adoption of Children Act 1988 and in legislation relating to care and protection of children.
220. Victorian Government policies and programs which affect children are based on the principle that actions and decisions will be taken with due consideration of the paramountcy of the interests of the child. The Adoption Act 1984 establishes the best interests of the child to be the paramount consideration in adoption. The paramountcy of the interests of the child is expressly recognised in the Children and Young Persons Act 1989 which lists the matters to which the Childrens Court must have regard when exercising its jurisdiction.
221. The best interests of the child are a major consideration in reaching a decision on an application for a child to reside with a parent in prison. The case of each child living in prison is reviewed every three months to monitor progress and ensure that the best interests of the child continue to be met by residing in prison.
222. The Adoption Act 1984 establishes that the best interests of the child will be a paramount consideration in adoption.
223. Under the Western Australian Family Court Act 1975 the paramount consideration is the welfare of the child in determining issues of custody, guardianship and access. In criminal cases there is no specific legislation which says that the best interests of the child have to be considered in determining a sentence for a child who has committed an offence but the welfare of the child is invariably considered when deciding the sentence.
224. Section 46 of the Young Offenders Act 1994 provides that when dealing with a young person who has been found guilty of an offence the court is to apply the general principles of juvenile justice. The general principles of juvenile justice contained in section 7 of the Act imply that the best interests of the child are paramount.
225. The Child Welfare (Detention Centres) Regulations also make reference to the best interests of the detainee in respect of the refusal of the detainee to see a visitor and the management of misbehaviour.
226. Further information on juvenile justice appears under Part H(b), Children in conflict with the law.
(c) The right to life, survival and development (Article 6)
Article 6
1. States Parties recognise that every child has the inherent right to life.
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
227. The following material addresses Article 6 (1). Material on Article 6 (2) - the right to survival and development - appears in Part F, Basic health and welfare.
Criminal and civil law
228. The Criminal Codes of Queensland, Western Australia, Tasmania and the Northern Territory embody the major aspects of the criminal law in those jurisdictions. In the other jurisdictions the criminal law is found in the common law and various legislation. Provisions of the criminal law which cover murder and manslaughter and provisions of the civil (non-criminal) law which cover wrongful act or omission causing death apply equally to adults and to children as victims of such acts. However, there exist provisions in criminal legislation which refer specifically to children.
229. In the Australian Capital Territory relevant provisions are found in the Crimes Act 1900. It is an offence to expose or abandon a child under two years of age and thereby endanger the life or health of the child. It is an offence, in relation to a childbirth and before the child is born alive, to:
prevent the child being born alive;
contribute to the child's death; or
inflict grievous bodily harm on the child.
230. Also, under section 139 of the Children's Services Act 1986, it is an offence punishable by fines, imprisonment or both, to ill-treat a child, fail to provide adequate and proper lodging, food or clothing, nursing, medical or dental care and attention or to leave a child unattended when the child could suffer injury or sickness or otherwise be in danger.
231. In New South Wales, in addition to the provisions of the general criminal law, a number of sections of the Crimes Act 1902 protect children, including:
sections 20-22A: child murder and infanticide
section 42: injuries to a child at time of birth
section 43: exposing or abandoning a child under two
section 44: not providing a child with food etc
sections 82-84: unlawful abortion
section 85: concealment of birth after 28th week of pregnancy
232. In addition to the above, the New South Wales Children (Care and Protection) Act 1987 also creates offences which protect children. They are:
section 25: abuse of children
section 26: neglect of children
233. The South Australian Criminal Law Consolidation Act 1935, contains additional provisions protecting children, similar to the New South Wales Crimes Act 1902 provisions.
234. In Western Australia the Criminal Code provides that it is the duty of every person who, as head of a family, has the charge of a child under the age of 16 years, being a member of his or her household, to provide the necessaries of life for the child, and he or she is held to have caused any consequences which result to the life or health of the child by reason of any omission to perform that duty whether the child is helpless or not.
235. The Criminal Code also protects children by criminalising conduct which might restrict the right of a child to life, survival and development. The Code creates the following offences:
attempts to procure abortion;
death by acts done at childbirth;
killing an unborn child;
concealing the birth of children;
infanticide;
endangering the life of children by abandonment or exposure; and
desertion of children.
236. Section 130 of the Child Welfare Act 1947 also makes it an offence for a parent to desert a child or to wilfully leave the child without, or wilfully neglect to provide the child with, adequate means of support.
237. In the Northern Territory a childs inherent right to life is protected by a number of provisions in the Criminal Code. For example, it is an offence to endanger the life of a child under two by exposure. Any person who unlawfully fails in his or her duty to provide the necessaries of life to a child is also guilty of a crime. The Code provides limited circumstances in which a medical practitioner may procure the miscarriage of a woman. The Criminal Code also states that a person who does an act or omits to do an act before or during the birth of a child that causes the death of the child is deemed to have killed that child and the relevant murder or manslaughter charges apply.
238. The Crimes Act creates an offence of infanticide, which carries a punishment equivalent to manslaughter, where a woman wilfully causes the death of her child under the age of 12 months while suffering from post-natal depression. This provision, while recognising the seriousness of the crime of infanticide, provides compassionate consideration of the mothers circumstances and is not regarded as being inconsistent with Article 6.
239. Under the Act, there is also a separate offence of concealing the birth of a child which carries a penalty of not more than two years imprisonment.
240. Both the Intellectually Disabled Persons Services Act 1986 and the Children and Young Persons Act 1989 seek to protect childrens right to life, survival and development. Many key health policies and programs have similar goals. These are discussed under Part F (c), Basic health and welfare, Health and health services.
241. In Tasmania a number of sections of the Criminal Code 1934 protect children in addition to the provisions of the general criminal law. Section 144 imposes a duty on every person who has the charge of another person, who is by reason of age unable to provide for himself or herself, to provide that person with necessaries. In addition, section 145 of the Code imposes a duty on the head of a family who has the charge of a child under the age of 16 years, to provide that child with the necessaries of life. A breach of these duties is a crime under the Code. Section 165 creates the crime of causing the death of a child before birth and section 165A provides for a charge of infanticide. In addition section 166 creates a crime of concealment of birth.
242. The criminal law in all Australian jurisdictions also covers abortion. The legislation has been interpreted in two major decisions. In R v Davidson [1969] VLR 667, the Supreme Court of Victoria held that the use of an instrument with intent to procure a miscarriage is unlawful on therapeutic grounds unless the accused honestly believes, on reasonable grounds, that the act was:
necessary to preserve the woman from serious danger to her life, or to preserve her physical or mental health (not merely being the normal dangers of pregnancy and childbirth which the continuance of the pregnancy would entail); and
in the circumstances, not out of proportion to the danger to be averted.
243. Similar reasoning was followed in the judgment of the New South Wales District Court in R v Wald (1971) 3 NSW DCR 25. These Victorian and New South Wales cases were subsequently followed in a Queensland case.
(d) Respect for the views of the child (Article 12)
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Family Court
244. It is a general principle of common law that every person who is affected by an administrative or judicial decision has a right to procedural fairness. A juvenile therefore has the right, at common law, to be heard at any proceedings which affect his or her rights and may have the right to have his or her submissions made by legal representation. Procedural fairness applies in all cases except where it is limited or abolished by contrary statutory provisions.
245. The Family Law Act 1975 requires the Family Court to consider any wishes expressed by a child in relation to custody, guardianship or access of the child and to give those wishes such weight as the Court considers appropriate in the circumstances of the case. A childs wishes are not final but the older the child the more persuasive his or her wishes will be. The Family Law Act 1975 provides that, for the purpose of complying with these requirements, the court may have regard to a counselling report and inform itself of the wishes of a child by such other means as it considers appropriate. However, in order to protect a child from undue pressure, neither the court nor any person can require the child to express his or her wishes in relation to custody, guardianship or access or in relation to any other matters relevant to the proceedings.
246. Means by which the court may ascertain the wishes of a child include:
permitting a child to give formal evidence, either orally as a witness or by affidavit;
private interview by the judge in chambers;
interview by the judge in the courtroom in the presence of the parties and their lawyers;
hearsay evidence presented by a party or a witness (pursuant to the exception to the rule against hearsay in the Family Law Act 1975); and
through the childs separate legal representative.
247. Ascertaining a childs wishes by oral evidence, by affidavit or by judicial interview is not encouraged by the court. The preferred approach is through the childs separate representative or by a report from a counselling or welfare officer in order to ensure that evidence is established in the most sympathetic and non-threatening environment possible.
248. The court may appoint a separate representative for a child in family law proceedings on application by the child, another person or on its own motion, where it considers the child ought to be separately represented. In 1994 the Family Court of Australia laid down guidelines for the appointment of separative representatives for children. Subject to the general rule that a separate representative should be appointed when the court considers that a childs best interests require independent representation, the court has set out circumstances where appointments should normally be made. These include where there are allegations of child abuse, there is an apparently intractable conflict between the parents, the child is apparently alienated from one or both parents, a child of mature years is expressing strong views which would, if given effect, result in a change of a long-standing custodial arrangement or a complete denial of access to one parent, and custody cases where none of the parties are legally represented.
Legal aid
249. Legal Aid and Family Services administers the Federal Community Legal Centre Program which provides funds to generalist community legal centres and specialist womens legal services and youth legal services. Community legal centres provide access to legal services for disadvantaged persons who currently are unable to access services.
250. The protection of a childs rights is seen as more important by legal aid commissions than most other applications for assistance. This is reflected in their determination of priorities for the types of matters in which they will provide assistance. Matters which are given the highest priority are cases where an individuals liberty is at risk, and cases where the welfare of a child, or a childs rights need to be protected.
251. In addition, Legal Aid Commissions are being increasingly asked to provide representation for children in family court matters, where it is considered that the interests of a child are not necessarily the same as the parents interests. This has resulted in a significant increase in demand for legal aid services for the separate representation of children in family law matters. In May 1995 the Federal Government announced in the Justice Statement that it will establish the Australian Legal Assistance Board to actively pursue a national approach to the delivery of legal aid to increase access, equity and efficiency.
252. The Aboriginal and Torres Strait Islander Commission provides financial assistance to community-based Aboriginal and Torres Strait Islander organisations to provide legal advice, legal representation and other related services to Indigenous people including children. Aboriginal and Torres Strait Islander Legal Services received over $30 million in grant funding during 1993-94. These services exist in all States and the Northern Territory and take a range of forms including the Aboriginal Legal Service Ltd Sydney, the Victorian Aboriginal Legal Service, the South East Queensland Aboriginal Corporation for Legal Service, the Bidjara Aboriginal Corporation, Gurindal Cell Visitors, the Aboriginal Legal Rights Movement Inc, Aboriginal Child Care Agency of WA, the Tasmanian Aboriginal Centre Inc and the Northern Australia Aboriginal Legal Aid Service Inc.
253. The Principles of Service in Family Services state that service delivery must be responsive to individual needs, non-judgmental and culturally sensitive. Further, people affected by decisions, particularly children, have a right to participate in decisions that affect them. This principle is reiterated in other policies, such as those concerning substitute care. In court proceedings a child may make representations in person to the court without legal representation and the court shall have regard to those representations. The Childrens Services Act 1986 also provides that the courts shall have regard to the wishes of a child, if the child is capable of expressing them, before making an order. The Childrens Court may also appoint a next friend to represent and advocate for a child in court, if it thinks it is in the interests of the child to do so. The Community Advocate Act 1991 also ensures that the wishes and interests of a child are given due regard by the courts and tribunals.
254. The principle of respect for the views of the child is also established within the Adoption Act 1993. The views of children must be taken into account according to their age and level of understanding in any adoption proceedings.
255. The Evidence (Closed Circuit Television) Act 1991 regulates the taking of evidence from child witnesses. Video equipment is used in the Magistrates Court to take evidence from child witnesses, thus alleviating to some extent the trauma associated with giving evidence in court. The program is used with all young people required to give evidence in cases of child sexual abuse.
Care and protection matters
256. The Children (Care and Protection) Act 1987 makes provision for the views of children to be considered in care and protection matters. As far as possible these principles are carried out in practice. In a minority of cases it is necessary to initiate legal proceedings to protect children from their parents. In these cases the Act requires that the court must be satisfied that any order made in respect of a child will result in a significant improvement of the standard of care being given to the child and, further, the court must consider, among other things, the views of the child. The Children (Criminal Proceedings) Act 1987 requires a court to ensure that a child has the opportunity to be heard and to participate when she or he is the subject of criminal proceedings.
257. Two other Acts make specific provision for the views of children to be taken into account. First, in proceedings under the Adoption of Children Act 1965, the views of children are always taken into account according to their age and level of understanding. While the Act provides for children of or above the age of 12 to give consent to their own adoption, specific policies of the Department which have been endorsed by the Court ensure that all children of or above the age of five are made aware of their proposed adoption and have the opportunity to express their views, at least through an independent social worker, about the proposal.
258. Secondly, under the Community Services (Complaints, Appeals and Monitoring) Act 1993, children in alternate care are able to have their views made known about decisions affecting them. They have a voice generally through the Official Visitors, who have a right to visit them after they have been in alternate care for in excess of three months; they also can be a party to administrative appeals on a range of matters to the Community Services Appeals Tribunal.
Young witnesses
259. Recent legislative initiatives have been specifically aimed at assisting young witnesses. For example, the Crimes (Child Victim Evidence) Amendment Act 1990 has been introduced to enable young people to give evidence by closed circuit television in certain criminal proceedings.
Consultation with young people
260. The New South Wales Office of Youth Affairs has engaged in a series of consultations with young people and is committed to the principle of ensuring that young people are encouraged to participate in making decisions which affect their lives. This is reflected in the New South Wales Government Youth Affairs Policy Statement and the preparation of the Youth Affairs Strategic Plan.
Student representative councils
261. Many schools in New South Wales have Student Representative Councils (SRCs). SRCs promote interpersonal skills, individual development and student participation in school decision making processes. The annual SRC conference provides an opportunity for student leaders from across the State to meet and contribute to the decision making processes of the Department of School Education. The State Council of SRCs includes a representative of each region. This group meets annually with the Minister for Education to raise issues of concern to young people.
262. School Councils are now able to include student representation in their membership. This means that students, through their representatives, can participate in decisions about overall budget priorities, aims of the school and broad educational goals.
263. The Principles of Substitute Care implemented by the Family, Youth and Childrens Services Branch of the Department of Health and Community Services provide that a childs opinion will be given some weight in determinations affecting the child. The Community Welfare Act 1983 stipulates that the Family Matters Court should consider, having regard to the age and level of comprehension of a child, the reactions of the child to the proceedings and the childs wishes in relation to the outcome of the proceedings.
264. The Department of Family Services and Aboriginal and Islander Affairs encourages childrens opinions to be taken into account during any planning process which involves them. Children who are considered able to contribute are invited to attend planning meetings. Departmental policy advises flexibility according to a childs age and level of understanding as to his or her actual presence in case planning and other meetings affecting them. Case management standards are being developed which identify the necessity for a childs involvement in decision making prior to any decision being made about him or her. The extent of a childs participation is determined by his or her chronological age and developmental level.
265. In relation to judicial proceedings in complex (often contested) cases, the magistrate of the Childrens Court uses discretionary powers under the Childrens Services Act 1965 to seek separate representation for a child. This means applying to Legal Aid for a solicitor to represent the child. The Education Department recognises the contribution which children can make to the evolution of their own curriculum and is involving children in the development of curriculum in the upper primary and secondary levels.
266. The Childrens Protection Act 1993 provides that if a child is able to form and express his or her own views as to his or her ongoing care and protection, these views must be sought and given serious consideration, taking into account the childs age and maturity. The Community Welfare Act 1973 and the Adoption of Children Act 1988 similarly provide for the childs views to be taken into account.
267. It is child welfare policy to take a childs views into account when making a decision about his or her care and placement and this is incorporated in case management standards. A Steering Committee has been established to oversee the drafting of new separate legislation for child welfare and juvenile justice which will contain provisions relating to respect for the views of the child.
268. The Youth Affairs Act 1986 aims to encourage and facilitate the effective involvement of young people in decision making in relation to the social, economic, cultural and political life of the community, and the participation of young people in the attainment of the objects of the Act.
269. The Office of Youth Affairs funds youth groups and agencies and initiates consultations with young people on issues which affect them. These include issues of access and availability of youth services and programs in growth corridors. In 1991 the Minister responsible for Youth Affairs reformed the Youth Policy Development Council (YPDC), which is established under the Youth Affairs Act, to include a majority membership of young people. Seventy-five per cent of members are now under 25 years of age and the youngest member is 15. The YPDC will continue to conduct consultations with young people across Victoria. All findings and comments received by the YPDC and the OYA form the basis of recommendations for action to the Victorian Government. In this way young people are being encouraged to have a say in decisions which affect their lives.
270. It is considered that appropriate weight is given to the views of the child in respect of services provided by the Health Department. The Intellectually Disabled Persons Services Act 1986, the Adoption Act 1984 and the Children and Young Persons Act 1989 promote the participation of children in decisions which affect them and provide appeal rights if their views are not respected.
271. All school councils have the discretion to co-opt students as members of the school council. There is an expectation that secondary colleges will recognise the important perspectives that students bring to a school council and will carefully consider their representation through co-option. Many schools also establish student representative councils to enable children to express their views on matters that affect their schooling. Australian teachers are generally trained to encourage children to give their own views in classroom discussions and to respect those views.
272. In both Family Court proceedings and proceedings in the Childrens Court to have a child declared in need of care and protection, the child may be separately represented and provide his or her views to the Court. In criminal proceedings against a child, the child has the right to be heard in the same way as an adult and in civil proceedings the child may be separately represented by a guardian ad litem. Although parents have formal control over their childrens affairs until the children are 18, in practice the views of teenage children are always taken into consideration in determining the issues.
273. The Health Department has a strong commitment to ensuring that all its health service outlets provide for children to express their views according to their age and maturity. It released its Policy on Informed Consent in 1991. This policy applies to all Departmental and Board hospitals with the exceptions of teaching hospitals and hospitals established under the Mental Health Act. Under this policy a mature minor may consent to treatment and may expect that his or her privacy will be respected. The judgment of maturity is to be based on the capacity of the individual, not upon his or her age. The nature and complexity of the treatment will affect the ability of the minor to understand the implications and therefore will affect the assessment of maturity. If a minor is considered to be a mature minor then there is no legal requirement to inform or to take into account the wishes of the parent or any other person. If it is decided that the minor is mature, then it must also be accepted that the minor can determine his or her own best interest, and confidentiality must be respected. This reflects the current law in Western Australia.
274. The Mental Health Act 1962 provides that a person under the age of 18 years who in the opinion of a psychiatrist is, or appears to be, suffering from a mental illness may be received into an approved hospital at the request of one of his or her parents or guardians. There is no provision under the Act for the childs views to be taken into account in such a matter. Under the proposed new Mental Health Act, there is no specific reference made to minors and common law will prevail in such instances. The Policy on Informed Consent will apply as described for other health services.D. Civil rights and freedoms
(a) Name and nationality (Article 7)
Article 7
1. The child shall be registered immediately after the birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
275. In Australia, citizenship is a Federal Government responsibility whereas registration of births is governed by State and Territory legislation.
Citizenship
276. Children born in Australia before 20 August 1986 generally acquired Australian citizenship by virtue of birth in Australia. Children born in Australia on or after 20 August 1986 acquire Australian citizenship by virtue of birth in Australia:
if at least one parent of the child was either an Australian citizen or a permanent resident at the time of the childs birth; or
the child has been ordinarily resident in Australia throughout the period of 10 years commencing on the day on which the child was born.
277. The Australian Citizenship Act 1948 was recently amended to allow for the acquisition of Australian citizenship by children born in Australia who do not acquire any citizenship by birth and who would otherwise be stateless. A person acquires citizenship if the Minister for Immigration and Ethnic Affairs is satisfied that the person was born in Australia; is not, and has never been, a citizen of any country; and is not, and has never been, entitled to acquire the citizenship of a foreign country.
278. Children born overseas of an Australian citizen parent can acquire Australian citizenship by descent through registration for citizenship. The Australian Citizenship Act 1948 also empowers the Minister for Immigration and Ethnic Affairs to grant citizenship to children and enables children under the age of 16 years to be included in a certificate of Australian citizenship granted to their responsible parent.
Registration of births
279. Matters relating to the registration of births in Australia are governed by State and Territory legislation. All States and Territories require the registration of births, but the time within which this must be done varies. In Queensland, South Australia, Tasmania, the Northern Territory, Victoria and Western Australia, registration is required within two months. In New South Wales and the Australian Capital Territory, the relevant time is one month.
Name
280. All States and Territories require the childs name as part of the particulars to be furnished for registration of a birth. In South Australia, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory, Western Australia and Norfolk Island there is no requirement that a first name be entered into the register at the time of registration. This may be added to the register at a later date. Provision also exists in most Australian jurisdictions for changes to occur in the registered name of a child in appropriate circumstances. Common law (to the extent that this has not been replaced by statute) also permits a change of name to occur by reputation and repute. In Western Australia the Child Welfare Act 1947 enables the Director-General of Community Development to give a child a name.
281. Recent Australian practice has been to move away from default registration of a child in the name of the father. The following two cases illustrate this fact. In the New South Wales Registry, the practice had existed of registering the surname of a child as that of the father in the case of parents married to each other with different surnames. This was the practice regardless of whether the mother consented. A recent decision of the New South Wales Equal Opportunity Tribunal in Ms L v Registrar of Births, Deaths and Marriages however, found this practice was a service to which the Anti-Discrimination Act 1977 applied and that it discriminated against the mother on the grounds of sex and marital status. The Tribunal observed that registration of the childs name in the event of disagreement between the parents could be resolved by the registration of the application received first.
282. Secondly, in a case in the Family Court (unreported, 18 August 1993), Warwick J considered the use of hyphenated surnames to be an appropriate remedy in relation to a dispute as to which surname was to be used by a child of a failed marriage. In that case, when the child was born he was given the name of the person regarded as his father, pursuant to the relevant Queensland legislation. The judge considered that merely because the wife herself had adopted her husbands surname while cohabiting with him did not mean she was a party to the registration of the child under that surname. He found that:
The real questions are as to the degree of identification of the child with a registered surname, and as to the difficulties or embarrassment for the child, if using a surname other than that by which he or she is registered.
Right to be known and be cared for
283. The Federal Government has introduced reforms to the Family Law Act 1975 which will replace the existing part of the Act which deals with children. The new part includes, as one of the principles underlying its object, 'children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together'.
284. Some States provide specifically for the right to be known and cared for. For example, the New South Wales Children (Care and Protection) Act 1987 states:
Children, for the full harmonious development of their personalities need love and understanding and towards that end, should, whenever possible, grow up in the care and under the responsibility of their parents, but if that is not possible, in an environment of affection and moral maternal security and in the case of children of tender years, should not, except in exceptional circumstances, be separated from their parents.
285. The New South Wales legislation continues:
Continuing contact between children and their parents should be encouraged in situations where, pursuant to legal proceedings, children have been separated from parents.
286. The South Australian Childrens Protection Act 1933, while requiring the childs best interests to be the main consideration, requires serious consideration to be given to the desirability of keeping the child within his or her family and preserving and strengthening family relationships between the child, the childs parents and other members of the childs family, whether or not the child is to reside within his or her family.
(b) Preservation of identity (Article 8)
Article 8
1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.
2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to speedily re-establishing his or her identity.
Loss of citizenship
287. Loss of Australian citizenship is governed by the Federal Australian Citizenship Act 1948. If an adult loses citizenship this can affect his or her child. The main ways an adult Australian citizen ceases to be a citizen are if he or she:
does any act or thing (other than marriage) the sole or dominant purpose of which and the effect of which is to acquire the citizenship of a foreign country;
renounces Australian citizenship and his or her declaration of renunciation is registered; or
is deprived of citizenship.
288. The Minister for Immigration and Ethnic Affairs can deprive a person of his or her citizenship if the person has:
knowingly misrepresented or concealed a material particular in relation to the application for citizenship; or
a responsible parent ceases to be a citizen because he or she has acquired another citizenship or renounced Australian citizenship and the child possesses the citizenship of another country; or
a responsible parent ceases to be a citizen because he or she is deprived of citizenship and a direction is made that the child also cease to be a citizen.
290. However, in all cases, a child does not cease to be an Australian citizen if one responsible parent is still an Australian citizen at the time.
(c) Freedom of expression (Article 13)
Article 13
1. The child shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, or in writing or in print, in the form of art, or through any other media of the childs choice.
2. The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For the respect of the rights or reputations of others; or
292. The extent to which laws and practices might restrict freedom of expression is a matter which itself is subject to monitoring. The Human Rights and Equal Opportunity Commission, in areas of Federal responsibility, can receive complaints of violations of Article 19 of the International Covenant on Civil and Political Rights, and as discussed in Part A, general measures of implementation, under Article 13 of this Convention. Further, in Victoria, Western Australia and the Australian Capital Territory, for example, discrimination legislation enables complaints to be made on the ground of the holding or not holding of any lawful religious or political belief or view or engaging in or refusing or failing to engage in any lawful religious or political activities.
Defamation
293. As mentioned above, the honour and reputation of a person, whether adult or child, are substantially protected by the civil and criminal actions for defamation. Certain exceptions apply to the protection offered by defamation laws. These include exceptions for fair and accurate reports of certain public proceedings (which include parliamentary or court proceedings) or fair comment on matters of public interest.
Students
294. Communication in schools is not limited to oral and written expression. Students are exposed to a variety of techniques and media, such as video, sound recording and film, with which to express themselves. Local inter-school competitions, performances or exhibitions and popular talk back radio programs allow students access to a broad range of audiences. Further, special events such as the March 1995 news conference on youth issues with the Prime Minister provide students with an avenue for public debate.
295. As discussed further under Part G(a), Education, leisure and cultural activities, Education, initiatives by the Federal Government through the National Equity Program for Schools have been designed to improve the participation and achievement in schools of young people disadvantaged by geographic isolation, economic circumstances, severe physical disability or a background of residential care. Programs such as these facilitate expression by increasing language and literacy skills in Australian schools.
296. In the Australian Capital Territory, issues related to freedom of expression are addressed through the draft Curriculum Policy and the Curriculum Frameworks and draft statements of the Department of Education and Training. These documents provide guidance for schools in the development of their curricula. Relevant sections of the system documents include:
activities which encourage students to focus on real life problems and solutions, develop creative thinking. Questions should be open-ended and aimed at developing flexible and original thinking, curiosity and imagination; and
media studies cannot be taught on the assumption that the teachers judgements of media products are the only correct judgements. While teachers must feel free to acknowledge their own tastes, these should not dictate to the students ... students must be encouraged to develop their own criteria for evaluating media products and be provided with the skills to do so.
(d) Access to appropriate information (Article 17)
Article 17
States Parties recognise the important functions performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall:
(b) Encourage international co-operation in the production, exchange and dissemination of such information and material from a diversity of cultural, national and international sources;
(c) Encourage the production and dissemination of childrens books;
(d) Encourage the mass media to have particular regard for the linguistic needs of the child who belongs to a minority group or who is indigenous;
(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of Articles 13 and 18.
Protection - censorship
298. The Federal Governments censorship powers derive from section 51 of the Australian Constitution, the power to regulate overseas and interstate trade, and section 122, the power to make laws with respect to the Territories.
299. These censorship powers are defined in the Customs (Prohibited Imports) Regulations and the Customs (Cinematograph Films) Regulations (the Regulations); the latter authorise the establishment of the Film Censorship Board (the Board) and the appeal body, the Film and Literature Board of Review (the Review Board).
300. Imported films for public exhibition are examined in terms of the Regulations to determine whether they should be registered. Once registered, they are classified by the Censorship Board in accordance with State or Territory laws under arrangements which have been in force with the Federal Government since 1949.
301. Federal, State and Territory Governments have agreed to a co-ordinated approach for the classification of home videotapes, publications and computer games, endorsing the Australian Capital Territory Classification of Publications Ordinance 1983 (the Ordinance) as a legislative model.
302. The 1949 Federal, State and Territory Government agreements (and succeeding agreements) and the arrangements set out in the preceding paragraph combine to provide a legal framework for the classification of films, videotapes, publications and computer games.
303. Notwithstanding the agreements and arrangements, some States retain reserve powers. Relevant Ministers in Western Australia and South Australia may vary decisions of the Censorship Board and the Review Board in relation to cinema films in their respective States; in Western Australia this power also extends to home videotapes. Western Australia, South Australia and Tasmania maintain Classification of Publications Boards which may vary decisions of the Censorship Board in relation to home videotapes; the South Australian and Western Australian boards may also vary decisions of literature classification officers (see below). The Tasmanian board operates that States literature classification scheme.
304. The current censorship and classification scheme will be replaced in 1996 with the commencement of the operation of the Classification (Publications, Films and Computer Games) Act (the Act) passed by the Federal Parliament in March 1995. The Act will be supported by previously passed complementary State and Territory enforcement legislation. The new scheme, a result of recommendations made by the Australian Law Reform Commission in 1991, will provide a clearer and administratively simpler standard approach across all States and Territories for the classification of films, videos, publications and computer games.
Videos and films
305. In Australia, classification of cinema films, home videotapes and computer games is compulsory. Decisions of the Censorship Board in these areas are taken by majority vote and against criteria set out in relevant legislation and in formally gazetted classification guidelines which are periodically updated to meet changing community standards. The Boards decision-making also gives effect to the fundamental principles of the National Classification Code:
adults should be able to read, see and hear what they want;
minors should be protected from material likely to harm or disturb them;
everyone should be protected from exposure to unsolicited material they find offensive; and
the need to take account of community concerns about:
- depictions that condone or incite violence, particularly sexual violence; and
- the portrayal of persons in a demeaning manner.
306. The Board is empowered to:
refuse to register a film imported for public exhibition if, in the Boards opinion, it is blasphemous, indecent or obscene; likely to be injurious to morality; or undesirable in the public interest.
classify a film as:
PG - parental guidance recommended for persons under 15 years;
M15+ - recommended for mature audiences 15 and over;
MA15+ - restrictions apply to persons under 15;
R18+ - restricted to adults 18 years and over; or
Refuse - refused classification.
classify commercial videotapes as:
G - suitable for all ages;
MA15+ - restrictions apply to persons under 15 years;
R18+ - restricted to adults 18 years and over;
classify computer games as:
G8 - suitable for people over 8 years;
M - recommended for mature audiences 15 and over;
MA - restrictions apply to persons under 15; or
approve or refuse to approve a range of advertising material related to the above.
Unrestricted;
Restricted - Category 1;
Restricted - Category 2; or
Refused classification.
308. When the Act comes into force this function will be assumed by the Classification Board (successor to the Censorship Board).
Enforcement
309. The Censorship Boards consumer advice about the content of non-G films and videotapes must, by law, be displayed with classification markings on the relevant cassettes and on related film and video advertising.
310. Enforcement of this requirement, and other related measures, is the responsibility of State and Territory authorities.
Other protection - electronic media
311. Childrens Television Standards (CTS) made under the Broadcasting Services Act 1992 provide that programs broadcast during certain prime childrens viewing hours must be classified for children. The object of the standards is that children should have access to a variety of quality television programs including Australian drama and non-drama programs. The criteria for classification of a childrens (including preschool childrens) program is that the program must be specifically for children, must be entertaining, well produced, enhance a childs understanding of the world around them and be relevant for Australian children. This is discussed further under Material of Social and Cultural Benefit below.
312. The CTS require that each commercial television station must show at least 390 hours of childrens programs annually. This includes 260 hours of C (for children) programs and 130 hours of P (for preschool children) programs per year. Each station must also show a minimum of 16 hours of new childrens drama per year. The Australian Broadcasting Authority (ABA) has decided to increase the amount of C drama required to be shown by each station by 1998 to 40 hours per year.
313. In order to protect children from injurious material however, classified programs may not:
demean any person or group on the basis of ethnicity, nationality, race, gender, sexual preference, religion, or mental or physical disability;
present images or events in a way which is unduly frightening or unduly distressing to children;
present images or events which depict unsafe uses of a product or unsafe situations which may encourage children to engage in activities dangerous to them; and
advertise products or services which have been officially declared unsafe or dangerous by a Federal authority or by an authority having jurisdiction within the licensees service area.
314. Childrens Television Standards in relation to the quality and quantity of advertisements directed at children must also be observed.
315. The Broadcasting Services Act 1992 also provides for industry codes of practice for programs, and complaint procedures, in relation to electronic media. Under these provisions, industry groups representing commercial and community television and radio broadcasting licensees are required to develop codes of practice relating to programming matters and complaints procedures. The codes may relate to, among other things, program classification, accuracy and fairness in news and current affairs, portrayal of sex and violence and vilification of minorities.
316. The codes of practice are then registered by the ABA. To register a code of practice the ABA must be satisfied that the code provides appropriate community safeguards for the matters covered by the codes, is endorsed by a majority of the providers of broadcasting services in that section of the industry, and members of the public are given an adequate opportunity to comment on the codes. The ABA has the power to impose mandatory program standards where it considers that codes of practice have failed or have not been developed.
317. Complaints regarding program or advertising content or compliance with an industry code of practice may be made, in the first instance, to the service provider. If a person has complained to the service provider and is dissatisfied with the response or has not received a response within 60 days, the complaint may be taken up with the ABA. The ABA must investigate all complaints which are correctly referred to it.
318. In addition to being required to develop codes of practice, the Broadcasting Services Act 1992 requires that commercial broadcasters ensure that the codes of practice:
apply the film classification system administered by the Office of Film and Literature Classification;
provide for methods of modifying films having particular classifications so that the films are suitable to be broadcast;
require that films classified as M and MA may only be broadcast at certain times (these being times when children are unlikely to be watching television);
require that films classified M and MA do not portray material that goes beyond the previous AO classification criterion; and
provide for advice to consumers indicating the content of M and MA programs. The national broadcasters (ABC and SBS) also apply codes of practice in line with film classification system and advice to consumers.
319. In addition, films that have been classified as X or have been refused classification by the Office of Film and Literature Classification cannot be broadcast on commercial television while R rated films cannot be broadcast on commercial or national television unless suitably modified.
320. Like free-to-air broadcasters, pay television licensees are prohibited from transmitting programs classified X or programs which have been refused classification by the Office of Film and Literature Classification. Pay television licensees may also not broadcast programs classified R until the ABA has, on the basis of extensive research, recommended and the Parliament has, approved the broadcasting of such programs. A further condition is that access to R-classified programs on pay television be restricted by disabling services to enable parents to prevent their children viewing such programs.
321. The ABA has completed the necessary research and has recommended that R-classified programs be permitted on pay television. However, the Senate Select Committee on Community Standards Relevant to the Supply of Services Utilising Electronic Technologies has examined this issue and recommended that R-classified programs not be permitted on pay television. The Committee has indicated that it is prepared to reconsider its recommendation if the R classification is overhauled.
322. The Federal Government is currently considering the issue of the possible broadcast of R-classified programs on pay television in the light of the above recommendations. The Government's primary concern in this matter is the right of children to be protected from potential harm which may arise from exposure to the broadcast of unsuitable material.
Material of social and cultural benefit
Electronic media
323. The quality of childrens programming on commercial television has been a major issue since the start of television in Australia. Children are explicitly recognised in the Broadcasting Services Act 1992 under which Childrens Television Standards (CTS) are set by the Australian Broadcasting Authority (ABA).
324. The current CTS which came into effect on 1 January 1990 have as their objective:
granting children access to a variety of quality television programs made specifically for them, including Australian drama and non-drama programs.
325. The CTS oblige commercial television licensees to broadcast minimum annual quotas (equivalent to approximately one hour per day) of preclassified childrens programs. Each commercial broadcaster is required to show at least 390 hours of classified childrens programs per year. Of this, 260 hours must be suitable for primary school children and 130 hours must be suitable for preschool children. To be classified as suitable by the ABA, programs are required to meet the following criteria, which are set out in the CTS. The programs must:
be made specifically for children;
be entertaining;
be well produced (script, direction, production, etc);
add something to a childs understanding and experience; and
be relevant for Australian children.
Radio
326. Triple J is a youth radio network which is operated by the Australian Broadcasting Corporation, an independent statutory authority, which receives funding from the Federal Government. The network is targeted exclusively to the youth audience and has approximately 1.5 million listeners. The network now has 44 regional centres which enables it to reach a large youth audience in regional Australia.
327. Triple J provides a diverse music mix together with specialist information programming. In 1994 Triple J's Morning program expanded coverage of news and current affairs and continued as a forum for young Australians to debate issues. Information programs produced by specialist teams included the retrospective 10,000 Days that Shook the World; the Drugs series and Great Moments in Science. Triple J also raises understanding of global issues by participating in major community events, for example a celebration of World Environment Day in cooperation with the Federal Department of Environment Sport and Territories and the Real Appeal, a weekend long radiothon which raised over $335,000 to aid the global refugee crisis.
Literature
328. The Australia Council is the agency of the Department of Communications and the Arts charged with fostering and enhancing Australian culture. The Literature Board of the Australia Council promotes the development of Australian creative writing through book publishing subsidies and individual writers grants. The Literature Board recognises the importance of providing high standard creative opportunities for the involvement of young people in literature. Accordingly, one of the access and equity policies of the Literature Board is to foster the development and training of young writers. The Literature Board also encourages the development of an Australian literature which reflects the multicultural nature of Australian society.
329. In the non-government sector, the Childrens Book Council of Australia is a voluntary organisation which provides incentives for Australian writers, illustrators and publishers to produce world class literature for children. The organisation began in November 1945. Its aims are, inter alia, to:
improve the range and quality of childrens books;
disseminate information to parents, children, teachers, librarians, and the community in general about childrens books and childrens reading;
recognise the importance of childrens literature in childrens language development;
encourage childrens reading skills and enjoyment both for recreational and study purposes;
promote informed discussion and debate about childrens book and childrens reading;
give recognition to authors, illustrators, and publishers of childrens books and support quality standards in childrens literature; and
encourage improvement of libraries and library services, especially for young children, and to encourage parents and children to use them.
330. Public libraries throughout Australia facilitate children's access to literature. The Department of Health and Community Services in the Northern Territory furthers the intention of this Article by providing a number of childrens services which include access to a toy library, playgrounds and various multi-functional services. The Department has funded organisations such as the Nhulunbuy Play Group, the Pularumpi Play Group, the Northern Territory Play Group Association. These groups provide services such as childrens books, educational aids and toys, exposure of children to group activities and excursions and other developmental child services. Such services promote the social and cultural benefit to children and go toward improving their general well being.
331. In Victoria, an information service and shopfront Information Victoria provides a focus for access by the public, including children and young people, to information on Victorian Government policies and programs. The information service handles inquiries by telephone, mail and personal visit, and is providing an increasing amount of school project material. The Victorian Office of Youth Affairs also aims to ensure that young people have access to appropriate information.
(e) Freedom of thought, conscience and religion (Article 14)
Article 14
1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.
2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.
3. Freedom to manifest ones religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.
332. The 1991 Australian census recognised over 70 religions adhered to by Australians. All of the major world faiths are represented in Australia as are smaller religions such as the Society of Friends, the Bahai faith and Caodaism. Approximately 77 per cent of Australians who took part in the census identified with a form of religious belief. Over half of the respondents identified themselves as either an Anglican or Catholic.
333. In Australia freedom of thought, conscience and religion, and its manifestation, are matters left largely to individuals. Little legislation exists to impose restrictions on the exercise of such freedoms, either by adults or children, nor is there any governmental coercion to change or renounce any view or belief. Legislation which exists in regard to freedom of religion and freedom to manifest religion is outlined below.
334. Some minor limitations do exist on the freedom of persons to exercise their beliefs fully. Most jurisdictions have legislation to provide that if a parent refuses (usually on religious grounds) to give consent to a child receiving a blood transfusion, and two or more legally qualified medical practitioners believe that a blood transfusion is necessary to save the childs life, a legally qualified medical practitioner who performs the transfusion upon the child, will be deemed for all purposes to have performed the transfusion with the authority of the person legally entitled to authorise the transfusion.
Freedom of religion
Constitutional guarantee
335. The Australian Constitution does not contain a specific head of legislative power to enable the Federal Government to legislate directly on the subject of religion or belief. Rather, section 116 of the Constitution provides:
The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
336. Section 116 is directed only to the Federal Government and does not inhibit the power to legislate on matters of religion and belief in the States. State law in relation to religious freedom is outlined below.
Human Rights and Equal Opportunity Commission
337. The Human Rights and Equal Opportunity Commission (HREOC) can receive complaints of violations of religious freedoms under Article 18 of the International Covenant of Civil and Political Rights and, as mentioned above in Part A (a), General measures, under Article 14 of this Convention.
338. From February 1993, HREOC also has had the power to: inquire into acts or practices of the Federal Government which are inconsistent with the rights contained in the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief; examine Federal legislation to determine whether it is consistent with the rights in the UN Declaration and report to the Federal Attorney-General on action that should be taken by the Federal Government; and conduct research and educational programs and to promote understanding and acceptance to these rights.
339. The UN Declaration is a more modern and detailed expression of religious freedoms. The Declaration also reflects the important role that a family has in regard to the way in which children are to be brought up. The Declaration recognises that parents have the right to organise life within the family in accordance with their religion or belief and that every child shall enjoy the right to education in the matter of religion or belief in accordance with the wishes of his or her parents, bearing in mind the best interests of the child principle.
States and Territories
340. In Tasmania, the Constitution Act 1934 provides for the following guarantee of freedom of conscience and religion:
Freedom of conscience and free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
No person shall be subject to any disability, or be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public office.
341. The Victorian Equal Opportunity Act 1995 enables complaints to be made alleging discrimination on the grounds of religious belief or activity or political belief or activity. The Act also makes specific provision for complaints of alleged discrimination to be lodged by children.
342. The Western Australian Equal Opportunity Act 1984 also enables complaints of discrimination to be made, inter alia, on the ground of religious or political conviction.
343. In the Northern Territory, the Anti-Discrimination Act 1992 provides that there shall not be discrimination on the ground of a persons religious belief or activity in education, accommodation, work, services and facilities, insurance and superannuation and goods.
344. In the Australian Capital Territory, the Discrimination Act 1991 provides that it is unlawful to discriminate on the ground of religious, or political, conviction in a number of areas including education.
345. In New South Wales the Anti-Discrimination Act 1977 does not provide for a ground of unlawful discrimination on the basis of religion or religious belief. This reflects the New South Wales Governments broader policy that anti-discrimination law should not interfere with the basic right of religious organisations to propagate religion in accordance with their religious doctrines. The New South Wales Law Reform Commission is, however, currently examining the possible coverage of religious discrimination in the course of its current reference concerning the Anti-Discrimination Act 1977. The final report of the Commission is due for release in late 1995.
Freedom to manifest religion
346. In Australia, the freedom for a child to manifest his or her religion or belief is subject to any restriction which may arise under the ordinary laws of Australia. No laws exist specifically to prevent the exercise of a childs right to freedom of religion. From time to time concerns have been expressed that the activities of certain religious sects may infringe the rights and freedoms of other members of the community. The Federal Government takes the attitude that it is not appropriate to legislate to restrict the activities of religious sects. However, to the extent that such activities would breach existing laws, in particular, criminal laws, then such matters should be dealt with as breaches of the law are normally dealt with, namely, by the courts.
Religious education
347. The right of parents to bring their children up in their own faith has been recognised in the Australian education system. Education in Australia is provided across all jurisdictions by both Government and non-government schools. A high per cent of non-government schools are run by churches or religious communities. These schools are recognised as playing an important role in the education of children in Australia.
348. In the High Court decision in the case of Attorney-General for Victoria; ex rel. Black v the Commonwealth (1981) 55 ALJR 155, legislation under which the Federal Government provides funds to the States to assist education in both Government and non-government schools was upheld as constitutionally valid. The High Court rejected the argument that this legislation, in so far as it resulted in benefits for schools conducted by or on behalf of religious bodies, infringed section 116 of the Constitution (see section above on the Constitutional guarantee). The High Court interpreted section 116 as prohibiting the Federal Government from making any law for conferring on a particular religion or religious body the position of a State (or national) religion or church. The particular laws under challenge were directed to the advancement of education and did not have the purpose or effect of setting up any religion or religious body as a State religion or a State church.
349. There is provision in State and Territory legislation for children to receive general religious teaching in Government schools. For example, the New South Wales Education Reform Act 1990 provides for non-sectarian secular instruction. Secular instruction is taken to include general religious education as distinct from dogmatic or polemical theology.
350. Thus the New South Wales Education Reform Act 1990 allows for special religious instruction to be provided by recognised representatives of approved religious persuasion for children whose parents want them to receive it. Parents who do not wish their children to receive religious instruction have the right to withdraw their children from any lesson if they object to the content. Under the provisions of the Education Reform Act 1990 recognised representatives of approved religious persuasion are entitled to attend Government schools during school hours to instruct children of their religious persuasion for a period of not more than one hour each week.
351. Under the Victorian Education Act 1958 attendance at any class for religious instruction is not compulsory for a child where his or her parents indicate that the child should not attend.
(f) Freedom of association and of peaceful assembly (Article 15)
Article 15
1. States Parties recognise the rights of the child to freedom of association and to freedom of peaceful assembly.
2. No restrictions may be placed in the exercise of these rights other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Freedom of association and peaceful assembly
352. There are few restrictions in Australia on the freedom of association and peaceful assembly. Children enjoy the same rights and responsibilities as adults in this area.
353. Of relevance to this right is the Queensland Peaceful Assembly Act 1992 which commenced on 23 July 1992. Prior to this Act, public processions were subject to permit requirements under the Traffic Act 1949. The objects of the Act are to:
recognise the right of peaceful assembly;
ensure, so far as it is appropriate to do so, that persons may exercise the right to participate in public assemblies;
ensure that the exercise of the right to participate in public assemblies is subject only to such restrictions as are necessary and reasonable in a democratic society in the interest of:
- public safety;
- public order; and
- the protection of the rights and freedoms of other persons; and
ensure that the rights of persons to participate in public assemblies may be exercised without payment of a fee, charge or other amount for a licence, permit or other authorisation.
354. Health legislation across Australia does not generally interfere with these freedoms except to the extent it contains rarely used quarantine provisions. The provisions are necessary for the purpose of protection of public health and therefore comply with clause 2 of Article 15 of the Convention. For example, in Victoria, the Health Act 1958 enables, inter alia, an order to be made imposing restrictions on a persons behaviour or movements where the Chief General Manager of the Health Department Victoria is satisfied that:
the person has an infectious disease or has been exposed to an infectious disease in circumstances where a person is reasonably likely to contract the disease; and if infected with that infectious disease, the person is likely to transmit the disease; and
there is a serious risk to public health; and
if counselling is appropriate, having regard to the nature of the disease, the person has been counselled but without success in achieving appropriate and responsible behaviour change.
355. In Victoria there is also provision in the Mental Health Act 1986 for involuntary detention. However, the Act contains safeguards against abuse and rights of appeal.
Right to form trade unions
356. The right to form and join trade unions and associations fully exists in Australia. It applies equally to people under the age of 18 as to adults. There are no substantive or formal conditions which must be fulfilled by workers organisations when they are being established. However, there are, of necessity, some conditions which must be satisfied if an association decides to register under the trade union legislation. Under the Federal Industrial Relations Act 1988 (as amended in 1990, 1993 and 1994), the voluntary registration requirements include formal requirements such as the minimum size of the association to be registered and its membership composition, ie employees or employers and certain other limited classes of persons (including the officers of the association concerned).
357. As registration is voluntary, the impact of the legislation is regulatory and not restrictive of the right to freedom of association as provided for in the Article. Further, freedom of association in Australia is demonstrated not only by the absence of any legal restrictions on the citizen's right to associate with others for any lawful object, but also by the recognition given to trade unions as an important force in Australian society. Their right to existence and freedom to organise in the interests of their members is accepted by the Australian community.
Unlawful associations
358. Certain associations are unlawful under Australian law. For example the Federal Crimes Act 1914 provides that associations which by their constitution or propaganda advocate or encourage the overthrow, by force or violence, of the Constitution or established Federal or State Governments, or are associated with associations having such a purpose, or advocate or encourage the doing of a seditious act, are unlawful. Membership of, or assistance provided to, such an association generally constitutes a criminal offence under the Act. Some Australian jurisdictions also have legislation which makes it an offence to consort habitually with reputed criminals, known prostitutes or persons who have been convicted of having no lawful means of support. The purpose behind this legislation is to prevent crime by discouraging criminal associations. Such legislation is considered to be necessary in the interests of public safety and order and the rights and freedoms of others.
(g) Protection of privacy (Article 16)
Article 16
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.
Information privacy
359. The Australian Constitution does not contain a specific head of legislative power to enable the enactment of Federal legislation to provide general protection for the privacy of the child or privacy in general. However, the Constitution provides that the Federal Government may legislate with respect to matters such as communications (being postal, telegraphic, telephonic and like services), corporations, banking, foreign affairs, census and statistics. These are areas that potentially raise important privacy issues. The Federal Government is also concerned with the regulation of its own administration, including Federal law enforcement agencies. As a general rule, other areas of privacy concern fall within the responsibility of each State and Territory.
360. The collection, storage, use and disclosure of personal information held by Federal Government departments is subject to intra-departmental guidelines. Within the Department of Social Security for example, the Privacy and Review Branch in the Legal Services Group operates as a consultative body advising on questions relating to information management. Furthermore, the confidentiality provisions contained in the Social Security Act 1991 protect the personal client information held by the Department of Social Security from unauthorised access (including unauthorised computer access), use, solicitation or disclosure.
Privacy Act 1988
361. In addition to the above, in 1988 the Federal Government enacted the Privacy Act 1988 which, among other matters, protects the information privacy of children and adults alike in their dealings with Federal Government departments and agencies. Important impetuses for the enactment of the Act were Australias ratification of the International Covenant on Civil and Political Rights and the recommendations of a report on privacy by the Australian Law Reform Commission.
362. The Privacy Act 1988 protects the information privacy of individuals in relation to their dealings with most Federal Government departments and agencies by establishing mandatory rules of conduct for the handling of records of personal information by those organisations. These rules of conduct, called Information Privacy Principles, regulate the collection, storage, use and disclosure of, and access to and correction of, personal information about individuals. They are based on Organisation for Economic Cooperation and Development Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data.
363. Personal information is defined in the Privacy Act 1988 to mean information or an opinion, whether true or not, and whether recorded in a material form or not, about a natural person whose identity is apparent or can reasonably be ascertained from the information or opinion.
364. The Privacy Act 1988 creates the office of the Privacy Commissioner. The Privacy Commissioners functions include:
examining and reporting on legislative or other proposals which may have adverse implications for the privacy of individuals;
researching and monitoring relevant developments in data processing and computer technology;
promoting an understanding of, and encouraging compliance with, Information Privacy Principles through publishing guidelines, delivering educational programs; and
investigating acts or practices of Federal Government departments and agencies that may breach an Information Privacy Principle, both in response to complaints by individuals and as part of the Privacy Commissioners monitoring role.
365. The Privacy Act 1988 leaves open such rights as would normally be available to restrain an interference with privacy by other civil proceedings, for example, by the grant of an injunction. In the case of a denial of access to, or refusal to correct, a document containing personal information, there are the existing remedies under the Freedom of Information Act 1982, including recourse to the Administrative Appeals Tribunal.
Freedom of Information Act 1982
366. Privacy protection at a Federal level is also afforded to Australian adults and children alike, by the right provided by the Freedom of Information Act 1982 to gain access to and seek correction of records of personal information held by Federal departments and agencies.
367. This Act provides that a document is an exempt document (and therefore that it need not be released in response to a request for access) if its release would involve the unreasonable disclosure of personal information about any person.
368. This Act also provides for a consultation mechanism prior to the release of a document containing personal information about a person. This mechanism applies where a request is received for access to such a document, and it appears to the officer dealing with the request that the person concerned might reasonably wish to contend that the document is an exempt document. In such circumstances, the officer must not grant access to the document unless (to the extent that it is reasonably practicable to do so) he or she has given the person concerned an opportunity to make submissions and has had regard to those submissions. There is also provision for the person concerned to seek review of a decision that the document is not exempt.
369. The Minister for Justice has recently initiated a review of the Federal Freedom of Information Act 1982. The review is to be jointly conducted by the Australian Law Reform Commission and the Administrative Review Council. It will consider, among other matters, the possible extension of the application of the Freedom of Information Act 1982 to private sector bodies. The review is expected to be completed by 31 December 1995.
370. The Federal Privacy Act 1988 also applies, with limited exceptions, to all Australian Capital Territory agencies. In the Australian Capital Territory, the Ombudsman Act 1989 also enables complaints against officials involving their actions to be comprehensively investigated. Freedom of Information legislation in the Australian Capital Territory is similar to Federal legislation described above.
371. In New South Wales, a Privacy Committee, established in 1975, conducts research into privacy issues, makes reports and recommendations to the Government and non-Government agencies and investigates complaints from private individuals or their representatives. Although the Committee has some statutory powers to require people to provide it with information, it endeavours to resolve all complaints by negotiation and conciliation. It has no power to enforce its recommendations. The Committee has issued numerous reports and guidelines to promote awareness of privacy issues.
372. The Privacy and Data Protection Bill 1994 was introduced into the New South Wales Parliament in April 1994. A Select Committee on the Privacy and Data Protection Bill was subsequently appointed to inquire into privacy and data protection and other matters.
373. In Queensland, the Privacy Committee Act 1984 established a Privacy Committee to investigate issues of privacy and provide advice to the Attorney-General. The Privacy Committee Act 1984 expired on 14 June 1991. Queensland is currently considering establishing a new privacy authority implementing information privacy principles for public sector agencies. The Invasion of Privacy Act 1971 protects against audio surveillance. Section 144 of the Children's Services Act 1965 creates a strict duty of secrecy in relation to the functions of officers and information they receive under that Act. The Adoption of Children Act 1964 has similar provisions.
374. In South Australia, a Privacy Committee was established in 1989. Among its other functions, the Committee is vested with responsibility for ensuring compliance with the information privacy principles based on those contained in the Federal Privacy Act 1988. The South Australian Adoption Act 1988 also has a number of provisions which provide for the privacy of the child (see Part E (g), Family Environment and alternative care, Adoption).
375. The Tasmanian Department of Community Services has a strong privacy policy. The Adoption of Children Act 1988 and the Child Protection Act 1974 have strong confidentiality provisions. The health and education areas have a strong emphasis on a childs right to privacy.
376. In Victoria, under the Children and Young Persons Act 1989, it is an offence to reveal confidential information contained in a report that a person has access to without the consent of the person whom the report concerns.
377. The Childrens Court of Western Australia Act 1988 prohibits the public release of any information about proceedings that is likely to identify a child. Adult courts are able to suppress the publication of identifying material when children appear before them or when the identification of adults would adversely affect children. The Young Offenders Act 1994 makes it an offence for a person to divulge any personal information obtained by reason of any function that person has in the administration of the Act.
378. Information in the possession of some State Governments may be requested by individuals concerned under State freedom of information legislation. The Queensland Government introduced freedom of information legislation in 1992. The Tasmanian Government enacted the Freedom of Information Act in 1991. Freedom of information legislation has been in operation in the Australian Capital Territory since 1989 and in Victoria since 1983. Alternately in Queensland, a written statement of reasons may be available through litigation under judicial review legislation.
379. The Western Australian Freedom of Information Act 1992 was enacted in 1992 and came into effect on 1 November 1993. The Act includes similar provisions to the Federal Freedom of Information Act 1982, as regards disclosure of personal information about an individual other than the applicant. There is a requirement to consult with third parties who have a right of complaint to the Information Commissioner if they object to a decision by an agency to release personal information about them. The personal information exemption is the one most frequently cited by agencies when refusing requests for information under the Act. Children (represented by their parents or guardians) have the right to be consulted and object to release of their personal information under the legislation. An agency may also refuse access to a document if it is satisfied that access would not be in the best interests of the child and that the child does have the capacity to appreciate the circumstances and make a mature judgment as to what might be in his or her best interests.
380. At the present time there is no all-encompassing privacy or data protection legislation operating in Western Australia which applies to State public sector agencies. Therefore intentional or accidental breaches of personal privacy which may occur outside the freedom of information process are not subject to investigation, remedies or sanction prescribed by legislation. The Western Australian Government has commenced a process to consider options for ensuring privacy of individuals in compliance with data protection principles.
Other privacy protections
381. Privacy and criminal arrest and investigation procedures are discussed under Part H (b) (ii), Special protection measures, Children - conflict with the law, below.
Family
382. There is no general rule of law that grants the family, as a distinct entity, freedom from arbitrary or unlawful interference. As in the case of all private individuals, intrusion into the lives of members of a family requires lawful justification. Thus, it is unlawful for anyone to remove a child from the custody of a parent except in the execution of a proper court order or other lawful authority (for example, under the child welfare legislation referred to elsewhere in this report). To do so would amount to one of a number of criminal offences and would entitle the parent to seek an appropriate court order to have the custody of the child restored.
383. A physical assault on a member of a family (as in the case of any individual) entitles that member to perform acts of self defence and allows other persons, including other members of the family, to assist. However, physical assaults perpetrated by family members on other family members would constitute a criminal offence which would provide lawful justification in taking action to protect those family members under threat of further violence.
384. A number of criminal and civil remedies exist in regard to invasions of privacy in the home. The civil remedy of trespass serves to prevent a person entering upon another's property without lawful justification. The civil law remedy of nuisance gives further protection over enjoyment of land by curtailing the emission of noise, smoke and other nuisances from adjoining properties. Criminal offences such as offensive behaviour, breach of the peace or offences against environmental laws may also be relevant. In all States it is also unlawful to demand payment for unsolicited goods and services.
Correspondence
385. By virtue of criminal offences, including the offences of tampering with, stealing or wrongfully detaining the mail, under the Federal Crimes Act 1914, interference with the mail is a rare event. Furthermore, the Australian Postal Corporation (Australia Post) is required under the Australian Postal Corporation Act 1989 to perform its functions in a way consistent with Australias obligations under any treaty.
386. The regulations made under the Australian Postal Corporation Act 1989 enable persons authorised by Australia Post to open mail in a limited number of circumstances, for instance:
repairing a damaged item;
where there is a reasonable belief that an article contains dutiable items or contraband;
where there is a reasonable belief that the sending of an article involved some illegal act; or
where the article is undeliverable so that it may be delivered or returned to the sender.
387. Where mail has been opened and on forwarded for delivery, a notice must be placed on the envelope disclosing that it has been opened by Australia Post and giving the reason for such opening. Mail can also be opened at the request of Customs officers.
Press
388. Privacy is also protected to some extent in Australia by voluntarily imposed media restraints. For example, The Statement of Principles of the Australian Press Council indicates support for due respect for private rights and sensitivities, an obligation to ensure the truth and exactness of the statements, and requires that news obtained by dishonest or unfair means or the publication of which would involve a breach of confidence should not be published.
389. Similarly, each member of the Media Entertainment and Arts Alliance adheres to a Journalists Code of Ethics which requires him or her to respect all confidences received in the course of his (or her) calling and to use only fair and honest methods to obtain news, pictures and documents. The Australian Press Council has established a procedure whereby persons may complain against a newspaper or periodical and seek a remedy against the publication concerned.
390. Currently journalists are seeking an absolute or qualified right to be able to refuse to answer questions lawfully put to them in court proceedings or by other bodies with the power to require evidence to be given. In this context, the rights and obligations of the media are being reviewed by the Senate Standing Committee on Legal and Constitutional Affairs.
Family Law Act
391. On 30 June 1994, the Attorney-General introduced the Family Law Reform Bill to amend Part II (Marriage Counselling Organisations), Part III (Counselling and Reconciliation) and Part IIIA (Mediation and Arbitration) of the Family Law Act 1975. The Bill extends the immunity and secrecy provisions that presently exist for court based personnel to community mediators. That is, evidence of anything said, or any admission made, at a meeting or conference conducted by a court, community or private mediator, or a family and child counsellor, would not be admissible in any court, Federal or State, or in any proceedings. The Bill also requires community counsellors to take an oath that they will not disclose anything said in a counselling session.
(h) The right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Article 37 (a))
Article 37 (a)
States parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.
392. Torture and other cruel, inhuman, or degrading treatment or punishment is not tolerated in Australia and constitutes a criminal offence and civil wrong in all Australian jurisdictions. Australia ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 8 August 1989 and the Convention came into force for Australia on 7 September 1989. Australia submitted its first report to the Committee Against Torture on 9 September 1991 (UN Document No CAT/C/9/Add.8). The second report under the Convention is being finalised and will be submitted to the Committee in 1996.
General provisions
Criminal law
393. In general, provided the requisite degree of intention or criminal negligence is proved, any use of force against a child is a criminal offence constituting assault or a more serious crime. The exceptions to this statement include the use of force:
in self defence, defence of another, or the defence of property, where no more force than is necessary is used;
in the prevention of crime, or the effecting of a lawful arrest, where no more force is used than is necessary;
in the course of the lawful correction of a child by its parents, teacher or person in loco parentis, provided no more force is used than is reasonable under the circumstances; and
where the use of force can be consented to, as in a professional boxing contest.
394. In no circumstances may force be used in obtaining a confession, or otherwise for intimidation or coercion. A confession by an accused person is only admissible in his or her trial if it was obtained voluntarily. Police officers are instructed that no threat or inducement may be made to obtain a confession. The courts in all Australian jurisdictions have a wide discretion in criminal cases not to admit any evidence obtained unlawfully or unfairly where to admit such evidence would operate unfairly against the accused. For further discussion see Part H (b), Special protection measures, Children in conflict with the law, below.
395. A childs rights not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment are addressed specifically in the Australian Capital Territory. In 1990, a new section was added to the Crimes Act 1900 to create an offence for committing acts of torture. The offence covers acts where severe mental or physical pain or suffering is inflicted for the purposes of obtaining information, punishment, intimidation or coercion or for any reason based on discrimination of any kind. The offence applies to the activities of public officials or those acting at the instigation of or with the consent or acquiescence of a public official. The offence is in accord with this Article of the Convention and Article seven of the International Covenant on Civil and Political Rights.
396. All jurisdictions, including the Territories of Christmas Island and Cocos (Keeling) Islands, provide for a system of compensation for criminal injuries. For example, under the Queensland Criminal Code, compensation may be awarded to those persons including children who suffer injury, whether physical or mental, where a person is convicted of any indictable offence. For the purposes of the scheme, injury means bodily injury or mental nervous shock. The amount of such compensation is primarily recoverable from the criminal offender but, in practice, is generally met by means of an ex gratia payment by the Crown. By law the sums awarded for physical injuries parallel the level of damages awarded under Workers Compensation legislation. Psychological or mental injuries are subject to an upper level of $20,000.
397. In Victoria the Crimes Compensation Tribunal operates under the Criminal Injuries Act 1983 and provides for the right of compensation to persons including children who have suffered injury or trauma and to the dependants of persons killed as a result of criminal activity. Decisions are based on whether on the balance of probabilities a crime has been committed irrespective of whether a criminal prosecution has been commenced or conviction obtained. While there is a provision in the Act to recover compensation from the offender, in practice nearly all compensation awarded comes out of consolidated funds. An applicant is entitled to a maximum award of $50,000. Amounts awarded to children who in the opinion of the tribunal are unable to administer their own finances are placed in trust until they reach their maturity.
398. In South Australia criminal injuries compensation payments are made where a person has suffered physical or mental injury, which terms include pregnancy, mental shock and nervous shock as a result of a crime. Compensation is paid by the State out of a special Criminal Injuries Compensation Fund, which is partly financed by levies paid by offenders. Money paid by the State is recoverable from the offender. Compensation may be payable even though no person has been convicted of the offence. Further, the Attorney-General may make an ex gratia payment where a person, including a child, is not otherwise eligible for an award. The maximum amount of an award is $50,000.
399. In Western Australia the maximum amount of compensation payable under the Criminal Injuries Compensation scheme to victims of crimes is currently as follows:
$20,000 in respect of any injury or loss suffered in consequence of an offence or an alleged offence committed before 1 July 1991; or
$50,000 in respect of any injury or loss suffered in consequence of an offence or alleged offence committed on or after 1 July 1991.
400. Other States also have criminal compensation schemes.
401. In Norfolk Island, a court may, in addition to any penalty imposed on a convicted person, order the offender to make reparation to a person, by way of money payment or otherwise, in respect of a loss suffered by the person as a direct result of the offence.
Civil (non-criminal) law
402. In addition to the right to statutory damages, victims of crime or the relatives of a deceased victim have the right, in all jurisdictions, to bring an action in tort for damages against the transgressor or some other person or agency vicariously liable for the transgression (such as an employer, including Governments). Damages may be awarded for physical injury, nervous shock, medical or other expenses and financial loss.
Particular cases
Parental punishment
403. Parents, or persons having the custody of children, have a legal duty to care for their children or the children in their custody. They commit a criminal offence if they neglect them or omit to act to prevent injury to them. One difficulty, however, is that offences of this kind against children may remain undetected because of reluctance or inability of the children concerned to reveal injuries or because those persons who become aware of cases of child abuse do not wish to become involved. Sometimes this may be because they consider this to involve problems of respect of privacy and the integrity of the family unit. This problem has been addressed by action taken in regard to child abuse. Child abuse issues are discussed further under Part E (i), Family environment and alternative care, Abuse and neglect, below.
404. At present, lawful correction or lawful chastisement by parents is a common law defence to an action for assault. The criminal legislation of Tasmania, Queensland and Western Australia each contains a version of this defence. When the issue was reviewed in Queensland in 1992 the Criminal Code Review Committee recommended that the defence be maintained.
405. While primarily a matter for the States, the status of the lawful correction or lawful chastisement by parents defence is currently under consideration by the Federal Government as part of the non-fatal offences against the person chapter of a Model Criminal Code, which is being developed jointly by the Federal and State and Territory Governments. The Model Criminal Code Officers Committee (made up of representatives from all jurisdictions) is in the process of preparing a discussion paper on the issue. In June 1995 the Federal Department of Human Services and Health, under the auspices of the National Child Protection Council released a discussion paper titled The Legal and Social Aspects of the Physical Punishment of Children. The Paper considers law and policy relating to the physical punishment of children in the home, schools, juvenile detention centres and alternative and substitute care facilities. The Paper also covers the beliefs and practices relating to the physical punishment of children.
School punishment
406. In 1990 the National Committee on Violence recommended that educational authorities develop constructive, non-violent methods of social control to replace corporal punishment. The responses to these recommendations from the States and Territories make it clear that all Australian jurisdictions favour rigorous controls over, if not the outright prohibition of, corporal punishment in schools.
407. The law relating to punishment in schools varies in different jurisdictions and as between independent and Government schools. Children can be physically disciplined by their teachers by way of punishment in independent schools in all States.
408. With respect to Government schools, corporal punishment is prohibited in the Australian Capital Territory, New South Wales, Victoria, Queensland and South Australia. In the Australian Capital Territory, corporal punishment has not been permitted in public schools since 1988.
409. The Australian Capital Territory Department of Education and Training policy states that students must not be subjected to physical abuse of any kind including all deliberate actions undertaken with the intention of causing physical pain or discomfort as a form of punishment of a student. The policy also states that it may be expected that school staff may take necessary or reasonable action to restrain a student from acts or behaviour dangerous to themselves or to any other person. In Victoria, a regulation under the Education Act 1958 completely prohibits the use in Government schools of any corporal punishment, which is broadly defined to include actions causing physical discomfort and throwing missiles. School discipline is administered in a manner aimed at encouraging students to take increasing responsibility for their own decisions.
410. All schools in South Australia develop a school discipline policy based on Education Department documentation School Discipline - The Management of Student Behaviour. The emphasis is on young people taking responsibility for their own actions with a sense of self-discipline and a respect for the rights of others. Students, teachers and parents work together to determine and spell out acceptable and unacceptable behaviour for students. In Queensland, the Department of Education also focuses on developing relationships, communication and self esteem skills in an ethical way. A second focus is on behaviour management for students who need intervention.
411. In the other Australian States, it is generally lawful for moderate and reasonable corporal punishment to be administered for serious school offences. Regulations applicable to Government schools closely proscribe the use of corporal punishment - restricting the persons by whom and the reasons for which it can be administered and stipulating the lawful forms of punishment. It is current New South Wales Government policy to review provisions relating to corporal punishment in public schools.
412. In all jurisdictions, children subjected to excessive or otherwise unlawful corporal punishment have a civil right of action for damages against the teacher or school. Teachers who administer unlawful corporal punishment are also liable to be prosecuted for assault.
Treatment in detention
413. In New South Wales the Children (Detention Centres) Act 1987 contains various provisions which prohibit inhuman or degrading punishments. Punishments available are restricted to caution, restriction from participation in sport or leisure activities, additional duties, exclusion from, or confinement to, a place, or an extension of the period of detention. The allowable duration of each of these punishments is limited and other restrictive measures are made. For example, exclusion from, or confinement to, a place, shall not exceed three hours, or for a detainee of or over the age of 16 years, not exceeding 12 hours. The detainee shall at all times be visible to, and able to communicate readily with, an officer. Certain punishments are also expressly prohibited including striking, cuffing, shaking, or other forms of physical violence, or deprivation of food or drink.
414. In the Northern Territory, the Juvenile Justice Act 1983 restricts the punishment of a juvenile in detention to the use of such force as is reasonably necessary in the circumstances in order to maintain discipline in the detention centre. The Act specifically prohibits discipline by: striking, shaking or other forms of physical violence; enforced dosing with a medicine, drug or other substance; compulsion to remain in a constrained or fatiguing position; handcuffing or use of similar devices to restrain normal movement; isolation from other detainees except if desirable for the protection of other detainees and only then by order of the superintendent of the centre and only for a period of less than 12 hours.
415. In Victoria, the Children and Young Persons Act 1989 seeks to prohibit in remand centres and youth residential centre the kind of conduct prohibited by this Article. Corporal punishment, psychological pressure, physical or emotional abuse are prohibited. Reasonable force is only to be used on young people in the centres in cases of clear necessity.
416. In South Australia punishment of a child is normally by deprivation of privileges. No child may be deprived of food or clothing as a punishment and no child may receive corporal punishment. Children may be kept in detention rooms for limited periods.
417. Children who are detained in detention centres in Western Australia are protected from torture or other cruel inhuman or degrading treatment or punishment. The Child Welfare (Detention Centres) Regulations regulate the punishments which may be imposed on detainees. Punishments for misbehaviour include:
isolation of the detainee in a cell where such isolation is necessary to protect the detainee, another detainee or property;
additional domestic duties or other duties;
the withdrawal of privileges; or
a fine.
418. The isolation of a detainee is subject to strict rules relating to supervision and the period for which a person can be maintained. A detainee cannot be isolated for more than 24 hours without the approval of the Chief Executive Officer, and cannot be kept in isolation for more than 72 hours except by order of a Judge or Magistrate.
419. Certain types of conduct are prohibited in the discipline or control of the behaviour of detainees in a detention centre:
the administration of corporal punishment;
physical contact involving undue pressure; and
exertion of undue psychological pressure.
420. Reasonable physical force is, however, permitted to physically restrain a detainee for the protection of that detainee or other detainees or persons.
421. Physical contact may be used for the proper care, supervision, training, discipline and development of a detainee provided that such physical contact does not exceed that which would be consistent with the actions of a good parent, having regard to all the surrounding circumstances.
422. Searches of detainees are also regulated. Detainees are not to be strip searched in the sight or presence of a person of the opposite sex, and unless impracticable, in the presence of another detainee. Searches must be conducted with regard to decency and self-respect.
Police officers
423. Police officers in each jurisdiction are not only bound by the rules of common law, but their obligations and duties as police officers are further elaborated in the relevant code of conduct applicable to them. Officers are instructed to treat those in detention with respect for their human dignity. Police training details the circumstances in which force may be used and emphasises that force is only to be applied where necessary and to the minimum extent necessary. Officer training includes training in conflict management to enable a solution to be found without requiring physical restraint. The situations where force may be used include actions in self-defence, for the prevention of injury to the detained person or other persons, in making an arrest and for preventing escape from detention.
424. In relation to police officers and Aboriginal people the Royal Commission into Aboriginal Deaths in Custody made a number of recommendations including the recommendation that greater emphasis should be placed on the involvement of Aboriginal communities, organisations and groups in devising appropriate procedures for the sensitive policing of public and private locations where it is known that substantial numbers of Aboriginal people gather or live. Many of these recommendations have been implemented by the Federal, State and Territory Governments.
Medical or scientific experimentation
425. The trying out of new or unproved methods on human subjects without their consent is not lawful in Australia. However, it is accepted in Australia that there is an essential role for human experimentation in the improvement of human health. Ultimately all new interventions aimed at the cure of ill-health or the maintenance of good health must be tried on humans before they can be accepted for general usage. However, it is also recognised that the human subjects of such experimentation must freely consent to participation without coercion or inducement and in the full knowledge of what is involved.
426. Except in an emergency, the consent of the patient, or in the case of a child, those in law qualified to give such consent, is a necessary prerequisite for the giving of any treatment or the performance of any operation on the patient by a medical practitioner. This prerequisite applies to all patients, whether mentally ill or not, and whether in custody or not. For further discussion on the question of qualification for consent see Part B (b), Definition of the child in laws and regulations, Medical treatment.
427. Australia supports the Helsinki Declaration, adopted by the 18th World Medical Assembly, Helsinki, 1964, revised by the 19th World Medical Assembly, Tokyo, 1975, and also the International Guidelines for Biomedical Research Involving Human Subjects published by the Council for International Organisations of Medical Sciences in collaboration with the World Health Organisation in 1982. The National Health and Medical Research Council has issued, and regularly updates, guidelines in the form of a statement on human experimentation and associated supplementary notes. Briefly stated, these guidelines call for human experimentation to involve only those subjects who have freely consented to participate in the full knowledge of what is involved and knowing that their individual rights and welfare are fully protected.
428. The statement also requires researchers involved in human experimentation to be fully competent in, and aware of, all areas of their research field and further requires them to follow research protocols which are approved by the relevant institutional ethics committees. This statement does not have the force of law, rather it is intended primarily as a guide on ethical matters bearing on human experimentation for research workers and administrators of institutions in which research on humans is undertaken in Australia. However, the knowledge that funding can and will be withdrawn from researchers failing to adhere to the guidelines provides a very powerful and effective regulatory mechanism.
429. Under Australias Federal system of Government, responsibility for legislating in this area rests with State Governments. Three States, Victoria, South Australia and Western Australia, have introduced specific legislation governing reproductive technologies and embryo experimentation. In all three States the legislation prohibits research that might be detrimental to the embryo. In addition, embryo experimentation is addressed in the ethical guidelines issued by the National Health and Medical Research Council. The guidelines are currently under review.
Collecting identifying material from children
430. The Victorian Crimes Act 1958 provides in section 461L(1) that a child under the age of 10 years who is suspected of committing an offence must not be requested to give his or her finger-prints, and must not have his or her finger-prints taken. However, subsection (2) of that section provides that a member of the police force may take, or cause to be taken by an authorised person, the finger-prints of a child aged between 10 and 15 years where that child is believed on reasonable grounds to have committed an indictable or a summary offence. Where consent to the taking of finger-prints is refused by a child and a parent or guardian of the child, the Childrens Court may, on application by a member of the police force, make an order directing a child between the age of 10 and 15 years to give his or her finger-prints. Under the Victorian legislation, a child in respect of whom an application for a finger-printing order has been made may not call or cross-examine any witnesses (section 461L(7)(b)). (For the purposes of Victorian finger-printing provisions, children aged 15 years and above receive treatment equal to that of adults.)
431. In considering whether the making of the order is justified, the court must take into account the following factors:
the seriousness of the circumstances surrounding the offence;
the alleged degree of participation by the child in the commission of the offence; and
the age of the child.
432. A similar provision exists in the New South Wales Crimes Act 1900, which provides for the photographing and finger-printing of a child under 14 years who is in lawful custody for any offence punishable on indictment or summary conviction. A member of the police force of or above the rank of sergeant may apply to the Childrens Court or where it is not possible to apply to the Childrens Court within 72 hours after the taking of the child into custody, a Justice, for an order authorising the taking of the childs photograph, finger-prints or palm-prints (section 353AA). A child may not be held in custody for the sole purpose of an application being made. (For the purposes of New South Wales finger-printing provisions, children aged 15 years and above receive treatment equal to that of adults.)
433. In the Australian Capital Territory a police officer shall not take, or cause to be taken, identifying material of a child unless a magistrate has approved the taking of the identifying material. The Childrens Services Act 1986 provides that application may be made by a police officer to a magistrate for approval to take the identifying material of a child who is in lawful custody in respect of an offence or of a child against whom proceedings have been instituted by summons in respect of an offence.
434. The Commonwealth Crimes Amendment (Forensic Procedures) Bill, introduced into Federal Parliament in June this year, provides for procedure at the hearing of an application for an order. Under sub-section (5) of section 23WX of that bill, a suspect may be represented by a legal practitioner. Sub-section (6) of that section provides that the subject or his or her representative may call or cross-examine any witness, and may address the magistrate. This provision is based on the Model Forensic Procedures Bill developed by the Commonwealth Model Code Officers Committee. The bill will provide the basis for the Commonwealth Criminal Code expected to be in force by the year 2001, and will ensure that children charged with an indictable or summary offence have the right to adequately contest an application to a court or magistrate for an order authorising the taking of the childs photograph, finger-prints or palm-prints.
Blood and other forensic samples
435. For many years it has been the practice of police in all jurisdictions to take blood and other forensic samples from suspects as part of the investigation of criminal offences. This practice was based on vague legislation which contained few if any safeguards. Recently, jurisdictions have co-operatively developed through the Model Criminal Code Officers Committee (see above) new legislation designed to safeguard against cruel, inhuman or degrading treatment of suspects in these circumstances. The powers under the legislation are clearly defined and many additional safeguards specifically directed to children have been built in such as the requirement for court approval in all cases. The legislation specifically prevents carrying out any procedures in a cruel, inhuman or degrading manner. The Federal Government is planning to introduce legislation based on the model Bill and it is expected that other jurisdictions will introduce similar legislation thereafter. The Bill provides for compulsory procedures and, where necessary, the use of reasonable force but these procedures are only authorised where there is a court order and proper medical standards are adhered to.
436. Similar comprehensive legislation already exists in Victoria, under the Crimes Act 1958 (as amended in 1989 and 1991).
437. These provisions do not breach Australias international obligations for a number of reasons. Although the legislation establishes a compulsory procedure, it is not for the purposes of medical or scientific experimentation but to obtain reliable evidence which can be used to assist in the prosecution of serious offences or to exonerate suspects. Secondly, the procedures do not constitute torture or...cruel, inhuman or degrading treatment or punishment as samples must be taken a manner consistent with appropriate medical standards and in circumstances affording reasonable privacy to the person from whom the sample is taken. Indeed, as mentioned above, the provisions work toward implementing the objectives of the Convention by requiring more accountability and scrutiny of decisions made by police.
438. Recently, the New South Wales Court of Criminal Appeal held that the bare bones power to examine arrested suspects did not extend to the taking of blood samples. On 1 June 1995 the New South Wales Attorney-General announced in his second reading speech introducing an amendment which would extend the existing law to enable the taking of blood samples, that the amendment was an interim measure pending agreement on the Model Bill by the Standing Committee of Attorney's General Criminal Code Officers Committee. The New South Wales Attorney-General undertook to implement more comprehensive provisions later. The new laws are therefore not of the standard that is likely to be seen as a longer term solution.E. Family environment and alternative care
(a) Parental guidance (Article 5)
Article 5
States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.
439. In Australia, the family is a fundamental social unit and its importance is given implicit and explicit recognition. The major pieces of Federal legislation dealing with the family are the Marriage Act 1961, the Family Law Act 1975 and various pieces of social welfare and human services legislation. The protection of families is, of course, also a matter within the concern of State and Territory Governments, in particular in regard to activities by those Governments in the area of community welfare.
440. It is generally agreed that it is only when the family breaks down that there should be intervention by the State and then only if it can be clearly demonstrated that the family has failed to reach certain standards of child care. In view of this, Federal legislation and legislation in all States and Territories defines the role of the parent as being the person who has the major responsibility for the upbringing of the child.
441. In order to minimise need for intervention by the State, the Federal Government in May 1995 announced increased funding of $12.3 million to provide assistance or support for families to deal with problems in family relationships, with violence and with support for children including adolescents.
442. The funding will be used to extend existing marriage and relationship education services. In particular, a community development officer will be placed in six of the highest need areas to assist people from non-English speaking backgrounds to make the best use of the relationship support services available for families. Family service programs will also be extended to regional and rural areas. Health and welfare measures are described under Part F, Basic health and welfare, below.
443. In the Australian Capital Territory, the Childrens Services Act 1986 supports the need to preserve the relationship between the child and his or her parents and the desirability of leaving the child in the home, as far as possible. The Act requires the Director of Family Services to provide assistance to parents and children for the purpose of promoting the physical, mental, moral, spiritual and social development of children in a normal and healthy manner. The guidelines contained in the Principles of Service of Family Services enhance the intent of the legislation.
444. In New South Wales the Children (Care and Protection) Act 1987, administered by the Department of Community Services, provides a legislative framework for action and service provision in the field of child protection and alternative care.
445. The objects of this Act are to ensure that children in need of care are provided with assistance and supportive services, the provision of that assistance and those services being based on the premises that:
children, for the full, harmonious development of their personalities, need love and understanding and, towards that end, should, wherever possible, grow up in the care and under the responsibility of their parents, but if that is not possible, in an environment of affection and moral security and, in the case of children of tender years, should not, except in exceptional circumstances, be separated from their parents;
continuing contact between children and their parents should be encouraged in situations where, pursuant to legal proceedings, children have been separated from their parents;
responsibility for the welfare of children belongs primarily to their parents but if not fulfilled, devolves upon the community; and
except in exceptional circumstances or pursuant to legal proceedings, there should be no interruption of relationships between children and their parents contrary to the wishes of the children and their parents.
446. The Northern Territory Community Welfare Act 1983 provides that the Family Matters Court should consider the responsibilities, rights and duties of parents when making decisions affecting children. In particular, in relation to Aboriginal children, the Act states that every effort must be made to arrange appropriate custody within the child's extended family. If that is not possible, effort must be made to arrange custody of the child with a person who has the correct relationship with the child according to Aboriginal customary law. If placement outside these structures must be made, then the court must take into consideration the views of the child's parents or other people who have the responsibility of the child in accordance with Aboriginal customary law.
447. In Queensland it is a principle of the Department of Family Services and Aboriginal and Islander Affairs that the family, as the fundamental unit of society, should be given the greatest possible protection and assistance. Parents should be strengthened and supported wherever possible in raising their children. It is the policy of that Department that intervention should only occur when a child is considered to be at significant risk of serious harm.
448. Under the Queensland Government Youth Policy, the Government is committed to developing safe and supportive family and community environments, providing strategies to address discrimination and promoting positive family and community relations. This includes:
developing policies, programs and services which recognise and respond to the social, cultural, ethnic and structural diversity of young peoples families and their social networks;
ensuring that Government programs and services provide appropriate safeguards to allow young people and their families to redress any related grievances or inequities and have them resolved; and
supporting family education and human relationship programs and services, including family mediation and counselling support.
449. In South Australia the Department of Family and Community Services is committed to the principle that the family is the best place to raise children whilst they remain safe. The Department maintains that the duties of parents are to protect the childrens health and well being, assist children to develop their physical, emotional and intellectual capacities, nourish their self-esteem and self-confidence, prepare them to take advantage of and to responsibly exercise their rights and responsibilities as citizens, and as far as possible, provide them with conditions favourable to grasping educational, occupational and other opportunities available to them in society. This policy is reflected in both the Childrens Protection Act 1993, the Community Welfare Act 1993 and the Young Offenders Act 1993.
450. In Tasmania it is the policy and practice of the Department of Community and Health to support parents in their responsibilities for caring for their children. This is considered to be the optimal way of providing for the best interests of the child.
451. In Victoria, the Children and Young Persons Act 1989 and the Intellectually Disabled Persons Services Act 1986 promote parental responsibility and seek to preserve and strengthen parent/child relationships as far as possible. In the case of the former Act, this holds true for both child protection services and the juvenile justice system. The Victorian Government policy on early intervention to assist children with developmental delay also clearly recognises the rights and abilities of parents to determine and provide appropriate support for their children.
452. The Office of Preschool and Child Care aims to support and reinforce parents' rights and capacity to make fully informed choices about forms of care and education for their children, and to reinforce parent participation in the development and monitoring of services used by their children.
453. In Western Australia it is the policy and practice of the Department for Community Development to support parents in their responsibilities for caring for their children. This is considered to be the optimal way of providing for the best interests of the child.
(b) Parental responsibilities (Article 18, paragraphs 1-2)
Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
International Year of the Family
454. The Federal Government used the International Year of the Family (IYF) to celebrate Australian families by promoting an increased understanding of their contribution to Australian society.
455. To communicate awareness of the International Year of the Family and its issues, a national communications strategy was developed and information and resources provided to individuals and organisations across Australia. Community awareness activities included:
national celebration activities;
a national media campaign;
the production and distribution of IYF community awareness material such as information kits, posters, badges, stickers and the IYF newsletter Focus on Australian Families;
the production of resource material such as the Family Book outlining Federal programs, services and initiatives for families; and
the co-ordination of promotional material by community groups, Government and business, including approval of use of the United Nations logo and monitoring of State IYF Secretariat activities.
456. The IYF initiatives culminated in the Australian Government Agenda for Families which provides a clear statement of the Federal Governments commitment to families, and a framework to direct future family policy and services.
457. Policy initiatives under the Agenda for Families were announced in May 1995 as part of the 1995-96 budget. The Agenda includes a new means-tested maternity allowance of $816 to be introduced from 1 February 1996. The allowance will be indexed to the Consumer Price Index and will provide a vital boost to family income when it is most needed, at the birth of a baby. About 85 per cent of women will be eligible for the payment which will be available to women both at home and in paid employment.
Balancing work and family
458. The Federal Government established the Work and Family Unit in the Department of Industrial Relations to oversee implementation of International Labour Organisation Convention 156, Workers with Family Responsibilities, (ILO 156) which Australia ratified in March 1990. The Unit was established, amongst other reasons, to examine a range of measures to assist workers with family responsibilities and directly facilitate the adoption of family friendly employment.
459. A Strategy for implementing ILO 156 across Federal Government Policies and Programs was endorsed by the Government in December 1992 and launched on 11 February 1993. The strategy is a plan of action to give practical effect to the Convention. Its objectives cover the following broad subject areas: discrimination, terms and conditions of employment, labour force access and participation, community services and planning, and vocational education and training.
460. The Work and Family Unit oversees the broad implementation of the strategy as well as implementation of the industrial relations component.
Freedom from discrimination for working parents
461. The Sex Discrimination Act 1984 prohibits employees from being dismissed on the ground of family responsibilities. Family responsibilities is defined as the responsibilities of an employee to care for or support a dependent child of the employee or any other immediate family member who is in need of care and support.
462. Part of the principal object of the Industrial Relations Act 1988 is to help prevent and eliminate discrimination on a range of grounds, one of which is family responsibilities. In performing its functions under the Act, the Australian Industrial Relations Commission is required to take account of the principles set out in the Workers with Family Responsibilities Convention 1981. In particular, the Commission must take account of those principles relating to preventing discrimination and helping workers reconcile their employment and family responsibilities. The Commission is also unable to certify or approve for implementation a workplace agreement if it believes that a provision of the agreement discriminates against an employee on a range of grounds, one of which is family responsibilities.
463. Section 150A of the Industrial Relations Act 1988 requires the Commission to review all Federal awards on a three yearly basis. The Commission is required to identify and take steps to remedy deficiencies including where award provisions do not provide for secure, relevant and consistent wages and conditions of employment, or are discriminatory, overly prescriptive, obsolete, outdated or not expressed in plain English.
464. Under the Industrial Relations Act 1988, it is also unlawful for an employer to terminate the employment of an employee for a range of discriminatory reasons, including the employee's family responsibilities, unless the reason is related to the inherent requirements of the position. A religious institution is not prevented from dismissing an employee on discriminatory grounds, however, provided that the institution is acting in good faith to protect the susceptibilities of adherents of that religion.
465. A pilot program for establishing a process to review awards is operating and the Human Rights and Equal Opportunity Commission is providing guidance to the parties to assist in the identification of both direct and indirect discrimination, including where awards discriminate on the basis of family responsibilities.
466. Outcomes from the pilot program have been considered by the Australian Industrial Relations Commission in the Third Safety Net Adjustment and Section 150A Review proceedings held in October 1995. Drawing on the experience of the pilot award reviews, the Australian Industrial Relations Commission has developed general guidelines to assist award parties in the section 150A process. The guidelines prepared by the Commission include a best practice guide on eliminating discrimination with particular advice on the prevention and elimination of both direct and indirect discrimination. The guide also includes a model anti-discrimination clause.
467. The Australian Industrial Relations Commission has decided that the third award level arbitrated safety net adjustment will be subject to a number of different tests, including that unless there are special circumstances warranting a different approach, the award is varied to insert the model anti-discrimination clause; and that, where the section 150A review of the award has not been completed, discussions between the award parties are continuing with attention to the removal of discrimination. The Commission has also said that, provided it is satisfied that there is no likelihood of agreement by the parties within a reasonable period, it may determine the matter by arbitration.
Maternity leave, adoption and parental leave
468. The Federal 1990 Parental Leave Test Case established minimum parental leave standards for Federal awards by extending the maternity and adoption leave standards to the case of paternity leave. The parental leave standards have largely been reflected in either awards under State industrial tribunals or State legislation. The standard provides for 52 weeks unpaid parental leave to enable both the mother and father to share leave to care for a child in the first year following birth or adoption. Employees are eligible after 12 months or more continuous service with an individual employer.
469. The Industrial Relations Act now establishes minimum entitlements for various conditions of employment, including parental leave. The Act provides for unpaid parental leave of up to 52 weeks which can be taken by both men and women workers, on a shared basis, to care for a newborn child. Except for a period of one week following the birth of the child, the leave taken by the mother and her spouse cannot overlap. The Act also provides for an analogous system of adoption leave. The entitlement to parental leave under the Act will be particularly beneficial for non-award employees, and those not covered by State legislation. Such employees have not previously had any general entitlement to parental leave.
470. At this stage, the majority of Australian women employed in the private sector do not have access to paid maternity leave. However, Federal Government employees with 12 months or more continuous service are entitled to a maximum period of paid maternity leave of 12 weeks and a total absence of 52 weeks. Where both parents are Federal Government employees, a total absence of 66 weeks parental leave is available.
Family leave test case
471. The Federal Government provided a mechanism, via the Industrial Relations Reform Act 1993, for consideration of a Family Leave Test Case by the Australian Industrial Relations Commission.
472. On 29 November 1994, the Commission handed down its decision which involved a two-stage approach. In the first stage employees were provided access to their own sick leave entitlements to care for ill family members and employers and employees are able to agree to more flexible access to up to one weeks annual leave to be taken in single days, make-up time arrangements and unpaid leave.
473. The second stage, to be implemented following further hearings which occurred in August 1995 considers other mechanisms such as: aggregation of existing award conditions relating to sick leave and compassionate/bereavement leave into an entitlement accessible to employees for looking after a sick family member; increasing flexibility with respect to use of rostered days off and part-time work; and a general entitlement to unpaid family leave.
Reform of the Family Law Act
474. Until 1995, the basic principle under the Family Law Act 1975 was that unless the Family Court orders otherwise, each of the parents was a guardian of the child and the parents had joint custody of a child who had not attained the age of 18 years. The Court had a broad power to make orders for the custody, guardianship or welfare of, or access to, a child having had regard to the welfare of the child as the paramount consideration.
475. The Family Law Reform Act 1995 replaces this part of the Act with a completely new part. The proposed new part is based on the concepts and terminology recommended by the Family Law Council in a letter of advice on the operation of the Children Act 1989 (United Kingdom).
476. The Act replaces the concept of custody and its companion notion of access and also removes the guardianship responsibilities conferred on parents under the previous legislation. The concept of custody especially has carried with it notions of ownership of children. In some cases, it has tended to lead to the belief that the child is a possession of the parent who is granted custody, to do with as that parent pleases including making the child available for access when that person pleases, despite court orders to the contrary.
477. The Act enacts provisions which give parents parental responsibility defined as all the duties, powers, responsibilities and authority which by law parents and guardians have in relation to children. Parents are no longer be the statutory guardians of the child but have parental responsibility conferred upon them. It is important to note that the concept of parental responsibility does not expressly confer any rights on the parents in respect of the child. There is, for example, no longer a right of custody or a right of access. Rather parents have a responsibility to discharge the obligation of parental responsibility in the best interests of the child. The Act also makes it clear that parental responsibility is not dependent on whether the parents are married or separated or whether they have never married or lived together.
478. The Act inserts an objects clause into the Family Law Act 1975 which provides that children should receive adequate and proper parenting to help them achieve their full potential. The Act makes it clear that this object is based on the following principles:
children have the right to know and be cared for by both parents;
children have the right of contact, on a regular basis, with both parents and any other person significant to the care, welfare and development of the child;
parents share the duties and responsibilities concerning the care, welfare and development of the child; and
parents should agree about the future parenting of the child.
Parenting Plans
479. The 1995 Act inserts a new Division in the Family Law Act 1945 to deal with parenting plans. The purpose of this Division is to encourage parents to agree about matters relating to children rather than have these matters judicially determined. Parents are directed, in reaching their agreement, to regard the best interests of the child as the paramount consideration. When coupled with the provisions dealing with primary dispute resolution, the signals given to parties by the 1995 Act is that an outcome should be arrived at by them with the assistance of a counsellor or through mediation.
480. A parenting plan can be registered in the court and if this is done the plan has effect as if it were an order of the court. Registration engages provisions in the Family Law Act 1975 setting out the obligations of the parties, notably in relation to residence and contact. Registration also signals that the provisions dealing with enforcement and sanctions are available. The requirements of a parenting plan are simply that it be:
in writing; and
made between the parents.
481. In general, the Family Law Act 1975 now states that a parenting plan may deal with:
residence of the child;
contact between the child and any other person significant to the child;
maintenance of the child; and
any other aspect of parental responsibility.
482. Other aspects of parental responsibility that may typically be covered by a parenting plan are:
education for the child;
religious observance;
naming for the child;
contact with the extended family;
health and medical matters in relation to the child;
sharing of information between the parties and contact between the parties in relation to matters concerning the child; and
death of a parent.
483. A court has the power to vary the provisions of a parenting plan if it considers that a variation is in the best interests of the child as well as the power not to enforce any provision of a plan if it considers that it is not in the best interests of the child. Because residence of the child is an important incident of parental responsibility, the 1995 Act makes provision to negate a parenting agreement if it purports to determine that a child is to live with a person who is not a parent of the child.
Parenting orders
484. A significant departure in the reforms from the earlier legislation is the type of orders the Court may make. A general order for the care, welfare or development of the child is now known as a parenting order, so called to emphasise it as an order dealing with the parenting of the child. It will have a number of components:
residence: stating who is to provide residence for the child;
contact: stating who may have contact with the child;
maintenance: stating the amount and who is to pay maintenance for the child; and
special purpose: stating any other matter that the court may include in the order.
485. A parenting order may be applied for by either or both the parents, the child or any other person concerned with the care, welfare or development of the child. The Court has a general power to make an order regarding the best interests of the child as the paramount consideration. A parenting order ceases to be in force when a child turns 18, marries or enters a de facto relationship.
486. Because residence is a very important incident of parental responsibility, before an order regarding residence with a person other than a parent can be made, the parties must have attended, unless special circumstances exist, a conference with a counsellor and the court must have considered a report by the counsellor.
487. There are general obligations created by residence and contact orders. A person must not remove a child from the care of the person in whose favour the residence order was made, refuse or fail to deliver a child to that person, nor interfere with any of the powers, duties or responsibilities that the person has under the parenting order. Equally, a person must not hinder or prevent any authorised contact a child is supposed to have under the parenting order. A person may be arrested if he or she contravenes the general obligations and the person must be brought before a court. The general obligations under parenting orders relating to the taking or sending of children from Australia have been re-enacted.
Maintenance of children
488. Further information on maintenance is provided in Part E (e), Family Environment and Alternative Care, Recovery of maintenance for the child, below.
Other financial support
489. The financial interests of children prior to reaching their age of majority (at 18 years) are able to be protected by the exercise of power by the courts and through the activities of the Public Trust Offices which exist in the various Australian jurisdictions. Moreover, if parents die intestate, or have failed to make adequate testamentary arrangements for their children, provisions exist to enable such children to claim their deceased parents estate.
Family support measures
490. In May 1995 the Federal Government launched the Justice Statement which makes a strong commitment to the importance of families in Australian society. At present over $21 million is committed to more than 60 community-based family support organisations every year. Around 150,000 clients are assisted annually through marriage/relationship counselling and education, skills training for family relationships and mediation within families facing difficulties, particularly to assist with adolescent crises. The new or expanded initiatives announced in the statement included the following:
funding for specialist workers in childrens and youth law to assist community legal centres to meet the demand for advice and advocacy for children and young people; and
increased funding for marriage and relationship preparation and measures to extend access to a range of family support services, particularly for people in regional and rural areas and for people of non-English speaking backgrounds.
491. The Australian Capital Territory Family Services child care and protection policy states that parents have the primary responsibility to protect and meet the developmental needs of their own children. Family Services role is to provide such assistance, guidance and, where necessary, intervention to ensure that parents can fulfil their duties and responsibilities. Where such duty is not performed or is impaired, Family Services has the role of delivering services that protect children from all forms of abuse, neglect and exploitation.
Parental support
492. The provisions of Article 18 are implemented by the New South Wales Department of Community Services. In addition to administering the child protection provisions of the Children (Care and Protection) Act 1987 (see Part E (i), Family environment and alternative care, Abuse and neglect, below), the Department of Community Services provides support services for parents and legal guardians in the performance of their child-rearing responsibilities and administers a funding and licensing scheme for child care services in New South Wales. The Department has initiated Family Week as an affirmation of the importance of families.
493. The Department is taking some experimental measures under the Children (Parental Responsibilities) Act 1994 to ensure that parents accept their responsibilities for children out on the streets. These experimental measures involve the piloting of parts of the legislation in the Orange and Gosford districts. The pilots are intended to continue until independent evaluation of the model is undertaken. This evaluation was prescribed by the legislation to occur 12 months after the introduction of the legislation in December 1994.
Family Work Program
494. The Family Work Program of the New South Wales Department of Community Services is directed to supporting parents in their role as caregivers, ensuring the safety and protection of their children and providing appropriate advice and guidance to their children. Through the Family Work Program, the Department provides direct services to assist families with identified problems which constitute a threat to their viability or a potential risk to children. The range of services provided includes assessment, counselling, mediation, financial assistance and referral to other suitable agencies. The Department also arranges voluntary foster care for children in situations where the family is temporarily unable to care for them.
495. The Community Welfare Act 1983 indirectly enforces the role of the parent or guardian as being the person who has the major responsibility for the upbringing of the child. Where such a duty is not performed or is impaired, the State has the responsibility to advocate for the child and ensure he or she receives adequate care and protection.
Parental Responsibilities
496. The Victorian Government Family Support Program acknowledges that parents or legal guardians are the principal caregivers to children and have the primary responsibility for their upbringing in accordance with the best interest of the child. Two principles underpin the redevelopment of early parenting and family support services in Victoria. These are:
the influence of the family is of such significance that a childs optimum health and development is dependent on the nurturing environment of the family; and
families have the primary responsibility to nurture and care for children and other family members in a loving, secure and non-violent environment. Family refers to any configuration of people who have care of a child or children and includes single parents of either sex, couples, foster parents, grandparents and guardians.
497. The Queensland Childrens Services Act 1965 views parents as having common and equal responsibilities in relation to the upbringing and development of the child. Part V of the Childrens Services Act 1965 relates to the giving of assistance to children in need. The Act also gives the Director of the Department of Family Services and Aboriginal and Islander Affairs the power to use his or her discretion in providing assistance to a child or family deemed to be in need. When such assistance involves the expenditure of money, the power conferred upon the Director is subject to appropriation by Parliament of moneys for the purpose.
498. It is the policy of the Department of Family Services and Aboriginal and Islander Affairs, wherever possible, to provide assistance, sometimes by way of referral, to families and children in contact with the Department. In the giving of assistance, the principles of the best interests of the child and where applicable, respect for the views of the child are adhered to. The Department of Education is encouraging the involvement of parents in the development of school programs as well as in decision making within the schools. Schools are encouraged to set up representative school councils so parents may have meaningful input to the school.
South Australia and Tasmania
499. In South Australia and Tasmania the policy of the Department of Family and Community Services and the Department of Community and Health respectively ensure that children receive adequate parental care and are protected against maltreatment. These Departments have a responsibility to promote a network of services which assist parents to carry out their responsibilities.
500. In Western Australia the Department of Community Development, under the provisions of the Community Services Act 1972, provides a range of parent and family services. These include Family Support Services which fund over 70 agencies to provide parenting support to disadvantaged families (for example, outreach, self help groups, playgroups and counselling), a Parent Help Centre, the Family Court Counselling Service, and other services such as intervention for domestic violence and parent adolescent conflict.
(c) Separation from parents (Article 9)
Article 9
1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the childs place of residence.
2. In any proceedings pursuant to paragraph 1 of the present Article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the childs best interests.
4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.
501. Part E (b), Family environment and alternative care, Parental responsibilities, above addresses separation from parents where parents are living separately.
502. The Aboriginal child placement principle and the fourth term of reference of the inquiry by the Human Rights and Equal Opportunity Commission into the past compulsory separation of Aboriginal and Torres Strait Islander children from their families is referred to at Part E (f), Children deprived of a family environment, below.
503. Many women are in situations where court-ordered access arrangements require them to meet or deal with a former partner who behaves violently. Orders allowing a father to collect his children from the family home may create difficulties where the mother has legal protection from apprehended violence by the father. Confronted with this problem, the Family Court sometimes has provided for the handover of children at a police station. The Federal Government recognises that such arrangements are far from desirable for parents or children. Even where compliance with violence protection orders is not an issue, recently separated parents sometimes experience conflict and difficulty in arranging access visits.
504. Accordingly, the Government announced in May 1995 that it will establish a national pilot program of facilitated handover and visiting centres in each State and Territory, for safe transfer of children between separated parents where there is a background of conflict in the parental relationship. The Government also will provide funding for family skills training for parents using the handover and visiting centres.
505. The handover and visiting centres will be of benefit to both women and men who need assistance with arrangements for child access in order to avoid conflict and tension. While use of these centres will often help to defuse potentially violent situations arising over shared parenting arrangements, the Federal Government is also amending the Family Law Act to ensure that violence is taken into account properly when parenting arrangements are considered by the Family Court. See further Part E(b), Family environment and alternative care, Parental responsibilities above.
506. In the Australian Capital Territory the factors taken into account when children are placed outside the family situation are outlined in the Childrens Services Act 1986. They include:
the need to strengthen and preserve the relationship between the child and his or her parents and other members of his or her family;
the desirability of leaving the child in his or her own home; and
the desirability of allowing the education, training or lawful employment of the child to be continued without interruption or disturbance.
507. The primary aim in placing children outside their own families is a supportive and rehabilitative approach with the ultimate focus on restoration of the child to the family, wherever possible. Where such action has been taken by virtue of the Act which results in the child being separated from the home and placed in a shelter or an approved home the Act outlines several checks and procedures which, if not satisfied, will result in the automatic restoration of the child to the parents on release. The Act provides that the Community Advocate should review the circumstances of children in care on an annual basis and report to the court.
508. The Children's Services Act 1986 specifies that when a person authorised under section 70 of the Act takes a child into care, all reasonable steps must be taken as soon as possible to notify the parent, whether resident in the Territory or not, of the action taken and the whereabouts of the child.
509. The Family Services Branch policy on substitute care provides that children who are in such care will be given the right and the opportunity to maintain contact with and have information about parents, siblings, extended family, friends and previous caregivers.
510. Where children are sentenced to a period of imprisonment in the Australian Capital Territory, their parents are sent a letter notifying them of the fact that their child is in custody and of visiting hours.
511. At any time after a child has been taken into custody, a parent of a child, or a person having custody of the child may apply to a magistrate to have the child released (Childrens Services Act s75(2A)). The Community Advocate may also direct that a child be released (Childrens Services Act s75(1)). If the child, his or her parents, or a person having custody of the child applies to a magistrate to be heard, a magistrate may not proceed by way of any custody order, until he or she has heard the parent, child or person, whether by way of a formal hearing or otherwise (Childrens Services Act s75(5)).
512. The Children (Care and Protection) Act 1987 provides for the separation of children from their parents where abuse or neglect may be involved. All such action is subject to judicial review under the Act. The Act provides that the welfare and interests of children are to be given paramount consideration, and general principles to be considered. Provision is made under the Act for the child, a parent or person responsible for the child or other interested parties to appear and be represented before the childrens court in such cases.
513. The New South Wales Department of Community Services has a statutory responsibility to investigate notifications of child abuse and neglect and to take appropriate action aimed at protecting the child. The Departments primary role is to provide assessment, case co-ordination, monitoring and referral. The Departments child protection intervention is focussed on the child as the primary client but also considers the importance of a family to a childs well-being. Services are directed at maintaining family bonds and relationships whenever possible and in the best interests of the child.
514. In the majority of child protection cases, children remain with their parents after risk factors to the childs safety have been addressed. Community support services are utilised to assist the family and to promote the childs recovering from abuse and neglect.
515. In a minority of cases it is necessary to initiate legal proceedings in order to protect children from abuse or neglect. In these cases the Children (Care and Protection) Act 1987 requires that the court must be satisfied that any order made in respect of a child will result in a significant improvement in the standard of care being given to the child and further that the court must consider:
the need to protect the welfare of the child;
the views of the child;
the importance of encouraging continuing contact between the child and persons responsible for the child; and
the importance of preserving the particular cultural environment of the child.
516. There are some avenues of appeal available to a parent and/or child against decisions whilst in care. For example reviews pursuant to section 75 of the Act, appeals to the Community Services Appeals Tribunal, complaints to the Community Services Commission and the role played by the Official Visitors.
517. Under the Children (Criminal Proceedings) Act 1987, a Childrens Court may, if it has found a child guilty of an indictable offence, subject to the provisions of the Sentencing Act 1989, make an order committing that person for such period of time (not exceeding two years) as it thinks fit, to the control of the Minister administering the Children (Detention Centres) Act 1987.
518. Under the Children (Criminal Proceedings) Act 1987, a court, in exercising criminal jurisdiction with respect to children, shall have regard to the principle that children have a right to be heard and a right to participate in the processes that lead to decisions that affect them. In addition, persons directly interested in the proceedings may be given the opportunity to make their views known.
519. Detention centres in New South Wales, like those in the Australian Capital Territory notify parents by mail of the fact that their child is in custody and of visiting hours. The Juvenile Justice Policy and Procedural Manual further states that on arrival at a detention centre, a detainee will be assisted to make a telephone call to his family to inform them of his or her whereabouts and visiting arrangements etc at the detention centre.
520. The Community Welfare Act 1983 outlines the circumstances where a child can be separated from its parents and the factors to be considered when ordering such a separation. There are also Principles of Substitute Care which are taken into account by the Family, Youth and Childrens Services Division of the Department of Health and Community Services. The primary approach in moving children outside their own families is a supportive and rehabilitative one with the ultimate focus on restoration of the child to the family where possible. The Community Welfare Act 1983 provides that special steps are to be taken to place Aboriginal children with members of their extended family in preference to other care.
521. The Community Welfare Act 1983 provides for the procedure to be adopted by an authority which takes a child deemed in need of care into custody. This includes a requirement to notify the Minister of such actions. The Act provides that the Minister must notify the parents of a child of the childs removal and placement into custodial care and of any proposed subsequent action.
522. The Community Welfare Act 1983 established the Family Matters Court to hear matters in relation to the taking into custody of children. Parents or guardians of the child are deemed to be parties to the proceedings, and there is provision in the Act requiring parents or guardians to attend the hearing and warrants to issue if they refuse to do so. If their attendance is not possible in the circumstances, there are procedures in place to ensure the parents are informed of the proceedings.
523. It is the policy of the Queensland Department of Family Services and Aboriginal and Islander Affairs that, wherever possible, children should be cared for by their immediate family or a family member. Only where this cannot be achieved or is not thought to be in the best interests of the child, should the child be placed outside its family. Under the Childrens Services Act 1965 a child is deemed to be in need of care and protection should they be abused or neglected upon application to the court for the entry of a child into the Care and Protection of the Director-General.
524. Pre-hearing conferences have recently been introduced into larger Childrens Courts. These conferences provide a forum for mediation of disputes between parents and departmental officers responsible for applications for Care and Protection. During such conferences, parents may themselves, or through their solicitors, present evidence of change of circumstances, request changes to case plans, dispute comments made in affidavits and suggest alternatives to a statutory order.
525. The role of the mediator in these conferences is to encourage the exchange of information and facilitate negotiation between the parties in the best interests of the child. If satisfactory compromise cannot be reached then the Childrens Court will determine the outcome of the custody and guardianship of the child.
526. Central to the policies of the South Australian Department of Family and Community Services on families is the recognition that the family is the best means of providing care, socialisation and continuity of relationships for the child. Birth families are acknowledged as having the first responsibility to provide care for children, and families have the right to choose the kind of care they will give their children as long as the childs well being is maintained.
527. Where parental responsibility is not carried out, or when parental care is considered to be lacking and may be harmful to the child, the Department has an obligation to take appropriate action to protect the child. Any decision to intervene in a relationship between a parent and child is made as part of the judicial process. Any intervention undertaken on behalf of children must be child focussed with the care and protection of the child being the paramount consideration.
528. The objects of the Childrens Protection Act 1993 are contained in section 3 of the Act which provides:
3(1) The object of this Act is to provide for the care and protection of children and to do so in a manner that maximises a childs opportunity to grow up in a safe and stable environment and to reach his or her full potential; and
(2) The administration of this Act is to be founded on the principles that the primary responsibility for a childs care and protection lies with the childs family and that a high priority should therefore be accorded to supporting and assisting the family to carry out that responsibility.
529. The principles to be observed in dealing with children are contained in section 4 of the Act which provides:
4(1) In any exercise of powers under this Act in relation to a child -
- (a) the safety of the child is to be the paramount consideration; and
- (b) the powers must always be exercised in the best interests of the child.
(2) Serious consideration must, however, be given to the desirability of -
- (a) keeping the child within his or her family; and
- (b) preserving and strengthening family relationships between the child, the childs parents and other members of the childs family, whether or not the child is to reside within his or her family; and
- (c) not withdrawing the child unnecessarily from the childs familiar environment or neighbourhood; and
- (d) not interrupting unnecessarily the childs education or employment; and
- (e) preserving and enhancing the childs sense of racial, ethnic, religious or cultural identity, and making decisions and orders that are consistent with racial or ethnic traditions or religious or cultural values.
(3) If the child is able to form and express his or her own views as to his or her ongoing care and protection, those views must be sought and given serious consideration, taking into account the childs age and maturity.
(4) All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.
530. Under the Childrens Protection Act 1993 the Department has a duty to investigate notifications of child abuse and neglect. If the Departments Minister is of the opinion that a child is at risk and that arrangements should be made to secure the childs care and protection, he or she must cause a family care meeting to be convened in respect of the child. The childs family are invited to attend the meetings, the purpose of which is provide a proper opportunity for the childs family, in conjunction with a Care and Protection Co-ordinator to make informed decisions as to the arrangements for best securing the care and protection of the child.
531. A child may be in need of care and protection because:
a guardian or a person residing with the child has maltreated or neglected the child to the extent that the child has suffered or is likely to suffer physical or emotional injury, or to the extent that the childs physical, mental or emotional development is in jeopardy;
the guardians of the child are unable or unwilling to exercise adequate supervision and control over the child;
the guardians of the child are unable or unwilling to maintain the child; or
the guardians of the child are dead, have abandoned the child, or cannot after reasonable inquiries be found.
532. In any of the above circumstances, the Minister may apply to the Childrens Court for a declaration that the child is in need of care and protection.
533. Should a child be separated from its parents by an action initiated by the State, the Department provides the parents or other appropriate persons with essential information concerning the childs circumstances and whereabouts, unless the provision of such information would be detrimental to the childs safety and well being.
534. In Victoria, the Children and Young Persons Act 1989 establishes clear legal processes for State intervention which may result in the separation of children from their parents. Appeal rights exist for children and their parents against State intervention. The Adoption Act 1984 also contains several safeguards concerning the separation of children from their parents.
535. While there are no specific provisions in the Intellectually Disabled Persons Services Act 1986, the policy of the Department of Health and Community Services gives emphasis to maintaining parental involvement when children live apart from their parents. The decision for a child to live separately from parents, except in those cases where there are child protection concerns, rests predominantly with the parents and the proposed caregiver.
536. The Office of Corrections offers a number of programs which enable children separated from a parent by imprisonment to maintain regular and direct contact with the parent. Regulations dealing with visits of children to parents in prison are made under the Corrections Act 1986. The importance of allowing prisoners to maintain contact with their children is acknowledged, and visits of prisoners children are not generally affected by any disciplinary penalties that may be imposed for breaches of prison regulations. Prisoners children may be permitted to visit even where no other contact visits are allowed.
537. The Western Australian Department for Community Development has the responsibility under the Child Welfare Act 1947 for the protection of children from all forms of maltreatment. This Act prescribes departmental practice in intervening with families to protect children and requires that application be made to the Childrens Court of Western Australia when intervention against the wishes of parents is considered necessary.
538. All parties, including the child, are able to participate in legal proceedings. The Department reserves involuntary intervention as a means of last resort. Its Child Protection Policy reflects this stance. The following excerpts are indicative:
The family has prime responsibility for the care and protection of children and is the usual focus for departmental intervention; and
Prevention of harm and exploitation is the best form of child protection where appropriate, family support, mediation and treatment services will be provided.
539. If a child is found to be in need of care and protection by the Court, the Departments priority is to work with the family with the aim of returning the child to parental care. If this is not possible the childs relationships with his or her parents and other family members are maintained and developed to the maximum extent consistent with the child's protection. Proposed new legislation will clearly specify this policy through the inclusion of principles to this effect, more restrictive grounds for intervention and a more flexible range of orders available to the court.
(d) Family reunification (Article 10)
Article 10
1. In accordance with the obligation of States Parties under Article 9, paragraph 1, application by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicant and for the members of their families.
2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances, personal relations and direct contacts with both parents. Towards that end and in accordance with the obligation of States Parties under Article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognised in the present Convention.
540. The Federal Migration Regulations include provisions for visas and entry permits to facilitate the entry to Australia of:
a dependent child for the purpose of re-unification with an Australian citizen or permanent resident parent; and
persons wishing to visit a close family member such as a parent or child who is an Australian citizen or permanent resident.
541. The objective of the first category is to reflect the immigration principle of close family reunion through facilitating the permanent entry of a dependent child of an Australian citizen or permanent resident.
542. In recognition of the importance of reuniting children overseas with their parent or parents in Australia, child visas are afforded priority in processing by Australian missions overseas. Where a minor child is not entering Australia into the care of both parents, the regulations stipulate that the Minister must be satisfied that the grant of a visa would not prejudice the rights and interests of any person who has custody or guardianship of, or access to, the child.
(e) Recovery of maintenance for the child (Article 27, paragraph 4)
Article 27
4 States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements , as well as the making of other appropriate agreements.
543. The Federal Family Law Act 1975 applies in all States and Territories. In Western Australia, however, ex-nuptial children are not covered by the Act, but by compatible State legislation. The object of the provisions in the Family Law Act 1975 relating to the maintenance of children is that children should have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents and that the parents share equitably in the support of their children. As such the provisions are directed towards ensuring the provision of adequate levels of maintenance for children.
544. Where the Family Court makes an order for maintenance for a child and this order is not complied with, the Family Law Rules provide for its enforcement. Enforcement may be by garnishment, seizure and sale of personal property, sequestration of estate and sale of real property.
545. Child maintenance orders may not have effect if the child is 18 or older unless the child has special needs due to education, training, mental or physical handicap. In the absence of these special needs, any order of the court ceases to be in force once the child turns 18. An order for child maintenance may be applied for by either or both the parents, the child, or any other person who is interested in the care, welfare or development of the child.
546. A step-parent has a duty to maintain a child only if the step-parent is a guardian of the child. This must be conferred by order of a court. Alternatively, the court may order that it is proper for a step-parent to have the duty to maintain the child. The circumstances where such orders are made is rare and the court has declined to make an order where there is no evidence that financial support by the birth father was not available because no efforts had been made to locate the birth father. Also, even where the court finds that it is proper that the step-parent have the duty to maintain the child, if that duty can be fulfilled by the birth parents, the court will not make an order against the step-parent. (Dodge and Krapf, in the marriage of (1991) FLC 78, 442.)
Child Support Scheme
Description of the scheme
547. The Child Support Scheme represents a major initiative by the Federal Government directed towards ensuring, as far as practicable, that children of separated parents continue to receive financial support from both of their parents in accordance with the parents financial capacities. The principle object of child maintenance is to ensure that children have their needs met by parents and that parents share equitably in the support of their children. Thus, the principle upon which child maintenance is based is that parents have the primary duty to maintain their child. That duty is stated to have priority over all of a parents commitments, other than those necessary to enable the parent to maintain himself or herself and any other child the person has a duty to maintain. The duty is not of a lower priority than the duty to maintain any other person and is not affected by the duty of another person, such as a step-parent, to maintain the child or indeed the child's entitlement to an income tested pension, allowance or benefit.
548. The Child Support Scheme was introduced in two stages by legislation in 1988 and 1989. The Child Support (Registration and Collection) Act 1988 was enacted to ensure that children receive from their parents the financial support that the parents are liable to provide and that periodic amounts payable by non-custodial parents towards the maintenance of their children are paid on a regular and timely basis. This Act created the Child Support Agency in the Australian Taxation Office whose role is to register, collect and enforce payment of child maintenance as stipulated in a court order or court registered agreement. Once a child maintenance liability is registered with the Agency, it is the Agency and not the payee who is responsible for collection of the monies. The primary means used by the Agency for collecting such monies is automatic deduction from wages or salary. Where this is not possible the payer is liable to make payments directly to the Agency each month.
549. The Child Support (Assessment) Act 1989 provides for assessment of child support liabilities through a formula assessment by the Child Support Agency. This Act applies to children born after 1 October 1989 or who are full brothers and sisters of children born on or after 1 October 1989 or whose parents separated on or after 1 October 1989 (if they lived together). Parents who are unable to make their own private arrangements are more likely to seek a formula based assessment for child support. People who apply for a payment of sole parent pension or additional family payment from the Department of Social Security are, with some exceptions, also required to apply for an assessment.
550. The assessment is made by applying the formula to the non-custodial parents taxable income after an allowance for self support. Formula assessment also takes into account the custodial parents taxable income (where there is any) but this is disregarded where earnings are below the yearly equivalent of average weekly earnings plus an additional amount representing child care costs for each child under 12.
551. Where a liability is registered with the Child Support Registrar for collection it becomes a debt due to the Federal Government under the Child Support (Registration and Collection) Act 1988. The custodian is not entitled to, and may not take action to enforce payment of, the outstanding debt. This responsibility rests with the Child Support Registrar. The Child Support Registrar may use the most appropriate or a combination of the following:
intercepts of amount owing by the Federal Government;
collection from third parties;
collection of outstanding debt through salary deductions;
arrangements for payment; or
legal action.
552. However, a characteristic of the Child Support Scheme is that a child support liability assessed by the Child Support Agency under the formula does not prevent a custodian from collecting the maintenance payments themselves. By recognising that many people are able to make an arrangement for payment which does not necessitate collection by the Agency, once the level of a liability has been established under the formula, the Scheme ensures that only those cases where collection may be a difficulty will require registration with the Agency for collection. The right of parents to collect child support privately, even where the custodian is receiving social security payments, is one of the hallmark features of the Child Support Scheme.
Evaluation of the Child Support Scheme
553. Since the establishment of the Child Support Scheme there has been a significant improvement in the maintenance of children (Final Report of the Child Support Evaluation Advisory Group, 1992). For example:
seventy-four per cent of liabilities registered with the Child Support Agency are currently being collected; and
in 1992-93 the average value of a formula assessment was $46.34 per child per week compared with $42 per child per week for a court assessment. It is estimated that the average value of a court order would have been $31 per child per week without the Scheme.
554. When the Joint Select Committee, appointed in March 1992 to inquire into and report on aspects of the Family Law Act 1975, tabled its Report in November 1992, the Report contained a number of references to the Child Support Scheme. Examination of the Scheme had not been part of the terms of reference for the inquiry but since there was a considerable amount of criticism of aspects of the scheme, particularly the level of payments required which were not perceived as being adjusted to accord with the capacity of the non-custodial parent to pay, further detailed examination of the scheme was considered to be desirable. Accordingly, the Federal Government established the Joint Select Committee on certain Family Law Issues in May 1993. One of its major tasks was to investigate the operation and effectiveness of the Child Support Scheme. The Committee reported in November 1994. In an interim Government response which was tabled in Parliament in 29 March 1995 the Government indicated that certain administrative issues would be dealt with by the Child Support Registrar in order to give effect to some of the reports recommendations. The final Government response is scheduled to be tabled no later than the first half of 1996.
Further improvements
555. The Government continues to monitor and improve the Child Support Scheme. Amendments made in 1992 for example introduced a penalty for underestimating taxable income. Further amendments which are currently expected to come into effect in June 1995 enable social security clients who presently have their child support collected by the Child Support Agency to opt for private collection.
Recovery of maintenance abroad
556. Australia is a party to a number of international agreements designed to ensure the recovery of maintenance from those responsible for its payment.
557. On a bi-lateral basis, Australia is a party to arrangements with some 30 countries which allow overseas maintenance orders and agreements to be registered and enforced in Australia pursuant to these orders Australian orders and agreements can be transmitted for registration and enforcement overseas.
558. Australia has signed the United Nations Convention on the Recovery of Maintenance Abroad (UNCRAM) which entered into force in Australia on 14 March 1985. This treaty allows a claim for maintenance to be transmitted between participating countries. It also allows for an order for the payment of maintenance to be obtained and enforced in the country in which a person liable to pay maintenance currently resides.
559. Regulations under the Family Law Act 1975 operate to give effect to the above mentioned bi-lateral arrangements and to UNCRAM.
560. Australia is taking steps to conclude bi-lateral arrangements with those countries in respect of which none currently exists. It is also participating in work by the Hague Conference on Private International Law in developing a new multilateral Convention on maintenance obligations.
561. Family Services Branch policy and procedure maintain that parents have a responsibility for the financial support of their children until their children have an independent income. The Childrens Services Act 1986 provides for contributions by parents (section 99) whereby the court may order the parents of the child to pay such amounts by way of contribution to the cost of care of the child. Such costs may not exceed the amount paid under Child Care Agreements (section 94) entered into between the Director of Family Services and the parent of the child where such agreements include a financial contribution component by the parent of the child.
562. The Maintenance Act of the Northern Territory picks up residual matters not covered by the relevant Federal maintenance scheme. Section 14 of this Act allows for the court to order that maintenance be provided by the non-custodial parent of a child where previous maintenance was not adequate or the defendant is about to leave the Northern Territory and the maintenance provisions are not adequate.
563. Section 26 of the De Facto Relationships Act provides for the acknowledgment of responsibilities accrued toward children arising out of a de facto relationship by enabling the court to order the parent not having custody of the child to make maintenance payments.
564. With regard to the recovery of maintenance for children, the Community Welfare Act 1972 section 98, states that:
The near relatives of any child (including a child under the guardianship of the Minister), shall be liable to pay for, or contribute towards the cost of maintenance of the child according to their respective financial capacities.
The parents of a child shall be primarily liable under subsection (1) to pay for the maintenance of the child and any step-parent of the child shall be liable to pay for, or contribute towards, its maintenance only in the event of the death, disappearance (reasonable inquiries having been made) or financial incapacity of the parents or any combination of those circumstances applying in relation to the parents.
565. The Department has a statutory right to collect maintenance from the parents of children who are in the care of the State, (however this precludes collection of maintenance from parents of children who are young offenders under the Young Offenders Act 1993, and those who have signed a consent for adoption or who have been adopted or are in care pending adoption).
566. Where a person who has financial responsibility for a child lives in a State different from the child the above Act provides that if the defendant is resident in or proceeding to another Australian State then a request can be sent requesting that the order be made enforceable in that State (section 200). Where a person who has financial responsibility for a child is living in or proceeding to a reciprocating country, the Collector may send to an appropriate authority a request that the South Australian order be made enforceable in that reciprocating country (section 211).
(f) Children deprived of a family environment (Article 20)
Article 20
1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance by the State.
2. States Parties shall in accordance with their national laws ensure alternative care for such a child.
3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a childs upbringing and to the childs ethnic, religious, cultural and linguistic background.
The Youth Social Justice Strategy and Supported Accommodation Assistance
567. The Government has set in place a comprehensive package of measures to assist disadvantaged young people. This includes initiatives relating to accommodation for homeless youth, income support, employment, education, health and other services.
568. These measures are discussed under Part F (e), Basic health and welfare, Standard of living.
Aboriginal child placement principle
569. Previous Federal, State and Territory Government assimilationist policies are discussed under Part H(d), Special Protection Measures, Children belonging to a minority or an indigenous group, below. Currently, there is acceptance by all State and Territory Governments of the Aboriginal placement principle. The principle is that Aboriginal and Torres Strait Islander children who are unable to be cared for by their parents ought to be placed, wherever possible, with their own immediate family and community, or, failing that, elsewhere in the Aboriginal community. Aboriginal and Torres Strait Islander children are only placed with non-Aboriginal guardians as a last resort. The principle is generally adhered to in practice in all States and Territories although it is sometimes difficult to adhere to particularly in isolated parts of the country where resources are limited.
570. Although the recognition of the child placement principle is primarily the responsibility of the States and Territories, the Federal Government has been involved in the support of the principle both through policy development and funding. The Principle was developed in 1980 by Federal Government departments, including the then Department of Aboriginal Affairs, and was endorsed by the Federal Government and the States and Territories at the Council of Social Welfare Ministers in 1984 in the following form:
571. It is recommended that in the foster placement of an Aboriginal child a preference be given, in the absence of good cause to the contrary, to a placement with:
a member of the childs extended family;
other members of the childs Aboriginal community who have the correct relationship with the child in accordance with Aboriginal customary law; or
other Aboriginal families living in close proximity.
572. Various Government reports have supported the principle and called for it to be established in legislation in all Australian jurisdiction. Among them was the Australian Law Reform Commission Report on the Recognition of Aboriginal Customary Laws which was issued in 1986. This report is currently under review by Government officials for the information of the Standing Committee of Attorneys-General.
573. The Department of Human Services and Health provides funds to the Aboriginal and Islander Child Care Agencies to assist them to carry out their functions in accordance with the principle.
574. As referred to in Part A, Aboriginal and Torres Strait children, the fourth term of reference of the inquiry by the Human Rights and Equal Opportunity Commission into the past compulsory separation of Aboriginal and Torres Strait Islander children from their families, is an examination of current laws, practices and policies with respect to the placement and care of Aboriginal and Torres Strait Islander children and the provision of advice on any changes required.
575. In the Australian Capital Territory Family Services Principles of Placement Selection ensures that when a child is deemed to be in need of care, placement with relatives is considered as the first choice unless such placement is not available or the child's safety cannot be guaranteed. Placement with friends or members of the child's tribal or cultural group will also be considered. Family Services funds several non-government agencies to operate a range of foster care and residential care programs to meet the needs of children assessed to be in need of care. These placements are supervised and reviewed regularly. Family Services also operates a substitute care program. Family Services directly arranges, provides financial assistance and supervises foster care or residential placements for children on care orders or at risk of being declared Children in Need of Care.
576. In New South Wales the provisions of Article 20 are implemented through the Substitute Care Program administered by the Department of Community Services, in accordance with the Children (Care and Protection) Act 1987. When necessary, the Department of Community Services will take direct responsibility for the provision of care for a child. The Department provides a range of options for care of children within the Substitute Care Program. The Department directly arranges, provides financial assistance and supervises foster care or residential care placements for children who are under the guardianship of the Minister. Section 87 of the Act refers to the NSW Aboriginal Placement Principle.
577. The Department funds and licenses a range of agencies that provide alternative care for children in New South Wales. Administrative procedures have been developed that require all placements of children in alternative care to be supervised and reviewed regularly. In other circumstances the Department is able to provide financial assistance to the carers towards the cost of caring for a child. The Children (Care and Protection) Act 1987 provides that:
The Director-General may, in respect of any child in alternative care other than a ward or protected person, grant an allowance to any person having the care of the child for any period during which the child is in that persons care.
578. Plans are underway to establish group homes and foster support services which will be conducted by Aboriginal people for Aboriginal children at risk of becoming institutionalised.
579. The Non-parental Care Allowance is an administrative arrangement to enable children to be placed within their own family or social networks and to avoid children coming into more structured forms of substitute care. The Community Welfare Appeals Tribunal has been established to hear complaints and appeals against decisions made on behalf of children.
580. The Community Welfare Act 1983 empowers the Minister for Health and Community Services to declare a child in need of care. A child is defined to be in need of care where:
the parents, guardians or the person having the custody of the child have/has abandoned him or her and cannot, after reasonable inquiry, be found;
the parents, guardians or person having the custody of the child are unwilling or unable to maintain the child;
the child has suffered maltreatment;
the child is not subject to effective control and is engaging in conduct which constitutes a serious danger to his or her health or safety; or
being excused from criminal responsibility under section 389 of the Criminal Code, he or she has persistently engaged in conduct which is so harmful or potentially harmful to the general welfare of the community measured by commonly accepted community standards as to warrant appropriate action under the Community Welfare Act 1983 for the maintenance of those standards.
581. In Queensland the special protection and care provided to a child temporarily or permanently deprived of his or her family environment may be met by one of the following options:
emergency short-term or medium-term foster care;
formal long-term alternative care;
transfer of guardianship to care providers;
adoption; or
residential care.
582. All foster parents must be registered carers under the Childrens Services Act 1965. Foster parents must undergo regular training and have regular reviews in relation to their parenting of children placed in their day-to-day care. Foster parents receive a weekly allowance from which they are expected to provide adequate food, clothing and education for the child. For children who cannot return to their family within appropriate time limits, an alternative placement offering life-time lasting relationships needs to be sought. This placement needs to be made within the shortest possible time.
583. The Child Placement Principle is a major protective services policy document providing a working framework for both staff of the Department of Family Services and Aboriginal and Islander Affairs and the Aboriginal and Islander Child Care Agencies in Queensland. In accordance with the Child Placement Principle, it is the policy of the Department, wherever possible, to place sibling children together in alternative care and to place Aboriginal children with Aboriginal care providers and Torres Strait Islander children with Torres Strait Islander care providers.
584. The Department of Family Services and Aboriginal and Islander Affairs has recently undertaken extensive consultation upon a review of the Children's Services Act 1965. It is intended that new legislation to replace the Act will contain provisions relating to Aboriginal and Torres Strait Islander children which are consistent with the Child Placement Principle.
585. Children with intellectual disabilities whose parents are unable or unwilling to exercise their guardianship role, or who are at significant risk of harm, may be taken into the care of the Director-General pursuant to the provisions of the Childrens Services Act 1965. The Division of Protective Services and Juvenile Justice, under its Protective Services program, administers alternative care arrangements for children under care orders who have been separated from their family. Alternative care options include foster care and licensed residential care.
586. In South Australia a range of services is provided by the Department of Family and Community Services which provide specialised assistance to families to assist them to remain intact and able to care for their own children. Where this cannot continue and the child cannot remain living with his or her family, either temporarily or permanently, provision for alternative care of the child is provided under the Community Welfare Act 1973. These alternatives include adoption, long and short term foster care, respite care and residential care.
587. The principles contained in Article 20 are incorporated in the Service Co-ordination Manual of the Community and Health Department. The objective of the alternative care services program of the Department of Community Services is to ensure that all children without appropriate adult care receive high standard alternative care which provides for their particular development and well-being and achieves security either through re-establishment with their own family or permanency in alternative care.
588. The principles of Article 20 are not clearly incorporated in the Child Welfare Act 1960 or the Child Protection Act 1974. However, new legislation is proposed to contain explicit principles and provision for services which include parents in decision making about their children and which impose a hierarchy of placement options to ensure that placement away from the family is the option of last resort. In such instances, placement options would include foster family or group care in a family group home.
589. Respect for a childs cultural, ethnic and religious background is documented policy in the Service Co-ordination Guidelines. Practices which support a childs continued access to his or her natural family are a policy requirement, although they are not in the Child Welfare Act 1947.
590. In Victoria alternative accommodation and care services are provided for children and young people under the age of 18 years who are either temporarily or permanently unable to live with their family of origin, or who are significantly at risk of being in this situation. Reasons for family separation include temporary family crisis, family rejection and the need to protect children and young people who have experienced significant abuse or neglect. Initial priority is given to placing children in a family-based environment, for example, foster care or community placement, in preference to institutional care.
591. Accommodation services, including secure welfare accommodation services, have been established regionally and located within the community, replacing institutional facilities. These services are delivered by both Health and Community Services and non-government organisations. Non-government organisations, approved as community services under the Victorian Children and Young Persons Act 1989, are contracted to provide specific services via funding and service agreements. Accommodation is provided in specially established facilities which include family group homes and hostels, medium term units and home based services such as foster care and adolescent community placements. The emphasis is to place children within their own extended family or network to minimise disruption. Approximately 3,000 Victorian children and young people are placed in accommodation services at any given time.
592. The Victorian Government provides support for homeless young people via a number of programs. The Supported Accommodation Assistance Program (SAAP) is a joint Commonwealth/State initiative which is administered by the Department of Health and Community Services in Victoria. Homeless young people are one of five identified target groups in the program. Services range from short term crisis support to longer term transitional support. Outreach services are also provided. Accommodation may be directly provided or the service links the client to externally available accommodation. As at June 1995 151 services were funded, specifically designed to cater for young people. Approximately 7,500 young people are supported for varying periods in any one year. In addition approximately 3,000 children with accompanying adults access SAAP services. The majority of such children are under five years old. In the latter case the Department has recently commenced policy and practice reviews to ensure children receive appropriate services.
593. The Youth Homelessness Taskforces, which were established in 1989 and are administered by the Office of Youth Affairs, assist young people to overcome the sense of isolation which young people and families feel in the midst of family breakdown and to return to the family home where appropriate. Where returning home is not possible, every assistance is given to find accommodation and provide other necessary support as determined on a case by case basis.
594. In Western Australia children found to be in need of care and protection become wards of the Department for Community Development and are provided with care and support. The forms of care available include foster care, group home care, guardianship and adoption. When placing children, the form of care most suited to the individuals needs is sought. This includes consideration of ethnic, cultural, religious and linguistic background.
595. A range of out of home care services are also provided for children and young people who are not wards. Foster and group home care is provided by the Department for Community Development and the private sector. Standards of care in the private sector are monitored by the Consultative Committee on Out of Home Care. The Department is represented on this Committee and it provides a forum for identifying needs for new services and for developing and co-ordinating services.
596. Crisis accommodation for homeless young people is provided through funding support to the private sector. Where possible, these services assist young people to return home or to make the transition to independent living.
(g) Adoption (Article 21)
Article 21
States Parties that recognise and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:
(b) Recognise that intercountry adoption may be considered as an alternative means of childs care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the childs country of origin;
(c) Ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;
(d) Take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it;
(e) Promote, where appropriate, the objectives of the present Article by concluding bilateral or multilateral arrangements or agreements, and endeavour, within this framework, to ensure that the placement of the child in another country is carried out by competent authorities or organs.
Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption
597. Australia took a high profile in the preparation of the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. Representatives from the Federal Attorney-Generals Department and the Council of Social Welfare Ministers attended all Special Commission Sessions in The Hague. Meanwhile, in Australia, the Intercountry Adoption Standing Sub-committee of the Health and Community Services Ministerial Council was set up to monitor the progress of the draft Convention, to develop policy and administrative positions for negotiation discussions at The Hague, and to maintain cooperation between the Federal and State Governments for the eventual implementation of the Convention obligations in Australia.
598. At their meeting in 1994, the Community Services Ministers agreed, in principle, to recommend that the Convention be ratified by Australia, with the Federal Attorney-Generals Department to be the designated Central Authority and State Community Services departments to be additional Central Authorities with all responsibility for casework. However, the other administrative arrangements to implement the Convention in Australia have not been finalised and a final decision to ratify the Convention has not yet been made. It is now expected that Australia will be in a position to ratify the Convention in 1996.
Intercountry adoption - current arrangements
599. The Family Reunion component of the Migration Program includes provision for the entry of children both for adoption and who have been adopted outside Australia by Australian citizens or residents.
600. Intercountry adoption is primarily a State or Territory responsibility. In most cases the sponsoring parent or parents are well informed on entry requirements by State or Territory community service departments during an extended counselling and assessment process. The Department of Immigration and Ethnic Affairs, in close consultation with the States and Territories, is essentially only responsible for the entry mechanism facilitating inter-country adoption. The visa criteria and procedures give effect to State and Territory welfare requirements.
601. In 1986 Federal and State Ministers with responsibility for welfare matters endorsed a set of principles for entry of children to Australia for adoption. The primary adoption principle agreed is that inter-country adoption would continue to operate as a service for children and not as a humanitarian or emergency program.
602. The legislation and policy guidelines for adoption visas reflect this position. The visa criteria for the permanent entry of children are specified in the Migration Regulations.
603. Where the adoption is to take place in Australia, the proposal to adopt the specific child must be supported in writing by the relevant Australian State or Territory child welfare adoption authority (who is responsible for vetting the suitability of adoptive parents). Furthermore, the child must be free for adoption, in that the laws of the overseas country are complied with and the rights and wishes of the relinquishing parent or parents have been protected. The child must also have approval to leave the overseas country with his or her adoptive parents.
604. The Migration Regulations also provide for people who are usually resident outside Australia to bring an adopted child to Australia provided they have complied with the adoption laws of the country of origin. State law recognises overseas adoptions, usually when the adoptive parent or parents have lived in the country of adoption for more than 12 months. As in the situation where the adoption is to take place in Australia, the child must be free for adoption, in that the laws of the overseas country are complied with and the rights and wishes of the relinquishing parent or parents have been protected. The child must also have approval to leave the overseas country with his or her adoptive parents.
605. Where a child enters Australia under inter-country adoption arrangements to be adopted in Australia, or the child is adopted overseas and that adoption is not recognised under State or Territory law, the child enters Australia under the Immigration Guardianship of Children Act 1946. This provides that the Minister for Immigration and Ethnic Affairs is the guardian of the child until he or she turns 18, leaves Australia permanently, becomes an Australian citizen, or by special determination as the Minister may determine otherwise. In practice, this power is delegated to State and Territory welfare administrators.
606. The adoption visa class is one of the smaller family categories. In recent years arrivals have been around the 300 level from a wide variety of sources, principally the Republic of Korea, India, the Philippines, Sri Lanka and Thailand.
607. Most Australian States and Territories have reformed, or are in the process of reforming, their 1960s adoption legislation, the main area of reform being that of access to adoption information. The result has been a lessening of the secrecy provisions surrounding adoptions, in recognition of the adverse social and psychological effects often suffered by adoptees and their birth parents as a result of their separation.
608. In the Australian Capital Territory the Adoption Act 1993 provides the framework regarding adoptions. It provides for the adoption of persons who are under 18 or who have been brought up as a person under a de facto adoption. Before making an adoption order, the court must be satisfied that the adoptive parents are fit and proper people to be the parents of a child, and are suitable persons to adopt a particular child. The effect of an adoption order is that the adopted child becomes a child of the adopter/s, as if he or she were the natural child of that person or persons. The conduct of adoptions by competent authorities complies with the Convention and adoptions are supervised by the court by way of a report by Family Services.
609. The Adoption Act 1993 clearly re-affirms the paramount interests of the child and that the welfare of the child must be considered in the adoption process. The court must have regard to the wishes of the child before making an adoption order. The court will also have to consider the wishes of the child's birth parents as to the race or ethnic background of the proposed adoptive parents, and the religious upbringing of the child.
610. An Adoption Information Service has been set up to provide information and counselling services, to register Information and Contact Vetoes, and to maintain a Contact Register.
611. Intercountry adoptions are regulated to conform with standards consistent with Australian laws with respect to relinquishment of a child from an overseas country (Adoption of Children Act 1965). Only countries which have similar legislation protecting the rights of relinquishing parents are selected for the Australian Capital Territory adoption program. Should any country of origin evidence any malpractice in the approval process, or conflict with Australian Capital Territorys stringent adoption guidelines, that country is deleted from further negotiations. The Adoption Act 1992 restricts the adoption of children brought from overseas for the purpose of adoption to those whose adoptions are arranged by an agency approved in the childs country of origin, according to approved arrangements, and within the laws of the country of origin.
612. The New South Wales Department of Community Services is responsible for the adoption of children in New South Wales, pursuant to the Adoption of Children Act 1965. There are also a number of non-Government organisations which are licensed to carry out adoptions. These organisations are: Centacare Adoption Services, Anglican Adoption Agency, Barnardos Australia and the Seventh Day Adventist Adoption Agency. In practice adoption would only be considered as an option where there is believed to be no prospect of reconciliation or ongoing contact with the childs natural family, or alternatively, in the case of a new born baby, where a decision to adopt has been made by the natural parent(s) immediately after the childs birth.
613. The Adoption of Children Act 1965 and adoption procedures in New South Wales distinguish between the recognition accorded to adoptions which have taken place in other countries and the adoption of foreign children in the State of New South Wales. Intercountry adoptions arranged through the Department of Community Services occur in the same manner and by the same legal means as local adoptions. Legal requirements for both adopting parents and adopted children are the same whether they apply to intercountry adoptions or local adoptions. The recognition of foreign adoptions under the Adoption of Children Act 1965 generally occurs for the purpose of the grant of Australian citizenship to a child who has been previously adopted overseas.
614. The Adoption of Children Act 1965 has privacy provisions, which provide that the contents of Reports will not be disclosed, and restrictions on the inspection of records. The Adoption Information Act 1990 covers the following privacy matters:
the information to which persons are entitled;
discretion to supply prescribed information;
guidelines regarding the supply of information by information source;
access to court records;
unauthorised disclosure of information;
undertakings not to contact person who has lodged contact veto;
offences re veto on contact; and
reunion procedures.
615. The Adoption of Children Act 1994 provides for the adoption of persons who are under 18 years of age or who have been brought up under a de facto adoption. The adoptive parents must be at least 18 years of age, and must be at least 18 years older than the child (if a man) or 16 years older than the child (if a woman). The Act provides that before making an adoptive order, the court must be satisfied that the adoptive parents are fit and proper people to be the parents of the child, are suitable persons to adopt the child and that the interests of the child will be promoted by the adoption. The recent amendments to the Act include reference to the Aboriginal Placement Principal, ensuring that the cultural considerations relevant to the child are taken into account when the child to be adopted is Aboriginal.
616. The recent amendments to the Act also enshrine the principles of the Article regarding the informed consent of the relinquishing parent. Section 33 of the Act now provides that the consent of the relinquishing parent can be revoked within one month after the consent was originally signed, extending this period from the original seven days. The Court is prevented from making an order for adoption where the consent is made before the birth of the child, or within one month after the birth of the child and in that case, the Court must be satisfied that the mother was in a fit condition to consent at the time the consent was signed.
617. The Adoption of Children Act 1994 provides that Northern Territory courts recognise adoption orders made by courts of foreign jurisdictions subject to limitations set out in the Act. Now that the Australian Government has become a signatory to the Hague Convention on Intercountry Adoption, the Act will be reviewed to comply with the new structural arrangements associated with this international agreement.
618. In Queensland the Adoption of Children Act 1964 and the Adoption of Children Regulations apply. The principle of the best interests of the child is established in the Adoption of Children Act 1964. The objective of this Act is to facilitate securing for children who are available for adoption the best possible placements, having regard to the welfare and interests of the children, and to protect the rights and to provide for servicing the needs of all parties to the adoption process.
619. Under the provisions of the Adoption of Children Act 1964 the Department of Family Services and Aboriginal and Islander Affairs is the sole authority in Queensland for the provision of adoption services, including adoption orders. A valid, informed consent duly witnessed by delegated authority is required from the parent and/or guardian in the regulated form.
620. Queensland legislation makes provision for intercountry adoption by means of a separate list, referred to in the Adoption of Children Act 1964 as the Foreign Childrens Adoption List. By definition, this refers to children resident in a country outside Australia. By law, once an adoption order is made, a child who entered Queensland from an overseas country for the purposes of adoption, enjoys the same rights, safeguards and standards as exist in the case of local adoption.
621. Queensland authorities will only deal with approved authorities in the overseas country in the development of mutually agreed arrangements and procedures for intercountry adoption.
622. Significant changes to the adoption legislation occurred in 1990 and 1991. From 1 June 1991 adopted persons over 18 and birth parents have been able to obtain identifying information if the other party has not objected to contact and the disclosure of identifying information. Adult adopted persons and birth parents may object to contact only, thereby allowing the disclosure of identifying information, but restricting contact.
623. Non-identifying correspondence between a birth parent and adopted child and/or adoptive parents can occur at any time when both parties are willing. Identifying communication/contact between the two parties can be approved by the Director-General of the Department of Family Services and Aboriginal and Islander Affairs for some special needs children if their circumstances fall under of the Adoption of Children Act 1964.
624. In South Australia the adoption of children is provided for under the Adoption Act 1988. The Act has a general principle that all proceedings must have the interests of the child as the paramount consideration. A major objective of the Act is openness in adoption. The Act sets out provisions under which various parties to adoption may gain access to adoption information. The Act makes separate mention of the adoption of Aboriginal children. Unless special circumstances exist, an adoption order for an Aboriginal child will only be made in favour of a member of the childs Aboriginal community who has the correct relationship in accordance with Aboriginal customary law or, if there is no such person, some other Aboriginal person.
625. The Adoption Act 1988 has a number of provisions which provide for the privacy of the child. It provides that an application for an adoption order will not be heard in an open court and that the records of proceedings for an adoption order will not be open to inspection. The Act also provides that information can be accessed by the natural parent or a relative once the adopted child is over 18 years. Certain information may be provided which does not enable the adopted person to be traced. Prior to this, information may only be provided if the adoptive parents and the adopted child (if over 12 years) has approved the disclosure. Information relating to children adopted prior to proclamation of the Act may be released only if a veto has not been placed by either the child or the natural parents.
626. The Act makes it an offence to publish information in the news media relating to people involved in proceedings under the Act or concerning material related to adoption.
627. With regard to intercountry adoption, provision is made within the legislation to attempt to ensure that the children concerned receive the same safeguards as do those children involved in domestic adoption. The legislation provides that recognition of an adoption from another country will occur if:
the order was made in accordance with the law of that country;
the circumstances in which the order was made would, as if they had existed in the State of South Australia, have constituted a sufficient basis for making an adoption order under the Act; and
the proceedings in which the order was made involved no denial of natural justice or failure to observe the requirements of substantial justice.
628. The Adoption of Children Act 1988 and Regulations establish adoption as a service for children to be conducted only by proper authorities. In Tasmania the State Government Agency conducts local and intercountry adoptions. Centacare is an approved Agency for local adoption. Tasmania has joined with other States and Territories to develop national principles which are consistent with Article 21.
629. Privacy provisions are contained in several sections of the Adoption of Children Act 1988. These include: provision for confidentiality of adoption records (records are not available or open for inspection by any person); a person is not entitled to information relating to the personal affairs of another person, whether living or dead; and protection of the identity of a child, his or her natural and adoptive parents, except that by mutual consent in writing they can be identified to each other.
630. In Victoria the Adoption Act 1984 provides the legislative framework for adoption. This Act provides that the welfare and interests of the child are the paramount consideration in adoption. The legislation provides that only authorised agencies can arrange adoptions and establishes requirements for adoptive parents, the giving of informed consent by the childs parents or guardians, dispensing of consent and the making of a court order.
631. The Adoption Act provides that records relating to an adoption will only be made available to prescribed individuals in certain circumstances defined by the Act. The Act also provides that a person shall not give information relating to the personal affairs of a person other than the applicant except in accordance with the Act.
632. Legislative provisions are also established for intercountry adoption in the Adoption Act 1984. These provisions conform with those for the adoption of children born in Australia, apart from the age requirement for adoptive parents (who may be older in the case of intercountry adoption).
633. In Western Australia the Adoption of Children Act 1986, which was substantially amended in 1985, is the primary legislation governing the practice of adoption. It contains provisions that meet the Conventions requirements for determining a childs status and the necessary consents required for adoption and international adoption. Recently this legislation has been reviewed and the recommendations of the Adoptions Legislative Review contain proposals for further ensuring the rights of children under the Convention. New legislation is currently being drafted for presentation to Parliament.
634. The legislation states that the childs welfare and interests are paramount. Provision is also made to respect the views of the child. The consent of a child aged between 12 and 18 is specifically required for adoption and to the names by which he or she will be known. Provision is made for the legal representation of children where an adoption order is contested.
635. The Adoption of Children Act 1986 also prohibits the publication of anything that will identify or be likely to identify any person:
who is or proposes to be the subject of or a party to an application for an order or adoption;
who is the relative of a person who is the subject of or a party to an application for an order of adoption;
who has consented to the adoption of a child; or
who is or may be affected by an order of adoption.
636. In relation to intercountry adoption, the joint operation of the Adoption of Children Act and the Immigration (Guardianship of Children) Act 1946 ensures that any child entering Western Australia for the purpose of adoption, whether for whom a local adoption order will be sought or for whom recognition of an overseas order will be sought, will enjoy the same safeguards and standards as a local child for whom an order of adoption is sought.
(h) Illicit transfer and non-return (Article 11)
Article 11
1. States Parties shall take measures to combat illicit transfer and non-return of children abroad.
2. To this end, States Parties shall promote the conclusion of bilateral or multilateral agreements or accession to existing agreements.
The Hague Convention on Civil Aspects of International Child Abduction
637. The Hague Convention on Civil Aspects of International Child Abduction was ratified by Australia in October 1986 and the Convention came into force for Australia on 1 January 1987. Australia has accepted the accession of every other country since that time and the Convention now operates between Australia and 38 other countries. In the period from January 1987 until February 1995 there were 282 abductions to Australia and in the period from January 1988 until February 1995 there were 211 abductions from Australia which were dealt with under the Hague Convention which aims to secure the prompt return of children wrongfully removed to or retained in any country which is a party (statistics were not kept on abductions from Australia during the first year).
638. Australian courts take a very strict approach in interpreting and upholding the Conventions principles, in particular, those Articles which provide the exceptions to return of abducted children. Though precise figures are not available, it is estimated that in over 90 per cent of cases, children abducted to Australia are ordered to be returned to their country of habitual residence. Australia takes the view that a strict interpretation and a uniform application of the Convention by all parties will ensure that the Convention remains the most effective deterrent against parental child abduction.
639. Australia also seeks to promote the Convention amongst countries in our region. Only New Zealand and Australia from this region are Parties to the Convention. Since 1992, the Government, through its Foreign Affairs posts, has approached many countries which are not yet Parties to the Convention, and particularly countries in the Pacific Rim, to give consideration to joining. A number of countries responded favourably to those representations, and additional representations continue to be made on an on-going basis whenever an appropriate occasion arises.
(i) Abuse and neglect (Article 19, including physical and psychological recovery and social reintegration (Article 39)
Article 19
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programs to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Article 39
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
640. The Family Court is required under mandatory notification provisions of the Family Law Act 1975 to bring to the State Authorities attention allegations of child abuse or neglect which come to the attention of the Court.
641. The Federal Government established the National Child Protection Council in 1991 in response to the report of the National Committee on Violence. The Council includes representatives of Federal, State and Territory Governments, and community members. The Council Secretariat is located in the Department of Human Services and Health. The role of the Council is to focus the attention of Governments and the community on the need to reduce the incidence of child abuse and neglect, and to promote and commission national research on the prevention of child abuse.
642. The co-operation of Federal, State and Territory Governments through the National Child Protection Council led to the development of the National Prevention Strategy for Child Abuse and Neglect released in September 1993. The Strategy is a co-ordinated plan of action which aims to challenge the beliefs and attitudes in the community which allow child abuse to continue. It also aims to promote an environment which supports families and communities and helps them to meet their responsibilities to care for and protect children. The 1994-95 Federal Budget provided new funding of $12 million over four years to implement the Federal elements of the Strategy. The Federal Government has responsibility for broad national activities, such as a community education campaign and national research program. State and Territory Governments have responsibility for specific and localised activities, including the development of community support networks, childrens education programs, parenting programs, early intervention services, and information and advisory services.
643. The Federal Government established the National Child Protection Clearing House to co-ordinate information and research on the prevention of child abuse and neglect. The Clearing House also has network, outreach and advisory functions. Originally located at the Australian Institute of Criminology and now with the Australian Institute of Family Studies, the National Clearing House is undertaking an on-going audit of all child abuse prevention programs, research and activities.
644. Part of the National Child Protection Councils terms of reference require it to take into account the special child abuse prevention needs of children from non-English speaking backgrounds, children with physical disabilities and developmental delay, Aboriginal children, and Torres Strait Islander children. The National Prevention Strategy for Child Abuse and Neglect also identified these groups of children for whom issues need to be addressed in a culturally appropriate and sensitive way. The Department of Human Services and Health has commissioned research and consultations aimed at the development of separate plans of action to address the special child abuse prevention needs of children from these groups. These projects will conclude progressively in 1995.
645. In May 1995 a comprehensive report titled The Commonwealths Role in Preventing Child Abuse was released. The Report was commissioned by the Minister for Family Services and undertaken by the Australian Institute for Family Studies. The Report noted that policies preventing child abuse include health, education, and community service polices relating to employment, housing and income support. They also include policies which protect and promote the status of women, policies which eliminate discrimination and polices to prevent or eliminate violence. The Federal Government has made major achievements in these areas. Recommendations made in the report included the improvement by the Federal Government of the mechanisms for co-ordinating its own policies and programs The Report is now being considered by the Government.
Other activities
646. The National Health and Medical Research Council (NHMRC) has recently established a Working Party on Child Sexual Abuse, to be overseen by its Health Advancement Standing Committee. The Working Party will review what is known about the impacts and implications of child sexual abuse, in order to identify the needs of those at risk and opportunities for effective intersectoral secondary preventive activities across a variety of settings. The Working Partys draft report will be circulated for public consultation prior to it being finalised, according to the requirements of the NHMRC Act 1992. It is expected that public consultations will commence in late 1996.
647. The Federal Government is fostering the development of uniform State and Territory legislation to deal with the sexual abuse of children within Australia and associated activities such as the production, possession and sale of child pornography. This is further discussed in Part H(c)(iii), Special protection measure, Children in situations of exploitation, Sexual exploitation and sexual abuse, below. The issue of child smacking is discussed in Part D(h), Civil rights and procedures, the right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment, above.
648. All Australian jurisdictions recognise the special needs of children for care and protection, particularly where that care or protection cannot be provided by families. There are legislation and programs designed specifically to protect children and to provide assistance for children at risk.
649. Criminal sanctions are imposed in all jurisdictions for people who mistreat children, whether that mistreatment takes the form of actual physical abuse, abandonment of young children or failure to provide children with the necessities of life. In addition, in each jurisdiction, child welfare agencies exist whose task it is to act in the best interests of a child to preserve the welfare of the child.
650. Further information is provided in Part G(a), Education, leisure and cultural activities, Part H(c)(iii), Special protection measures, children in situations of exploitation, Sexual exploitation and Sexual abuse, below.
651. The Australian Capital Territory and Western Australia are the only jurisdictions in Australia where professionals are not mandated to report child abuse. However, in December 1993 the Australian Capital Territory Community Law Reform Committee recommended a phased approach to the introduction of mandatory reporting in the Australian Capital Territory, with adequate resources being provided for protective and follow up services. The report is currently awaiting community and Government responses.
652. The abuse and neglect of children are dealt with in the Childrens Services Act 1986. Family Services of the Bureau of Housing and Community Services has statutory responsibility for intervening and providing services to children subject to all forms of maltreatment and abuse. The Branch is responsible for the protection of children who are in need of care and investigates notifications of suspected physical or sexual abuse of children, where there are reasonable grounds to suspect that such abuse has occurred or is likely to occur. When a child is in need of care he or she may be placed in a shelter by a person authorised to do so. The parents of the child must be notified as soon as is practicable. If a child is in hospital and urgent action is needed to safeguard his or her welfare, the child may be detained in hospital by a direction in writing from an authorised person. Requirements for the notification of the parents apply.
653. Article 19 is implemented through the programs of the Department of Community Services and the provisions of the Children (Care and Protection) Act 1987. The Department has a statutory responsibility to investigate notifications of child abuse and neglect and to take appropriate action aimed at protecting the child. Further discussion of action taken cases of abuse or neglect is found in Part E(c), Family Environment and alternative care, separation from parents above. Medical practitioners have a duty to report child abuse to the Department of Community Services. Teachers and school counsellors must report child sexual assault. Their internal guidelines supplement this mandate to recommend that they also report certain other forms of abuse, although they do not go so far as to require the reporting of all forms of suspected physical and emotional abuse.
654. The Criminal Code provides that a person in charge of a child under 16 years has a duty to provide the necessaries of life for that child. Any such person who fails to discharge this duty so that the child is likely to be endangered or his or her health is likely to be permanently injured is guilty of a crime.
655. The Community Welfare Act 1983 operates to protect children from general abuse and maltreatment. Section 13 empowers a member of the police force to investigate instances where maltreatment of a child is suspected. The police officer must make a report to the Minister of any suspected instances of maltreatment of a child. Section 14 provides that any person who suspects that a child is being maltreated must report such a suspicion to the Minister. Section 15 provides that a person in charge of a hospital who has a child patient whom he or she suspects has been maltreated may detain the child for the purpose of further medical treatment and investigation.
656. The Community Welfare Act 1983 provides that once the Minister receives a report of maltreatment he or she must, as soon as possible, cause a further investigation to be undertaken and at its completion take such action as he or she deems necessary. The investigation is conducted by a Child Protection Team, established under the Act. The function of the team is to investigate reports and co-ordinate action between the relevant Government departments to ensure the appropriate action is taken.
657. The Community Welfare Act 1983 provides that a child shall be taken to have suffered maltreatment where:
he or she has suffered a physical injury causing temporary or permanent disfigurement or serious pain or has suffered impairment of a bodily function or where there is substantial risk of him or her suffering such an injury or impairment;
he or she has suffered serious emotional or intellectual impairment evidenced by severe psychological or social malfunctioning measured by the commonly accepted standards of the community, because of his or her physical surroundings, nutritional or other deprivation, or the emotional or social environment in which he or she is living; or
he or she has been sexually abused or exploited, or that there is substantial risk of such abuse or exploitation occurring, and his or her parents, guardians or persons having custody are unable or unwilling to protect him or her from such abuse or exploitation.
658. The Family, Youth and Childrens Services Division of the Department of Health and Community Services ensures immediate and longer term protection of children by referrals to support agencies, placement of children in alternative care, instigating necessary court action, crimes counselling, providing preventive and rehabilitative services for children at risk of maltreatment and their families, and by developing programs for the rehabilitation of victims and perpetrators in child abuse matters.
659. In Queensland the Health Act 1937 makes notification of suspected abuse and neglect mandatory for medical practitioners. Health Authority personnel are members of multi-disciplinary teams that coordinate the management of cases. The Health Department is represented on the Co-ordinating Committee on Child Abuse, which oversees child protection in the State. The Act allows a child to be admitted to a hospital for a period of no longer than 96 hours when a medical officer in charge of a hospital suspects on reasonable grounds the maltreatment or neglect of a child in such a manner as to subject or be likely to subject it to unnecessary injury, suffering or danger.
660. The Division of Protective Services and Juvenile Justice has a general mandate to protect children who have suffered, or are likely to suffer, abuse or neglect without undue intrusion into family life. The Protective Services program however targets children who suffer or are at risk of intra-familial abuse, and does not have direct responsibility for children who suffer abuse or neglect while in residential care provided by Intellectual Disability Services. The Division of Intellectual Disability regards abuse or neglect of children in its residential services as a police matter, to be dealt with under the criminal law, and as well has internal administrative procedures for reporting, investigation, treatment and follow-up of such instances. These procedures are designed to protect the rights of the child.
661. The Queensland Police Service enforces both the Childrens Services Act 1965 and the Criminal Code in relation to the protection of children from all forms of physical, emotional and sexual abuse, and the investigation of child neglect, maltreatment or exploitation. This legislation is implemented primarily through the Juvenile Aid Bureau, which is dedicated to the investigation of offences and allegations of this kind. In conjunction with other primary response agencies, such as the Department of Family Services and Aboriginal and Islander Affairs and doctors and other health professionals, the Police Service ensures that appropriate protective measures are instigated when matters are brought to its attention. The Education Department has given teachers guidelines for the reporting of suspected child abuse and reporting of abusers.
662. The Department of Family Services and Aboriginal and Islander Affairs administers the following programs relevant to Article 19:
Alternative Care and Intervention Services Program: This is a State funded program which aims to assist shared family care, residential case and specialist therapeutic services.
Child Abuse Prevention Program: This is a State funded program providing funds to assist non-Government organisations and Local Government Authorities to provide activities and develop strategies for the prevention of child abuse.
Domestic Violence Initiatives Program: This is a State funded program providing grants to approved organisations to reduce the occurrence of domestic violence within families and to encourage early intervention in cases of domestic violence.
663. The policy of the Department of Family and Community Affairs ensures that children receive adequate parental care and are protected against maltreatment. The Community Welfare Act 1973 makes it an offence to maltreat or neglect a child. The Childrens Protection Act 1993 details the responsibilities of the Department, the Childrens Court and the police to interview in instances of alleged child maltreatment. It is based on the principle that children have the right to enjoy parental care and protection and to have their welfare safeguarded. The Department has a responsibility to promote a network of services which assist parents to carry out their responsibilities. When this parental responsibility is not carried out or when parental care is harmful to the child, the Department must take appropriate action to protect the child.
664. The two major pieces of legislation designed to protect children are the Child Welfare Act 1960 and the Child Protection Act 1974. The Child Protection Amendment Act 1986 provides for crisis intervention by State agencies in instances of the physical, sexual or emotional abuse of a child. As such it represents a broadening of the powers available under the Child Protection Act 1974. It is proposed to develop new legislation in 1996 which will replace both the Child Protection Act 1974 and the Child Welfare Act 1960. The proposed legislation will focus on the prevention of abuse as well as the protection of children from further abuse.
665. The Government agency that has major carriage for this area is the Department of Community Services. The Department also has responsibility for housing services and services for people with disabilities. The Child Protection Act 1974 gives the State power to intervene to protect children from abuse and neglect. Protective Behaviours Programs are funded to assist children to develop self-protective strategies and to encourage them to seek help if they need it.
666. The Child Protection Board has the statutory responsibility for child protection in Tasmania, although its authorised officers are employed by the State welfare agency. The Board is responsible to ensure that investigation and appropriate follow up action is taken. The Board authorises the initiation of judicial involvement in the Childrens Court where no other option can be found to protect the child.
667. A range of family support and other primary prevention services are provided through Government funding of non-Government organisations. In addition, specialist medical, psychological and counselling services are provided through Family and Child Health and Community Health Services and through sexual assault services. These services aim not only to prevent children from being abused and neglected, but also are accessed to assist with the re-integration of children into their families and communities.
668. Since 1982 there have been major developments in Victorias child protection system. The Department of Health and Community Services now has responsibility for protective services with the police involvement primarily where criminal aspects are involved. Management and delivery of child protective services have been improved through increased staffing, enhanced supervision and in-service training. An after hours service has been introduced throughout the State to provide 24 hour access to child protection services. Family support services which aim to reduce the need for protective intervention have also been strengthened.
669. The introduction of the Children and Young Persons Act 1989 represents a major step in formalising and strengthening child protection practice. The Act clearly separates the Family and Criminal Divisions of the Childrens Court, and steps have been taken to ensure the separation within the service system of young offenders from those children in need of protection, for example, through the redevelopment of central institutions. The Children and Young Persons Act 1989 also contains a number of practical measures aimed at ensuring the safety of children and respecting the integrity of the family. These include provisions intended to strengthen the rights of children and their families relative to those who seek to intervene, to preserve and strengthen families wherever possible, and to actively promote pluralist cultural values.
670. Child, adolescent and family psychiatry services offer both residential and community based programs. These services are provided by a range of specialist health practitioners including child psychiatrists, child psychiatric nurses, social workers, child and neuropsychologists and occupational and child therapists.
671. The plight of young people in abusive situations at home was improved through the Crimes (Family Violence (Amendment)) Act 1990. This Act enables young people between the ages of 14 and 17 (or a third party on their behalf) to apply for an order against a family member to prevent further or threatened violence against them or their property. Court procedures in relation to the prosecution of offences which involve children have been changed to make it easier for courts to accept children as witnesses and for children to testify (for example, use of closed circuit television when hearing testimony of children). The reporting of child abuse is not yet mandatory. The introduction of mandatory reporting of child abuse was introduced commencing with the gazettal of doctors, nurses and police on 4 November 1993 and primary and secondary school teachers and principals on 18 July 1994.
672. The Family Violence Prevention and Support program has piloted models of service provision to children and adolescents who have lived in families where there is violence. The services aim to provide children with ways of coping with the trauma and developing more positive relationships and the further development of such support services is a priority for the program. In addition services have been developed for changing mens behaviour, targeting men who have been violent to family members and who wish to learn new behaviours. Standards for mens behaviour have been developed that emphasise the safety of women and children, and parenting issues and skills are included in the programs.
673. In Western Australia it is the Department for Community Developments mandate under the Child Welfare Act 1947 to respond effectively to allegations of child abuse and neglect. This is done through divisional offices where allegations are investigated and, when found to be substantiated, protective action or family support is provided in order to ensure protection is achieved. The Department also supports and assists other agencies and community groups to provide support and protection.
674. In relation to psychological recovery, the Departments Child Protection Policy states:
The Department in co-operation with other agencies, should provide comprehensive treatment services for children and their families as this is essential to future prevention of abuse. This is achieved through the provision of treatment services by divisional psychologists, specialist child protection workers and field officers.
675. The Department for Community Development can intervene in the lives of children and their families to protect children from harm under provisions of the Child Welfare Act 1947, the Adoption of Children Act 1986 and the Childrens Court of Western Australia Act 1988. Proposed legislation will reduce the degree of administrative discretion currently allowed in favour of increased judicial oversight of departmental actions. It will do this by:
restricting the grounds for a care and protection application to where the child has no effective legal guardian or the child is experiencing, or is likely to experience, significant harm as a result of maltreatment or self injurious behaviour and the childs parents are unable or unwilling to prevent that harm occurring;
introducing principles that promote the resolution of protective issues without removing the child from his or her family and that reserve court ordered intervention and severance of parental guardianship for cases where this is necessary to protect the child;
providing for a temporary custody order to enable allegations of maltreatment to be investigated;
giving the court the power to determine disputes over custody and access;
providing an increased range of orders, where the need for care and protection has been judicially determined, that promote family reunification and reserve the removal of parental guardianship for cases where this is necessary for the childs protection;
providing the court with restraint powers that enable it to direct that alleged perpetrators of maltreatment leave the home or otherwise refrain from contact with the child, so that the child does not have to be removed from familiar surroundings pending the resolution of protective proceedings; and
providing that a child capable of giving consent shall do so before a departmental officer can take him or her for a medical examination to corroborate an allegation of maltreatment.
Domestic violence
676. Many women and children require protection from violence or the threat of violence perpetrated by their spouse or father respectively and need assistance from the police and social welfare agencies. The issue of domestic violence has received considerable attention, during the last decade, at both Federal and State levels. In 1986 the Australian Law Reform Commission published a report on the issue which made recommendations for reform. The Office of the Status of Women has also undertaken research and community education, particularly with regard to violence against women. The Australian Institute of Criminology has also done a considerable amount of research on the subject of domestic violence against women and children.
677. As one measure to assist in controlling violence in families, in May 1995, the Federal Government announced an allocation of $2.4 million over four years to address violence in family relationships. There are two components to this measure. First, two pilot programs will be developed within existing Government-funded counselling agencies to trial approaches to dealing with the issue of violence in families. Secondly, training in screening for violence and issues of gender and safety will be implemented for service providers in order that women who seek help can consistently receive a sensitive skilled response.
678. Following agreement between the Federal, State and Territory Governments, the Family Law Reform Bill inserts a new Division into the part of the Family Law Act 1975 dealing with children, which makes special provision for situations of family violence. The new provisions will enable a State or Territory court, when making protective orders, to vary or suspend Family Court orders about contact between a child and another person. In addition, the Family Court will be required to take into account, in determining the childs best interests, any family violence or order to protect a person from family violence, and the need to protect the child from physical or psychological harm that may be caused by being subjected or exposed to, or being affected by another person being subjected or exposed to, abuse, ill-treatment, violence or other behaviour.
679. Victims of domestic violence in the Australian Capital Territory may seek protection under the Domestic Violence Act 1986. Under this Act a person may apply to the court for a protection order where the respondent has committed or threatened to commit a prescribed domestic violence offence. Interim orders may be made ex parte pending formal hearing of the application. Protection orders can last up to 12 months. Children are able to apply for protection orders themselves. Alternatively, someone can apply on their behalf.
680. An order may prohibit the respondent from being on certain premises, from contacting, harassing, threatening or intimidating the victim personally or through another person, from damaging the victims property and may cover other related matters. If the person against whom an order is made holds a gun licence the Court may order the seizure of the weapon concerned. Police also have powers relating to search and seizure of weapons when called to the scene of a domestic violence offence.
681. The Australian Capital Territory Community Law Reform Committee is currently reviewing the law in force in the Australian Capital Territory in regard to domestic violence. A Discussion Paper on the subject was published in November 1992 and a Research Paper prepared by the Australian Institute of Criminology was published in March 1993. Community consultation has occurred and the Committee is in the process of formulating recommendations for reform. Issues being addressed include the duration of orders, arrest and court procedures, collection of statistics, preventive detention or refusal of bail to violent offenders, cancellation of custody and access orders in favour of violent offenders, specialist training for those involved in the court process and the use of behavioural change programs as sentencing options. A final report is expected to be released in the near future.
682. In 1983 the New South Wales Crimes (Domestic Violence) Amendment Act was introduced with the aim of assisting the community to recognise that domestic assault is a criminal offence and to make the police and courts more effective in dealing with the problem. The legislation has since been amended to expand the protection offered to victims of domestic violence and to reflect the communitys growing abhorrence of violence within families. In brief, the legislation now provides that:
protection orders may be sought by any victim above the age of 16 years or by police on behalf of the victim. A complaint for an order must be made by police where the victim is under 16 years of age;
telephone interim protection orders are available outside normal court hours;
stalking and intimidation are now a standard prohibition under protection orders;
stalking and intimidation are also a separate offence attracting a maximum penalty of two years imprisonment or $5,000 or both;
the penalty for breaches of protection orders is two years imprisonment or a $5,000 fine or both;
where the breach of a protection order involves a violent act, unless the court otherwise orders, the person must be sentenced to a term of imprisonment. Where the court determines not to impose a sentence of imprisonment, it must give reasons for not doing so; and
in certain circumstances, there is an exception from the presumption in favour of bail where a protection order is contravened by an act of violence or where a domestic violence offence has been committed.
683. In the Northern Territory an application for a restraining order may be made under the Domestic Violence Act 1992. An application may be made by a spouse against whom violence is likely to be directed or by a member of the police force. The Court may make an order if it is satisfied that the defendant has assaulted or caused personal injury to his or her spouse, threatened to assault or cause personal injury to his or her spouse, damaged or threatened to damage property in the possession of his or her spouse, or acted in an offensive or provocative manner towards his or her spouse, including behaviour that may cause another person to reasonably fear violence or harassment. The Court may impose such restraints as it considers necessary to prevent the defendant from acting in the apprehended manner including some specified positive orders, for example, the return of personal property. Breach of an order is an offence, the penalty being a $2,000 fine or imprisonment for six months. For a third or subsequent breach, imprisonment is mandatory, the term being not less than seven days nor more than six months.
684. When the Domestic Violence Act 1992 commenced, the protection of a restraining order was available to the spouse of the perpetrator. Spouse is defined to include a de facto spouse according to Aboriginal and Torres Strait Islander tradition. The Domestic Violence Amendment Act 1994 (which commenced on 1 May 1995) extends the protection under the Act to family members and others falling within a domestic relationship, including boyfriend and girlfriend relationships.
685. The Domestic Violence (Family Protection) Act 1989 provides for the protection of persons and their relatives against violence committed or threatened by a spouse and for the prevention of behaviour disruptive to family life. Under that Act, a spouse (which includes a de facto spouse) or a police officer can apply for a protection order. The protection order can protect the spouse, a relative (including a child) or associate of the spouse. A protection order is made by a court. A protection order usually lasts for up to two years, but can be made for a longer period.
686. Under the Domestic Violence Act 1994 and the Summary Procedure Act 1923 applications can be made by persons (including children or persons on their behalf) who fear violence, property damage or harassment. The orders that the Court can make are similar to those in the other States. The Courts must give priority to domestic violence order applications. In 1994 the Criminal Law Consolidation Act 1936 was amended to make stalking an offence.
687. In Tasmania the Justices Act 1959 was amended in 1985 to provide for the issue of domestic restraint orders. These are designed as an adjunct to the existing criminal law, and to provide immediate protection for persons suffering domestic violence. The Justices Act has been amended a number of times since 1985 to improve the protection provided by restraint orders, to clarify and strengthen police powers of intervention in domestic violence situations, and to simplify restraint order application procedures.
688. The Justices Act also contains provisions to revoke gun licences in restraint order proceedings involving violence and to prohibit persons subjected to restraint orders from obtaining gun licences. Restraint or protection orders made interstate can now be registered and enforced in Tasmania.
689. In 1985, the Womens Policy Co-ordination Unit of the Victorian Department of Premier and Cabinet produced a report in 1985 on criminal assault in the home. The report made a number of recommendations for legislative change to meet the problem of domestic violence. The Crimes (Family Violence) Act was subsequently passed in 1987.
690. In Western Australia an application for an order to keep the peace (ie a restraining order) may be made under the Justices Act 1902. This was inserted in 1982 under the heading Orders to keep the peace. Currently orders to deal with nuisance matters and orders relating to protection from violence are governed by this legislation. A court may grant a restraining order if satisfied on the balance of probabilities that a defendant has caused or threatened to cause personal injury or damage to property, or behaved in a provocative or offensive manner as may lead to a breach of the peace.
691. An application may be made by a police officer or by a person against whom the behaviour is directed. If the person is an infant the application may be made by a person acting on the infant's behalf. Before making an order justices are required to consider the effect of making or declining to make the order on any children of, or in the care of, the persons affected by the proceedings. The penalties for breach of a restraining order were increased in 1994 to imprisonment for 18 months or a fine of $6,000.
692. A new offence of stalking has been introduced in the Criminal Code. The maximum penalty for stalking is eight years imprisonment. Amendments to the Bail Act in 1994 resulted in a presumption against bail being granted to a person who has been charged with serious offence such as stalking or breach of an order to keep the peace.
693. Commencing in February 1995, the Western Australian Ministry for Justice undertook a review of all aspects of State legislation and procedures relating to restraining orders. The review reported to the State Attorney-General in July 1995 and proposed changes to simplify the process of applying for restraining orders and to increase their effectiveness, in particular as a response to family and domestic violence. Arising from the review, legislation is being drafted to, among other things: distinguish between Protection Orders relating to protection from violence and Nuisance Restraining Orders relating to damage to property or disorderly conduct; enable seizure of firearms where a Protection Order is made against a person; provide for applications for Protection Orders to be made by telephone; and secure the involvement of a responsible adult in restraining order proceedings involving juveniles. Planned procedural changes will: facilitate policy development through better data collection; improve awareness through programs for judicial officers, police, court staff, and others involved in the restraining order process; and improve support for victims of family and domestic violence.
694. The Attorney General is coordinating the government's Domestic and Family Violence Policy. An interdepartmental Task Force has been established to develop a comprehensive family and domestic violence action plan.
695. A special Domestic Violence Unit has also been established at Legal Aid.
(j) Periodic review of placement (Article 25)
Article 25
States Parties recognise the right of a child who has been placed by the competent authorities for the purpose of care, protection or treatment of his or her physical or mental health, to a periodic review of the treatment provided to the child and all other circumstances relevant to his or her placement.
696. Family Services Branch programs are clearly defined and co-ordinated, and each clients case will be monitored and reviewed at regular intervals, whether the client is the subject of a court order or of the intervention of the Branch. Review dates may be determined by the Courts, especially with respect to juvenile justice orders. The court may also order a report as part of any proceedings in respect of a child (Childrens Services Act 1986 s162(1)).
697. In the Australian Capital Territory the Office of the Community Advocate monitors all orders in respect of children in need of care (providing its own view to the court in respect of children in need of care proceedings) and requests reports, meetings or conferences as directed by the courts or at its own initiative. The Childrens Services Act 1986 stipulates a compulsory periodic review of orders within every 12 months for each court order. The court may also review its orders at any time, on application by the Community Advocate or any other person.
698. Family Services Branch policy and practice ensure that case reviews evaluate the necessity for the continued intervention of the State in the life of a child and whether current intervention meets case plan objectives. Case plan documentation may be given to the child, the parents, the care-giver, and all persons responsible for implementing support for the child in the case plan.
699. Administrative procedures and legislative provisions administered by the Department of Community Services and the Health Department ensure that periodic reviews occur in accordance with Article 25. The legislative provisions relating to periodic review are found in the following Acts:
Children (Care and Protection) Act 1987
- Licensing of residential care centre;
- Review by court;
- Review by Community Welfare Appeals Tribunal; and
- Childrens Board of Review.
Community Services (Complaints, Appeals and Monitoring) Act 1993
- Community Visitors;
- Community Services Commission; and
- Appeals Tribunal.
Mental Health Act 1990.
700. The Community Welfare Act 1983 requires that, where there is a court order regarding placement of the child, the Court must review the placement periodically. The frequency of the review depends on the length of the order. The Minister also has a duty to review the placement every three months, regardless of the length of the order.
701. There are also provisions in the Act for variation or appeal of the placement order. Those variations or appeals can take place as a result of a review or at any time in the placement period.
702. Principle 16 in the Principles of Substitute Care provides that children and their cases will be under constant review while the children are placed in substitute care.
703. The Department of Family Services and Aboriginal and Islander Affairs has minimum standards in relation to review of placements. These standards state that each case must be reviewed by departmental officers at a minimum of every four months until the child is safely united with family or in a planned permanent placement.
704. Children in alternative residential care with Intellectual Disability Services are placed voluntarily at the request of their parent/guardian, rather than through the exercise of statutory power to separate the child from the family. It is the policy of the Government that every client have an individual plan for future care, training and lifestyle development, including accommodation and placement. This plan must be reviewed annually.
705. One of the functions of the family care meetings convened under the Childrens Protection Act 1993 is to review arrangements made for securing the care and protection of a child. A family care meeting must make provision for the review of those arrangements and a Care and Protection Co-ordinator must convene a meeting in accordance with those arrangements. A Co-ordinator must also convene a family care meeting when requested to do so by two members of the childs family and may convene a meeting at a time he or she thinks necessary. Where the Court places a child under the guardianship of the Minister until the child attains 18 years, a review of the circumstances of the child must be carried out at least once in each year that the child remains subject to the order.
706. For children who are in foster care the Community Welfare Act 1973 provides for the Director General to satisfy himself as to the welfare of all children in the custody of approved foster parents and to review at regular intervals the circumstances of each foster child and the possibility of the child being returned to its own family. The Departments policy with regard to all children in substitute care, including placements in emergency foster care, respite, residential, relative and foster care specifies reviews at three, six, 12 and 18 month intervals and after that annually.
707. There is no legislative requirement for review of placement in the Child Welfare Act 1960. However, Service Co-ordination Guidelines establish a policy requirement that service co-ordination plans be developed in consultation with children and their families and that plans are monitored and reviewed annually. Reviews should coincide with the agreed frequency which is part of the plan, or with significant changes to circumstances.
708. In Victoria the Children and Young Persons Act 1989 makes provision for a review of the extensions of protection orders by the Childrens Court. The Act provides that court orders granting custody or guardianship of a child to the Director-General of Community Services or to a third party must be for a period of no more than 12 months (or 24 months in some cases), with review thereafter if a new order is to be made.
709. Under the Mental Health Act 1986 a person who has been detained as an involuntary patient or a security patient has the right to apply to the Mental Health Review Board for review of that decision. An appeal may be made by the patient at any time or by a person who satisfies the Board of a genuine concern for the welfare of the patient. It is also the function of the Board to periodically review the detention of each involuntary patient and security patient. The continued detention of an involuntary patient or security patient must be reviewed between four and six weeks after admission and thereafter at intervals not exceeding 12 months. The Act also provides that, on admission to a psychiatric in-patient service, every patient must be given a prescribed statement setting out his or her legal rights, including the right to have a second psychiatric opinion and to obtain legal representation.
710. The Department for Community Development ensures regular review of children under its care through policy directives. The Child Welfare Act 1947 also requires that wards be visited at least every six months. Departmental Case Conference Guidelines and Administrative Instruction 456 provide details of planning and review requirements. Where possible, placements are pre-planned at a case conference that involves all relevant parties, including the childs family. The childs views are also sought and considered. If placement cannot be pre-planned there is a requirement that a plan be developed within five working days of the child coming into care.
711. Regular case reviews are held on children in care and a full case conference occurs annually or whenever a change in placement is contemplated. The movement of all children in care can only occur as a result of a formal case plan. Planning review for children in care is considered to be essential and the Legislative Review has proposed that new legislation contain an obligation on the Director General to provide this for children under care and protection orders.F. Basic health and welfare
(a) Survival and development (Article 6, paragraph 2)
Injury Prevention and Control
712. Australias National Goals, Targets and Strategies for Better Health Outcomes into the Next Century, released by the Federal Government in September 1994 identified injury prevention and control as one of the four priority areas for action.
713. Injury is a leading cause of death in Australia and accounts for 6.1 per cent of all deaths. About 50 per cent of child deaths are due to injury. See Table F1.
714. The Department of Human Services and Health has funded the Child Accident Prevention Foundation of Australia (Kidsafe) to lead and coordinate national action to reduce injury in areas where children are identified as the target group in the National Health Goals, Targets and Strategies for Injury Prevention and Control. Specific projects will cover:
poisoning (action to extend the use and effectiveness of child resistant closures);
burns and scalds (action to regulate for the instillation of smoke detectors and to reduce tap hot water temperature in bathrooms);
falls associated with playgrounds, nursery furniture (review and adoption of new Standards) and babywalkers (action and education to reduce their sale and use);
drowning - domestic pools (action to extend pool fencing legislation) and baths (carer safety education); and
transport-related injury (extension of the availability and use of child restraints in motor vehicles).
Food, nutrition and infant health
715. In response to the World Declaration on the Survival, Protection and Development of Children, Australias National Program of Action addresses the issue of improving childrens nutrition. The two key strategies at the national level that have an impact on the nutrition status of children are the implementation of the National Food and Nutrition Policy for Australia and the promotion of breastfeeding.
716. The National Food and Nutrition Policy was issued in September 1992. A major project being undertaken is to develop national nutrition education curriculum material for schools, supported by professional development for teachers. The aim of the project is for school students to develop health-promoting behaviour in relation to nutrition.
717. With regard to breastfeeding, relevant activities include:
implementation of the World Health Organisation International Code of Marketing of Breast-milk substitutes. During 1995 the National Health and Medical Research Council will be developing guidelines for health workers to support the World Health Organisation code;
promotion of breast feeding through inclusion in the Dietary Guidelines for Australians of the particular guideline Encouraging and Supporting Breastfeeding and other activities. Separate dietary guidelines for children and adolescents were endorsed by the National Health and Medical Research Council in June 1995. The guidelines are in priority order with encouraging and supporting breastfeeding being number one; and
initiatives of the Infant Nutrition Panel which was established by the National Health and Medical Research Council.
718. The National Food and Nutrition Policy identified certain groups in the Australian community which have poor levels of nutrition. These groups include Aboriginal and Torres Strait Islanders who experience a range of nutrition-related problems, including malnutrition.
719. In Australias National Program of Action it was acknowledged that Aboriginal and Torres Strait Islander peoples have the worst health and infant mortality of any identifiable group in Australia, and that the health of their children is significantly worse than that of other Australian children.
720. The fact that Aboriginal death rates are much higher than for the rest of the population means that the Aboriginal population is relatively young when compared with the non-Aboriginal population. At the 1991 Census the total Aboriginal and Torres Strait Islander population was 265,459, almost 40 per cent of whom were children aged less than 15 years in comparison with 22 per cent of the total Australian population. Similarly, 15 per cent of Aboriginal children were aged less than five years compared with seven per cent of the total population. Only 28 per cent of Aboriginal peoples live in capital cities with easy access to all mainstream health services. One in five reside in remote rural settings, away from cities with basic heath facilities.
721. Aboriginal mothers tend to have babies at a younger age than other mothers. In 1991, more than a quarter of Aboriginal mothers were in their teens. Despite their comparatively young age, higher parity was common in Aboriginal mothers; more than 26 per cent had at least three previous confinements compared with 9.9 per cent of all mothers. Deaths directly attributable to obstetric complications were disproportionately high in Aboriginal mothers. While the number of maternal deaths in Australia has decreased by almost two-thirds since 1970-72 the proportion of Aboriginal women has actually increased. In 1988 Aboriginal mothers accounted for almost 30 per cent of all maternal deaths but less than three per cent of all confinements.
722. The National Aboriginal Health Strategy recommends a number of strategies to reduce the maternal-mortality rate, including ensuring that culturally acceptable antenatal care and education are available, encouraging and facilitating hospital delivery, and providing adequate resources for appropriate health services, particularly in poorly-serviced areas.
723. The strongest predictor of low child-survival rates was large family size. While there has been a decline in the average number of children born to Aboriginal women of child bearing age during 1986-91 the average number of children born to Aboriginal women of child bearing age was about 40 per cent higher than the equivalent figure for non-Aboriginal women (3.1 versus 1.9 children). Various strategies are being implemented to address this issue. For example, Aboriginal health workers now receive training in family planning. See Table F2 for comparative Aboriginal and non-Aboriginals data.
724. In 1991, a total of 7,027 babies born to Aboriginal mothers were identified (2.9 per cent) of all confinements. Areas with the largest number of births were Queensland (2,148), Western Australia (1,460), New South Wales (1,385) and the Northern Territory (1,209).
725. Health issues for adolescent mothers which are likely to impact on the well being of their babies include the incidence of anaemia and to a lesser extent, diabetes and renal problems, alcohol consumption, smoking, poor nutrition, poor general health and inadequate antenatal care.
726. Low birth weight, which is associated with a higher infant mortality rate, is higher among Aboriginal and Torres Strait Islanders infants. In 1991, 13 per cent of Aboriginal babies had low birthweight (less than 2,500 grams), compared with 6.3 per cent of all births. Low birthweight occurred more commonly among Aboriginal babies in the Northern Territory (15.2 per cent) and Western Australia (14.9 per cent) than in other States and Territories. The proportion of stillbirths and neonatal deaths was much higher in Aboriginal babies born in Western Australia than in Aboriginal babies born in other States and Territories. Pre-term birth, maternal nutrition and other factors contribute to the skewed distribution of Aboriginal birthweights.
727. Despite significant declines over the past two to three decades, Aboriginal infant mortality rate remains typically two to three times those of non-Aboriginal infants. The infant mortality rate for Aboriginal infants was 24.6/1000 live births in 1988, approximately three times greater than the 8.3/1000 live births for the total population. See Tables F3 and F4. In 1993, Aboriginal babies accounted for 73 per cent of all infant deaths, but only 38 per cent of all births, in the Northern Territory. A similarly high differential was noted in South Australia, where Aboriginal babies represented three per cent of all births, while the proportion of Aboriginal infant deaths was nine per cent.
728. In summary, the risk factors associated with higher infant mortality rates are:
a lack of education about the potential benefits of antenatal care and inadequate antenatal care;
a high proportion of Aboriginal mothers in their teenage years;
a higher proportion of pre-term births; and
a higher population of babies of low birth weights.
729. The most commonly used indicator of a populations health is life expectancy at birth, that is the number of years a newborn would be expected to live given the prevailing mortality rates. Improvements in Aboriginal life expectancy over the past two decades have been achieved mainly through reduction in infant mortality, however, the expectation of life at birth is still much lower for Aboriginal people than for other Australians. In 1990-92 the average life expectancy of a newborn Aboriginal boy was, depending on where he lived, up to 18.2 years shorter than his non-Aboriginal counterpart. While improvements have been made in infant mortality the high death rates in older age brackets continue to keep Aboriginal life expectancies substantially lower than those for non-Aboriginal people.
730. Lower Aboriginal life expectancy results from consistently higher death rates at all ages, typically two to eight fold in comparison with non-Aboriginal rates. The age-related mortality patterns of Aboriginal people and non-Aboriginal people are in general the same - a significant decline in death rates post-infancy followed by a continuous increase in later years. Aboriginal death rates start rising early, leading to a high differential by the age of 25 years. In 1990-92, the standardised mortality ratio for Aboriginal males was 2.8; the ratio for Aboriginal females was slightly higher at 3.3. In the Northern Territory, the respective standardised mortality rates were 3.3. and 4.2. The causes of infant death, common health problems and rates of hospitalisation are discussed under Part F(c) Basic health and welfare, health and health services below.
731. The Federal Government funds a range of programs which give priority to the needs of indigenous women. They include the National Womens Health Program, the Alternative Birthing Services program, Well Women, Healthy Families. Family Planning and programs for the early detection of breast and cervical cancer. Several States and Territories are also addressing the issue of Aboriginal birthing services. In some cases, facilities are provided specifically for Aboriginal women. Breastfeeding has also been encouraged and has been most successful in instances where Aboriginal or Torres Strait Islander women have been trained as breastfeeding outreach workers, because they have been accepted by the women they aimed to support.
732. The New South Wales Government, through Aboriginal Health Programs, targets Aboriginal nutrition in the areas of education, intersectoral activities, improving the health environment and community development. In addition, in rural/remote areas the New South Wales Government is targeting immunisation, nutrition, early intervention for disabilities, home visiting programs and antenatal care.
733. Strategies adopted in Northern Territory include the following:
the provision of well-baby clinics for growth promotion and health-educational programs for mothers and other family members;
social support and counselling for families with malnourished children and the use of monitoring charts;
encouraging the use of traditional caring and support processes; and
a rural good-food program to improve rural food supply through education and training of rural store workers, and establishment of local food and nutrition policies.
734. The Northern Territory has reviewed all birthing services, paying particular attention to the needs of Aboriginal and Torres Strait Islander women. A research and development project, called Strong Women, Strong Babies, Strong Culture, funded by the National Food and Nutrition Program as part of the National Food and Nutrition Policy, is also being conducted in the Northern Territory.
735. This project aims to develop primary health care nutrition strategies for and in consultation with Aboriginal women, their traditional advisers and health professionals. It aims to develop bi-cultural approaches to antenatal care specifically to improve maternal nutrition and reduce infection during pregnancy, and thus to improve birth outcomes.
736. In Queensland, food and nutrition issues of Aboriginal and Torres Strait Islander children are addressed through a network of Aboriginal health teams, which include Aboriginal health workers and nurses, regional and sector dietitians, community-health workers and child-health centres. Other initiatives include:
well-baby clinics, involving Aboriginal health teams and child or community-health centres;
pre-service and in-service training of Aboriginal health workers, Aboriginal health-promotion officers, Aboriginal community-health workers and community-nutrition workers; and
development of a nationally accredited community-nutrition program for Aboriginal peoples.
737. A research project has been funded to develop models to improve food and nutrition in rural and remote communities using community development approaches.
738. In May 1994, Victoria launched the Victorian Breastfeeding Guidelines in recognition of the need to develop a uniform approach to encouraging and promoting breastfeeding in Victoria. The guidelines were developed by health professionals in consultation with consumers and the Nursing Mothers Association of Australia, and are based on breastfeeding protocols used at the Royal Womens Hospital. The guidelines will be reviewed in the latter half of 1995.
739. Victoria supports the continuation of the distribution of free infant formula to families experiencing financial difficulty via present mechanisms as any alteration to this process could disadvantage children in need.
740. Whilst Victoria supports the distribution of free infant formula to needy families, it also actively promotes breastfeeding.
741. The Food and Nutrition Program targets school aged children, providing education programs on nutrition through work with school canteens. The Victorian Aboriginal Health Service Co-operative Service Ltd provides a program for women and children which aims to develop adequate nutrition and encourage lifestyle changes. The emphasis is on the development of traditional lifestyles realistically adapted to current circumstances. Additionally, a clinic program for under five-year-olds, which includes a paediatric referral service and a hospital and home-visiting service, also emphasises nutrition.
742. Health Promotion Services has developed a nutrition education and promotion resource manual for Aboriginal health worker use, as part of the Nutrition Program. The training program enables Aboriginal health workers to take back to their communities, knowledge and skills on many aspects of infant and child nutrition. The Program also includes health promotion materials, a community stores project and an Aboriginal Market Basket study. The Health Department is developing nutrition policies to help improve the nutritional status in the Aboriginal community and to reduce the serious impact of nutrition-related diseases such as obesity, diabetes and heart disease.
Consumer protection
743. Consumer protection legislation in Australia is concerned with the physical well-being of children. For example, under the Federal Trade Practices Act 1974, either the Attorney-General or the Minister for Consumer Affairs has the power to declare mandatory consumer product safety and information standards, to recall hazardous goods and to ban unsafe goods. Wherever possible standards developed by the Standards Association of Australia are used as the basis for mandatory standards declared under the Trade Practices Act 1974.
744. Amongst the mandatory safety and information standards declared, there have been a number in the field of child related products: flammability requirements for childrens night garments, child restraining devices for use in motor vehicles, reflectors for bicycles, toys for children under three years old, flotation toys and swimming aids. Certain products such as bean bags, which may be harmful to children and which are used by adults, are also subject to safety standards. During 1993-94 activities of the Federal Bureau of Consumer Affairs of particular relevance to children included:
negotiations with the Australian manufacturers and importers of babies bottles and teats for the development of a voluntary code of conduct applying to the marketing of these products;
preparation of a discussion paper on advertising affecting children;
revision and updating of mandatory consumer product safety standards for products such as toys; and
involvement in the development and revision of the Australian Standards for childrens cots, bunk beds and infant rocking cradles.
745. The Bureau launched the first stage of the National Primary School Consumer Education Project on World Consumer Rights Day, 15 March 1994.
746. In the interests of consumer protection a range of regulations in relation to packaging and labelling are in force in Queensland to protect children from the ill effects of accidental ingestion of drugs and poisons. The recommendations of the National Health and Medical Research Council as outlined in the Standards for the Uniform Scheduling of Drugs and Poisons (SUSDP) have been adopted by this State. The SUSDP states that containers of a range of cleaning agents should have child resistant closures. The Poisons Regulations of 1973 also control packaging and labelling of potentially harmful substances to children. Segments within the health education curriculum deal with labelling and packaging and the misuse of drugs.
747. The provisions of the Poisons Regulations prohibit the storage of a dangerous drug, restricted drug or poison within the reach of children. Part C prohibits the display of poisons within the reach of children in shops. S2 and S3 drugs in pharmacies must be displayed behind the counter of the shop out of the reach of children. S7 poisons, including agricultural chemicals, must be stored in a locked area.
748. In order to prevent developmental delay and illness in children due to heavy metal ingestion, the Health Act 1937 prohibits the sale of cooking utensils or appliances containing lead or arsenic. The Act also prohibits the sale or manufacture of toys or food containers containing lead, and other heavy metals such as arsenic, antimony, cadmium, selenium or mercury. The Act prohibits the use of lead in paint and the use of leaded material in certain building materials and water pipes.
(b) Disabled children (Article 23)
Article 23
1. States Parties recognise that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the childs active participation in the community.
2. States Parties recognise the right of the disabled child to special care and shall encourage and ensure the extension, subject to available resources, to the eligible child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the childs condition and to the circumstances of the parents or others caring for the child.
3. Recognising the special needs of a disabled child, assistance extended in accordance with paragraph 2 of the present Article shall be provided free of charge, whenever possible, taking into account the financial resources of the parents or others caring for the child, and shall be designed to ensure that the disabled child has effective access to and receives education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the childs achieving the fullest possible social integration and individual development, including his or her cultural and spiritual development.
4. States Parties shall promote, in the spirit of international co-operation, the exchange of appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children, including dissemination of and access to information concerning methods of rehabilitation, education and vocational services, with the aim of enabling States Parties to improve their capabilities and skills and to widen their experience in these areas. In this regard, particular account shall be taken of the needs of developing countries.
Disability Discrimination Act
749. The substantive provisions of the Federal Disability Discrimination Act 1992 became effective on 1 March 1993. These provisions prohibit discrimination on the ground of disability in the areas of work, education, access to premises, accommodation, land, clubs and incorporated associations, sport, administration of Federal laws and programs, and requests for information. The Act also prohibits harassment of a person with a disability. People who believe that they have been discriminated against on the ground of disability are now able to make an inquiry or lodge a complaint with the Disability Discrimination Commissioner. Children (or, where appropriate, their parents or guardians) may also make inquiries or complaints. Enquiries into complaints of disability discrimination are conducted by the Human Rights and Equal Opportunity Commission. The Federal Government has also established a network of legal advocates to assist people to enforce their rights under the Act.
750. The Disability Discrimination Act 1992 also makes provision for the formulation by the Attorney-General of disability standards in respect of the employment, education, accommodation and the provision of public transport services for a person with a disability and the administration of Federal laws and programs.
Programs for People with a Disability
751. The introduction of the Disability Services Act in 1986 represented an historic step towards addressing long standing barriers facing Australians with a disability. The Act provides a framework for developing a range of support services designed to increase individual independence and integration by all people with a disability, including children, in community life. The Principles and Objectives which underpin the Act reflect a recognition of the need for forms of assistance for people with a disability which are integrated with mainstream services.
752. Under the Disability Services Act 1986 the Minister may approve grants of financial assistance to eligible organisations to enable the provision of a range of services to people with disabilities. Such organisations are required to promote the Principles and Objectives under the Act. The Principles ensure equality of rights for people with disabilities in Australian society, while the Objectives define the manner of service delivery to ensure positive outcomes for the users of services. The Principles and Objectives are generally consistent with the provisions of the Convention.
753. In signing the Federal-State Disability Agreement in 1992, each State and Territory agreed to introduce complementary legislation to the Disability Services Act 1986, ensuring a national framework for the rights of people with a disability in the delivery of State programs and services. Under this Agreement, responsibility for accommodation services, some of which cater for children, has been transferred to the State and Territory Governments, while employment services, which cater to adolescents and adults, are a Federal responsibility.
754. In 1991 the Federal Government also introduced the Disability Reform Package, an integrated system of payments and support for people with disabilities which links disability support pension recipients with appropriate vocational training, rehabilitation and employment placement services.
755. One emphasis of the Disability Task Force, a cross-departmental working group looking to improve opportunities for people with disabilities, has been on youth and on ensuring that adequate assistance and support is provided to young people with disabilities in their progress to adulthood and independence, including further education, training and work. Young people with disabilities who are making the transition from school to work were a priority group for access to 4,000 new employment places established between 1991-94 under the Disability Reform Package. The aim of the package is to improve the access of people with disabilities to employment in the open labour market by offering them a fast track to rehabilitation, training and employment-support assistance.
756. A recent initiative is the Commonwealth Disability Strategy. Under the Commonwealth Disability Strategy, children are considered to be an additionally disadvantaged group. This means that Federal Departments and agencies will be expected to provide specific information about the progress of activities to address children with a disabilitys needs.
Commonwealth Rehabilitation Service
757. The Commonwealth Rehabilitation Service (CRS) provides vocational rehabilitation programs to people with disabilities through an Australia-wide network of over 170 locations. Programs assist individuals with work and independent-living goals to maximise their opportunities for participation and integration into the community.
758. Children aged 14 years or more, including school children, are eligible to be considered for assistance by the CRS. Vocational rehabilitation programs are used to assist children with disabilities in the transition from school to work and the wider community.
Home and Community Care Program
759. The joint Federal and State Governments Home and Community Care Program (HACC) enhances the quality of life of young people with disabilities within the community by:
providing a comprehensive and integrated range of basic support services for frail aged and younger people with disabilities, and their carers; and
helping people to be more independent at home and in the community, thereby preventing their inappropriate admission to long term residential care.
760. The types of service available through HACC are:
home help or personal care;
community nursing;
food services;
community transport;
home maintenance or modification;
respite care;
day care centres;
community options; and
allied health services.
Hearing Services Program
761. The Federal Governments Hearing Services Program provides services to all Australian children (under 21 years of age) with a hearing disability. In a typical year the program tests over 21,500 children for hearing loss, and over 600 of these are fitted with hearing devices. All major services are provided free of charge. These cover assessment of hearing loss, ear, nose and throat consultations, fitting of an appropriate hearing aid/device, and counselling for children and carers on communication for the hearing impaired. A nominal annual charge covers the repair and maintenance of hearing aids/devices and the supply of batteries. This charge is waived for the children of social security beneficiaries.
762. The Hearing Services Program aims to deliver culturally sensitive hearing rehabilitation programs to the children of indigenous Australians. To this end the Program conducts, in collaboration with public health and education agencies, assessment and rehabilitation activities in urban and remote areas of all States. The majority of these are school-based programs. Existing management information systems do not provide accurate statistical information on the number of Aboriginal and Torres Strait Islander children currently receiving services from the Program.
Childrens services (child care)
763. Children with disabilities are generally well represented in community based long day care centres, being 3.2 per cent of current users (1993 Child Care Census) as compared with 4.4 per cent of the total population in the zero to four age group (Australian Bureau of Statistics Survey of Disability and Ageing, 1993).
764. Assistance is available to support children with additional needs in all federally-funded child care service types, including community-based and private Long Day Care Centres, Occasional Care, Family Day Care and Outside School Hours Care. There are three programs of specific assistance: Supplementary Services Funding; Disabled Supplementary Grants; and Special Services Program Funding.
765. Supplementary Services assistance is provided under the Federal Governments Childrens Services Program to assist children with special or additional needs to gain access to, and appropriate care in, mainstream child care services. The priority groups for these services include children with a disability. The Federal Government in the 1995-96 Budget has increased support for children with additional needs through the provision of additional funding of $17.2 million over four years to expand the Supplementary Services Program (SUPS).
766. In addition, Disabled Supplementary Services Grants are available to family day care units for children with a disability. The grants are a regular payment in recognition of the additional care and attention that children with a disability require. They are designed to ensure that fees charged to families of children with a disability are not higher than those charged to other families.
767. Special Services funding is also provided under the Childrens Services Program for a wide range of purposes. The priority groups for assistance under Special Services include children with a disability.
768. Forms of assistance for children with a disability under Special Services Program include:
Funding of Resource and Advisory agencies whose role includes research into need, training and counselling of child care staff to work with children with special needs, publicity, resource production and community outreach;
Toy libraries providing special toys and equipment for children with a disability; and
Disability Childrens Service workers, who primarily work within the community raising awareness of the availability of child care for children with a disability or who have disabled parents.
Child Disability Allowance
769. This allowance aims to provide extra financial assistance for families with children with disabilities who require extra care and attention. It seeks to encourage family rather than institutional care.
770. The National Child Protection Councils terms of reference include the special child abuse prevention needs of children with physical disabilities or developmentally delayed children. The plan of action for children with disabilities has been completed and is being considered by the Department of Human Services and Health.
Sterilisation of children
771. In the High Court decision in Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 (referred to as Marions Case although not her real name) it was held that parents or guardians of disabled children cannot give consent to an operation which sterilises a child in the absence of medical necessity to treat some malfunction or disease. Judicial approval must be obtained unless legislation exists which provides the requisite procedural safeguards protecting the best interests of the child.
772. Following the decision in Marions Case, the common law in Australia on legal competence to consent to medical procedures on children under 18 years of age can be summarised as follows. In general, children can consent to certain kinds of medical procedures where they are sufficiently mature to make decisions concerning their own medical treatment (under the principle adopted by the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112). Where a child is incapable of giving valid consent to medical treatment, parents or guardians who have the primary responsibility for the childs welfare may in a wide range of circumstances consent to medical treatment of their minor child. In relation to children with disabilities, the High Court stressed in Marions Case that it cannot be presumed that an intellectually disabled child is, by virtue of his or her disability, incapable of giving consent to treatment. Instead, each case must be considered by reference to the particular persons capacity and understanding.
773. In the case of sterilisation of children who lack the capacity to consent, however, neither the child nor the childs parents can consent to the procedure. Only a court can do so, unless legislation provides otherwise. The Family Court of Australia is able to authorise such an operation, but is not the only court or decision making body in Australia which can do so.
774. It seems to follow from this view, taking into account the High Courts reasons for requiring the involvement of an outside decision maker in cases involving sterilisation, that even a Gillick-competent child cannot consent to his or her own sterilisation, unless it falls within the exception marked out by the High Court.
775. The one exception made by the High Court is the case of a therapeutic procedure in which sterilisation is an incident of treatment, a by-product of surgery appropriately carried out to treat some malfunction or disease eg surgical removal of the ovaries or testes because of cancer or sterilisation resulting from chemotherapy or radiotherapy.
776. The High Court in Marions Case noted that legislation could specifically provide for the circumstances in which sterilisation of a person under 18 could be authorised. Two States, New South Wales and South Australia, have legislation dealing with the circumstances in which such procedures may be authorised. In Queensland, the Transplantation and Anatomy Act 1979 states that a person under the age of 18 years cannot consent to the removal of regenerative tissue.
777. In New South Wales, special medical treatment, which includes a medical procedure which is intended, or reasonably likely, to render a child under 16 years of age sterile, requires the consent of the Supreme Court. Before giving its consent, the Children (Care and Protection) Act 1987 requires the court to be satisfied that the treatment is necessary to prevent serious damage to the childs health. In case of emergency, a medical practitioner may carry out special medical treatment without the consent of the court.
778. Where the person is 16 to 17 years of age, she or he may consent to the procedure. If such a person is incapable of giving a valid consent, and the procedure is likely to render the person sterile, only the New South Wales Guardianship Board may authorise the procedure (Guardianship Act 1987).
779. The South Australian Guardianship and Administration Act 1993 contains special provisions for the sterilisation of mentally incapacitated children. Such children cannot be sterilised without an order of the Guardianship Board.
780. The other States and Territories do not have legislation which specifically regulates the sterilisation of children. Marions Case held that Part VII of the Family Law Act confers a welfare jurisdiction on the Family Court which is similar to the parens patriae jurisdiction of the Supreme Court and which extends to the authorisation of medical procedures, including sterilisation. This was confirmed in P v P, a recent High Court case, (1994) 17 Fam LR 457, at least with respect to children of a marriage. In that case, the High Court held that the Family Law Act 1975 confers on the Family Court the power to make an order authorising a person to carry out, on a child of a marriage, medical treatment in New South Wales that is intended, or is reasonably likely, to have the effect of rendering the child permanently infertile, in circumstances where the carrying out of the treatment would otherwise be contrary to the Guardianship Act 1987 (New South Wales). It now seems clear that the Family Court has power to authorise sterilisations, at least with respect to children of a marriage, in all Australian States and Territories, including New South Wales and South Australia.
781. In November 1994 the Family Law Council issued a report on Sterilisation and Other Medical Procedures on Children. The issue arose because in recent years the courts in Australia had been increasingly called on to make decisions involving medical matters. By far the largest volume of these decisions have involved applications for sterilisation, most commonly involving young women with intellectual disabilities. Among the reports recommendations were the following:
there should be a new division in the Family Law Act 1975 regulating the sterilisation of young people;
the legislation should provide that no person under the age of 18 years shall be sterilised unless the procedure is necessary to save life or to prevent serious damage to the persons physical or psychological health; and
any person under the age of 18 years who is the subject of an application for sterilisation must have independent legal representation in the event of a court hearing.
782. The Standing Committee of Attorneys-General will soon be considering proposals by the Federal Government in response to the Report by the Family Law Council. These proposals for reform will include the development of a consistent national approach to the issue of consent to sterilisation of children.
783. The Western Australian Law Reform Commission released a report (October 1994) Consent to Sterilisation of Minors. This report recognised that the Federal Government would be considering legislative reform and this report will also be considered by the Standing Committee of Attorney-General when the Federal Governments proposals are examined.
784. All States and Territories have disabilities legislation and a range of programs for people with disabilities:
Disability Services Act 1991
New South Wales: Anti-Discrimination Act 1977 (provisions relating to impairment commenced in 1982)
Disability Services Act 1993
Guardianship Act 1987
Disability Services Act 1992
South Australia: Equal Opportunity Act 1984 (commenced March 1986)
Tasmania: Mental Health Act 1963, only includes people with psychiatric and intellectual disabilities
Victoria: Equal Opportunity Act 1984
Intellectually Disabled Persons Services Act 1986
Western Australia: Equal Opportunity Act 1984 (commenced July 1986)
785. The States and Territories currently operate work experience programs for disabled students, which are subsidised by the Federal Department of Employment, Education and Training. The programs allow students placed in special classes, or receiving special education services, to take part in a maximum of 100 days per year of paid work experience. Employers pay the students the minimum award rate and are subsidised by the Federal Government. The programs enable students with disabilities to participate in a long-term work experience situation to develop both the skills of the workplace and their own self-esteem.
Health services
786. ACT Health provides grants for a number of groups who provide services to disabled youth:
The Richmond Fellowship provides supported accommodation for those with mental health conditions;
Northside Contractors provides casual work for those with a psychiatric disability;
Medea provides supported accommodation for women who are emotionally or psychiatrically distressed and their children; and
The Australian Capital Territory Cancer Society provides specific youth support programs.
787. Mental health services are provided to young people by both Government and non-Government agencies. Outpatient services are offered by regional teams based at four Health Centres, and by the Child and Adolescent Unit (CAU) of the Mental Health Branch, which caters for children up to 16 years of age. The CAU also provides a consultative service for the Adolescent Day Unit run by the Department of Community Services. The Australian Capital Territory Health Department provides grants for a number of groups who provide services to disabled youth.
788. At present there are no in-patient mental health services for children in the Australian Capital Territory and those children who need this service are sent interstate. Submissions have been made to have designated beds made available for Child Psychiatry in the new Adolescent ward at Woden Valley Hospital and it is hoped that this proposal will be adopted. Very disturbed children and adolescents are referred to in-patient services in New South Wales. The Australian Capital Territory Department of Health would like to develop a regional service in conjunction with South-East New South Wales.
789. Community nurses offer a schedule of health checks to identify early on any developmental delays or health-related problems. Emphasis is placed on parenting education and parent support through a variety of services including clinics, group work and family care centres.
Education
790. The Australian Capital Territory Department of Education and Training has a commitment to the education of students with disabilities through providing a range of options for placement, which are outlined below. Special School settings provide education for students with disabilities from three years to 20 years of age. Programs centre on the development of functional numeracy and literacy skills, communication, self-esteem, independent living, social and behavioural skills. A range of integration and reverse integration activities in regular schools are negotiated for students when it is considered to be appropriate by the school and parents.
791. In the Australian Capital Territory the following programs are developed for, and directed to, students with special physical, intellectual and emotional needs:
Supplementary support and the Integration Program provide integration for students with disabilities into regular schools. Support is provided through Special Teachers Assistants, professional development for staff and itinerant teachers.
Itinerant support is available to enable individual students or groups of students to continue to receive their education in regular settings. Programs include hearing impaired, vision impaired and typing services. The support of a Braille Transcriber may be provided to a blind student where appropriate.
Early Intervention Services are provided for children with special needs from birth to six years of age. Sensory impaired children receive services from diagnosis. An educational and therapy playgroup services children from the age of 18 months to three years. Early Intervention Units provide a program in regular preschool settings, the Autistic Unit provides a special program for three to six year old children with autism and three special settings have early intervention programs.
The Hospital School program is provided at Woden Valley Hospital for students from Kindergarten to Year 12 who are short or long term patients in the hospital. A service for students who are chronically ill is provided in the home situation by a voluntary group of student teachers administered by a qualified teacher.
A Behaviour Management Support program provides a service for students exhibiting significant behaviour problems. The Program has Primary, Secondary and Adolescent Units in addition to an Itinerant Consultancy Service to mainstream schools.
Special Classes and units located in regular schools provide school based special education programs to eligible students. Students are involved in intensive programs on a full-time or part-time basis with appropriate integration of students into regular classes. Current programs include Junior Assessment Classes, Learning Centres, Combined Junior Assessment/Learning Centres, Communication Disorder Classes and Hearing Impaired Support Units.
The Aussie Sports program, which involves modified versions of adult sports for children, is offered to all children, regardless of ability. Specialised sports programs are also offered to students at special schools. Students with disabilities participate in the Pacific School Games, which are held every four years.
LINC (Learning In New Classes Team) provides transition and integration support for students with disabilities moving from a special school to a special class, a special class to a regular class or a special school to a regular class. Support is provided both to the student and to the class teacher on a short term basis of up to 12 months.
792. The New South Wales Department of Community Services administers relevant programs and legislation. This includes the Home and Community Care Program administered in conjunction with the Federal Government, which is subject to national standards, and the Disability Services Act 1993 in accordance with the Commonwealth-State Disability Services Agreement. Both the standards and the agreement set out mechanisms to give effect to the rights of children with disabilities. An Interdepartmental Task Force on Early Intervention was established in 1991 to co-ordinate policy development and service delivery to children with developmental disabilities.
Special Education Services
793. A five-year $80 million Special Education Plan is designed to upgrade Special Education Services in New South Wales schools and Colleges of Technical and Further Education. Now into its third year, many initiatives have already had substantial and demonstrable effects in improving the quality of services provided to students with identified disabilities or learning difficulties. Examples of initiatives include establishing:
Special Education Support Centres;
the Reading Recovery Program;
the Early School Support Program for students with Mild Intellectual Disabilities;
units for students with severe conduct disorders; and
special curricula for students with severe disabilities and for students with moderate intellectual disabilities.
Workplace for Disabled Youth
794. The Workplace for Disabled Youth component of the community based Employment/Training (Youth) Program aims to place approximately 300 young people with disabilities into training and employment programs. Funds are provided to community organisations currently working in the disability services area to employ workplace officers to work individually with young people.
795. The Guardianship Act 1987 provides far-reaching recognition of the rights of people with disabilities. Under this Act the Guardianship Board:
promotes the welfare and interests of persons with disabilities by providing a legal framework for the appointment of a guardian or administrator where the person lacks decision making capability in one or more major life activities;
enables persons with disabilities to gain greater independence and enhance their prospects to live a normal life in the community;
protects people with disabilities from abuse, exploitation or neglect; and
ensures that people are not deprived of necessary medical or dental treatment merely because they lack the capacity to consent to the carrying out of such treatment, and that the treatment is carried out for the purpose only of promoting and maintaining their health and well-being.
Aural Habitation Program
796. An Aural Habitation Program to improve use of residual hearing and to help develop the speech potential of students with hearing disabilities has been produced. Significant enhancements have been made to existing services for students with learning difficulties, behaviour disorders and secondary students with mild intellectual disabilities.
Special health needs
797. The special health needs of young people with disabilities are met through specialised youth services such as the Adolescent Medical Units at Westmead Hospital and the Royal Alexandra Hospital for Children and through public hospitals and community health services.
798. The objectives of the Northern Territory Government are:
to ensure that persons with disabilities receive the services necessary to enable them to achieve their maximum potential as members of the community;
to ensure that services provided to persons with disabilities:
- further the integration of persons with disabilities in the community and complement services available generally to persons in the community;
- enable persons with disabilities to achieve outcomes such as increased independence, employment opportunities and integration in the community; and
- are provided in ways that promote in the community a positive image of persons with disabilities and enhance their self-esteem;
to ensure that the provision of services takes into account the outcomes to be achieved by persons with disabilities; and
to encourage innovation in the provision of services for persons with disabilities.
799. The Department of Health and Community Services administers the Aged and Disability Services program which includes both health and community services, and provides a mix of prevention, co-ordination and treatment services, together with a range of grant/funded support services through non-government organisations. Support is provided to frail aged, people with disabilities (including children with disabilities) and their families and carers to assist them to maintain maximum independence and quality of life in their own communities. Services provided through non-government organisations which specifically target children with disabilities include accommodation support, respite care, early intervention, supported access to recreation opportunities and advocacy. Services directly provided by the Department of Health and Community Services include allied health and therapy assessment and treatment services, a specialist behavioural assessment and support unit and an aids and appliances scheme. Children with disabilities also have access to acute medical and other health care services through the public hospital system, community health centres and community care centres. The Home and Community Care Program also targets children with disabilities.
800. The objectives of the Queensland Government are:
to ensure young people with a disability have equal access to the community by overcoming barriers within services and providing specific programs which emphasise abilities and encourage full participation;
to ensure the rights of disabled people as outlined in the UN Declaration on the Rights of the Disabled Person and the UN Convention on the Rights of the Child;
to ensure all Government and community services are accessible to disabled people;
to provide clear principles and objectives for services for disabled young people, with clear mechanisms for dealing with complaints, appeals and for monitoring;
to consult with young people with disabilities in the design and management of services for disabled young people;
to ensure disabled young people have fair and equal access to education, training, employment and recreation;
to implement strategies which promote a positive image of young people with disabilities;
to ensure young people with disabilities receive accommodation support to enable them to choose independent lifestyles; and
to ensure families care-givers have access to adequate support services.
Youth policy
801. The Queensland Government Youth Policy clearly outlines, within its principles and objectives, the Governments commitment to the rights and needs of young people aged 12 to 25 years with a disability and their families. The Governments commitment through the Youth Policy extends to establishing equal, effective and comprehensive rights, including political, legal and industrial rights for all people regardless of income, age, disability, social or ethnic background, gender or sexual orientation. These principles and objectives are commensurate with the goals and objectives of the Queensland Disability Services Act 1992.
802. Free public hospital services are available for disabled children. Physiotherapy, occupational therapy and speech therapy services are available in the hospitals of major centres. Rehabilitation services for disabled children are also provided by private organisations and the Education Department. Regional health authorities provide hospital or community based services to deal with children with neuro-developmental problems.
Services to people with a disability
803. The Department of Family Services and Aboriginal and Islander Affairs administers the Disability Program, which provides funding and other support to community organisations providing services to people with disabilities. The Disability Services Act 1992 requires that service providers maintain the principles and promote the objectives of the Act in the development and implementation of programs and services for people with disabilities. This applies regardless of the age of the person with the disability or the origin, nature, type and degree of the disability.
804. The Division of Intellectual Disability Services of the Department provides a range of residential and other direct care options for children with intellectual disabilities who fall within the Divisions target population, which is:
people with severe and profound intellectual disabilities;
children too young for definitive assessment; and
people with intellectual disabilities who have challenging behaviour.
805. Services are regionalised and provided through five Regional Offices, 11 Intellectual Disability Offices, three area services, three Residential Centres, three community villas and a number of community-based houses. As well as residential care, services include individual service arrangements (which may include substitute care), a range of respite care options, resource and assessment services, counselling, therapy and specialist support. Currently there is no state legislation specific to provision of services by the Division of Intellectual Disability Services. Divisional policy gives priority to services which will prevent admission of children to residential care, and to relocating children out of residential institutions.
806. Children with intellectual disabilities whose parents are unable or unwilling to exercise their guardianship role, or who are at significant risk of harm, may be taken into the care of the Director-General pursuant to the provisions of the Childrens Services Act 1965. The Division of Protective Services and Juvenile Justice, under its Protective Services program, administers alternative care arrangements for children under care orders who have been separated from their family. Alternative care options include foster care and licensed residential care.
807. Thus, both Divisions include in their client groups children with intellectual disabilities who are separated from their families. Under both programs, priority is given to providing what special assistance and supports may be needed to maintain the child within the family unit.
Children in remote areas
808. With regard to services for children living in the outback, the Disability Services Act 1992 requires that programs and services should be designed and implemented to meet the needs of people with disabilities who may experience additional disadvantage because:
they are Aboriginal or Torres Strait Islanders; or
of their sex, ethnic origin or location.
809. Respite care services in North Queensland and in other rural and remote areas of the State in receipt of funding through the Disability Program of Community Services Development, provide services to both children and adults with disabilities living with their families. The Division of Community Services Development also administers cross-program funding for rural and remote areas through which families have access to child care and support services for people with disabilities.
810. The Division of Intellectual Disability Services has an outreach service in south-west Queensland and a rural and remote areas co-ordination service in central Queensland. The outreach service has a multi-disciplinary team which visits children and their families in the outback. The co-ordinator of the rural and remote areas service facilitates access to generic community services for families requiring assistance with caring for their children.
811. Services for people with disabilities are generally provided by the Health Commissions Disability Services Division and the Education Department. The Crippled Childrens Association is the only agency which deals specifically with children. Most other organisations deal with both adults and children. The Disability Services division deals with a number of other organisations including the Intellectual Disability Services Council and head injury organisations. The programs provided for people with disabilities include respite, supported accommodation, and home support (including personal care, nursing and recreational programs). The Education Department provides after school care, transport to and from school and vocational training.
812. There have been no cut backs to any of the above programs and additional funds have been provided through the Commonwealth-State Disability Agreement. Whilst most of the funding is not directed at children, they will also benefit from the increase in funding. A one-off sum of $1.7 million has been provided, with a sum of $2.9 million designated as ongoing funding. Of the ongoing funding, $15,000 has been targeted for the Juvenile Arthritis Support Program. A further $20,000 has been allocated to young people not attending school, who exhibit challenging behaviour.
813. The goal of the Disability Services and Community Support Program within the Department of Community Service is to ensure that people in Tasmania who have physical, sensory, intellectual or psychiatric disabilities have access to the opportunity to meet their individual needs for community living, accommodation, employment, leisure and recreation, community activities, prevention advocacy and community education. Children are included in this goal. No child or person under the age of 21 with a disability is institutionalised. A new State Disability Services Bill has been introduced into Parliament which extends the States responsibilities for people with disabilities.
814. The document Policy, Practice and Procedures for Early Intervention Services in Victoria outlines the principles which underpin the delivery of services for children with additional needs from birth to school entry, which includes disabilities, in Victoria.
815. The Victorian Government believes that all children have the right to a range of services to help meet their needs for physical, social and emotional well being. The provision of early intervention services to provide programs as early as possible in a childs life is one way Victoria ensures that young children with disabilities can actively participate in their local community services and activities. Early intervention services minimise the impact of development delays and/or specific disabilities on childrens development by providing support and interventions that build on their existing development, skills and competencies. The Government currently has a dual role in early intervention, including the non-government sector.
816. Specialist Childrens Services Teams were formed in 1994 following the merger of the former Health Department's Allied Health Teams and Community Services and Victorias Early Intervention Teams. The merger provides a single point of contact for families who have concerns about their childs development or where a child has a developmental disability.
817. Working partnerships between services and families is central to all early intervention activities in Victoria. Family centred practice is based on the belief that specialist services are delivered in the context of the child and the family. Services are responsive to each familys lifestyle, needs and changing circumstances. Strengthening each familys ability to meet their and their childs needs is fundamental to the way services and agencies provide support. Family centred practice includes promoting the rights of children with disabilities and their families to a quality of life as close as possible to the established expectations and experiences of all children and families in the community.
818. The Victorian Government has a strong commitment to the provision of pre-school programs in the year prior to school entry. Support for the inclusion of children with disabilities in these programs is provided through specialist childrens services teams, funded early intervention agencies and pre-school field officers. The role of these specialist services includes the provisions of information and support to general service providers, consultancy, in-service training and direct program assistance. A Curriculum development booklet and video on inclusion, for staff in general childrens services was developed and distributed across the state in 1994. Further, a project to develop a co-ordinated system of support in preschool and child care services is being undertaken in 1995.
819. Children with disabilities and their families have access to information, therapy and health care services through a wide range of health services. The Royal Childrens Hospital and Monash Medical Centre provide rehabilitation and outpatients services for children with disabilities, as do the paediatric departments of some other major hospitals. Community based therapy and support services are available through Community Health Centres, specialist childrens services teams and funded early intervention programs. The provision of home based support through domestic home held and child care has been provided through the Home and Community Care Program. Victoria also provides respite for families of young children with disabilities through community residential units and in-home care linked to adult disability services. Early Choices which is a respite and family support program has been established in 1995. Early Choices is available to meet the needs of families who have children with severe disabilities and high support needs. The program has a strong case management focus and provides flexible models of support in response to childrens and families identified needs.
820. The Home and Community Care Program (HACC) offers a wide range of services and supports to families with a disability. HACC services are offered by a range of service providers, predominantly local government, and fees are levied on many of the services offered. The setting of fees is the responsibility of individual service agencies within the framework of HACC policy and guidelines. The over riding principle will remain that nobody be denied service due to an inability to pay.
821. Victoria has provided support to the Australian Early Intervention Associations (Victoria Chapter) 11th Annual conference in 1995. The conference is an important vehicle for promoting dissemination of information concerning research and education in early intervention for practitioners. Specialist Childrens Services Unit of Health and Community Services Victoria will be sponsoring research in 1995 to assist the identification of effective programs for children with additional needs and their families. The outcomes of this research will be used to further develop effective early intervention services which are responsive to children and families in Victoria.
822. The Health Department provides a number of services for disabled children and also contributes to services provided by other agencies such as the Authority for Intellectually Handicapped Persons. The State Child Development Centre, Community and Child Health Services Centres, and Princess Margaret Hospital all provide assessment, management and rehabilitation services for disabled children. Health professionals working at Princess Margaret Hospital and the State Child Development Centre contribute to and exchange appropriate information in the field of preventive health care and of medical, psychological and functional treatment of disabled children on an international basis.
Authority for Intellectually Handicapped Persons
823. The Authority for Intellectually Handicapped Persons Act 1985 established the Authority for Intellectually Handicapped Persons in 1986. The Authority is responsible for advancing the welfare of people with an intellectual disability by providing and coordinating appropriate services in cooperation with other Government and non-Government organisations. The Authority is responsible to Parliament through the Minister for Disability Services. The proposed Commission for Disability Services will include the Authority.
824. Irrabeena is the service delivery arm of the Authority and is responsible to the Authority through the Director. As the service arm of the Authority, Irrabeena is responsible for providing services to all registered active clients throughout Western Australia. It provides a comprehensive range of services to people whose needs, as a result of their handicap, cannot be met by other agencies. All children registered with Irrabeena are provided with a range of appropriate services in their preschool years. Services are available to children of school age under the family support program.
Accommodation Services Program
825. The Accommodation Services Program provides a positive home environment for people with an intellectual disability which best meets their individual needs and aspirations. However, the major thrust is to support families to care for children, and the accommodation service is one of last resort.
(c) Health and health services (Article 24)
Article 24
1. States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:
(b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care;
(c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;
(d) To ensure appropriate pre-natal and post-natal health care for mothers;
(e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breast-feeding, hygiene and environmental sanitation and the prevention of accidents;
(f) To develop preventive health care, guidance for parents and family planning education and services.
4. States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realisation of the right recognised in the present Article. In this regard, particular account shall be taken of the needs of developing countries.
826. Generally speaking the health status of young Australians is high, but evidence shows that there are significant inequalities in health status among children and young people, particularly those from poor and/or dysfunctional families, those living in rural or remote areas and those of Aboriginal or Torres Strait Islander backgrounds. See Table F5 for details of the seven most frequently reported illness conditions by children during 1989 and 1990.
827. There is growing recognition that good health does not happen automatically and that ongoing positive investments are needed to ensure that infants grow into competent, participative members of the community. Australia in recent years has undertaken a series of collaborative Federal/State and Territory initiatives to further the health and well-being of young Australians.
828. National Health Goals and Targets for Australian Children and Young People were produced in 1992 and are now incorporated into service delivery planning in most States and Territories. In 1993 the National Health and Medical Research Council undertook a comprehensive review of Child Health Surveillance and Screening in Australia.
829. A National Health Policy for Children and Young People was endorsed by Federal, State and Territory Health Ministers in June 1995. The Policy identifies key areas where action is needed to maintain and improve the health of children and young people. A national implementation plan is now being drafted to provide a framework for developing cooperative Federal, State and Territory initiatives in health for young Australians.
Medicare
830. Australia has a universal health care scheme known as Medicare. This scheme covers all Australian residents as defined in the legislation (the Health Insurance Act 1973) including children. The Medicare Benefits Schedule contains a number of services which are provided specifically for children. This is in recognition of the special medical needs of the infant or child in that certain procedures are performed only on children, or may be more intricate and time consuming than the equivalent procedure performed on an adult.
831. Recent reforms to Medicare have been designed with a safety net to protect families with chronically ill children or who are otherwise high users of medical services from excessive medical expenses. Under the Medicare safety net, once patients contributions to the scheduled cost of Medicare services reach the set threshold in any calendar year, the gap between the benefit and the Schedule fee or the fee charged (whichever is lower) for all subsequent services in that year is paid in full by the Federal Government. From 1 January 1995, the threshold, which applies equally for individuals and families, was $258.30.
832. The Medicare scheme does not generally cover dental services. However, under an initiative implemented by the Government in 1981 special provision is made for young people with cleft lip and cleft palate conditions to receive dental treatment under Medicare.
Pharmaceutical Benefits Scheme
833. For more than 40 years the Pharmaceutical Benefits Scheme (PBS) has helped to make life-saving and disease-preventing medicines available to all Australians, regardless of health, income or age. Children from all social backgrounds have equal access to prescription drugs through the PBS. Children disadvantaged for financial or health reasons are entitled to receive prescription drugs at the concession rate, in accordance with guidelines set out by the Federal Department of Social Security.
National immunisation program
834. As part of the National Program of Action for the Survival, Protection and Development of Children, the national immunisation program seeks to increase the chances of every childs survival and development. It also seeks to ensure every childs right to the highest attainable standard of health. Increasing immunisation rates will diminish infant and child mortality as well as diminishing vaccine-preventable diseases. Infectious diseases such as diphtheria, whooping cough and polio are no longer major causes of death and disability in Australia due to mass immunisation programs.
835. Between 1983 and 1989-90, due to the introduction of a combined measles/mumps vaccination, there was a rise in the proportion of six year olds fully immunised against measles. However, during the same period there was a decline in the proportion fully immunised against whooping cough. Overall the proportion of six year olds fully immunised against diphtheria/tetanus, whooping cough, polio and measles rose from 55 per cent in 1983 to 71 per cent in 1989-90. Including mumps in the analysis reduced the figure to 68.7 per cent. See Table F6.
836. Of children aged six and under, just over half (52.9 per cent) were identified as being fully immunised against all conditions (diphtheria, tetanus, whooping cough, polio, mumps and measles). A further 29.5 per cent were recorded as being partly immunised and 3.6 per cent are not immunised against any of the conditions and the immunisation status was not known for a further 14.1 per cent. A slightly higher proportion of girls than boys aged six years and older were identified as fully immunised. The proportion of children fully immunised differed between States and Territories from 46.4 per cent in the Northern Territory to 64.3 per cent in the Australian Capital Territory.
837. The only available information on immunisation amongst Aboriginal children is unpublished data from the National Health Survey which shows that the proportion of Aboriginal and Torres Strait Islander children aged zero to six years fully immunised for all conditions was considerable less that the total population at 37 per cent. The number of Aboriginal and Torres Strait Islander people in the survey as a whole was small and consequently the data may not be representative. Data on the health status of Aboriginal and Torres Strait Islander children is discussed below.
838. Recently there has been concern over perceived low levels of immunisation against conditions such as whooping cough and measles in Australia. There have also been reported outbreaks of these diseases in some States. Reported cases of measles rose from 248 in 1988, when the disease was declared notifiable to 4,461 in 1993. In addition there were 153 cases of whooping cough in 1988 compared to 3,956 in 1993. However, deaths from these two conditions remain low with 18 deaths due to measles and six due to whooping cough in the period 1988-92.
839. UNICEF has set a target for measles immunisation at 80 per cent of one year olds immunised against measles by 1990 and 90 per cent by the year 2000. In the Progress of Nations report released by UNICEF in 1991, Australia was ranked 26th among industrialised nations in terms of measles immunisation of children aged one year old with 68 per cent of one year olds immunised against measles. The National Health Survey found that in 1989-90, 67 per cent of one year olds were fully immunised against measles compared to 92 per cent of two year olds. The low level of immunisation of one year olds reflects the later administration of the measles vaccine rather than a failure to immunise.
840. In the 1995-96 budget the Government announced that it would be addressing the fall in immunisation rates among children with the national immunisation program being given an extra $24 million over two years.
841. Some of the responses to the problem of poor health in Aboriginal and Torres Strait Islander children and the lower levels of immunisation include:
provision by the Aboriginal Health Services Cooperative of an immunisation program to Aboriginal communities;
free vaccination against Haemophilus Influenza type b(Hib) for all children under five years, including special arrangements to ensure that indigenous children are protected;
strategies to improve water quality, sanitation and housing; and
the development of a National Childhood Immunisation Strategy for Aboriginal and Torres Strait Islander children. The strategy aims to increase immunisation coverage rates for indigenous children by supporting the development of community based education initiatives and enhancing immunisation coverage data so that services can better plan the development and delivery of immunisation services.
Nutrition
842. This issue is covered in Part F(a), Basic health and welfare, Survival and development, above.
HIV and AIDS
843. The spread of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS) related diseases has been of considerable concern in Australia. One concern has been the spread of HIV through blood transfusions and blood products which have resulted in actions for compensation against blood banks which may have jeopardised the continuation of such an important public service. This risk has been diminished to negligible levels by the availability since 1985 of antibody screening of the blood supply and heat treatment of blood products such as clotting factor for people with haemophilia. A variety of legislation (blood shield statutes) has been passed in all jurisdictions to deal with this and related problems. Although no court decisions have been favourable to applicants infected with HIV through medical procedures, compensation settlements have been made in all jurisdictions out of court. The Federal Government has also established the Mark Fitzpatrick Trust for the benefit of people infected in this manner.
844. Another relevant route of transmission is from HIV-infected mother to infant. Studies show the risk to be up to 25 per cent either in-u