Each year we join with the National Children’s and Youth Law Centre and King & Wood Mallesons to produce a special Children's Rights Edition of our monthly bulletin, Rights Agenda. (You can download the PDF version here.)
Introduction from Professor Thomas Crofts
Following on from Youth Week last week, this edition of the Rights Agenda, compiled and edited by the National Children’s and Youth Law Centre at The University of New South Wales and by King & Wood Mallesons, draws together a range of articles exploring important recent issues and developments in children’s rights. The articles show that while progress continues to be made throughout Australia in protecting children’s rights and implementing obligations under the UN Convention on the Rights of the Child (CRC) there is still room for improvement. The young authors, most of whom were summer clerks at King & Wood Mallesons at the time of writing, highlight where more can be done and make valid, practical and achievable recommendations on how the identified shortcomings can be remedied. A clear theme through many of these articles, the topics for which were suggested by members of the Australian Child Rights Taskforce (the peak body for child rights in Australia), is that children need to be given a stronger voice in matters affecting them.
The importance of giving children a voice and listening to their views is highlighted in the article The Children’s Champion – A Children’s Commissioner for South Australia by Christopher Kew and Henry Sit. As the authors point out, all Australian jurisdictions other than South Australia now have a Commissioner for Children. South Australia’s Child Development and Wellbeing Bill 2014, which would introduce a Commissioner, has been postponed in order to take account of the forthcoming report of the South Australian Child Protection Systems Royal Commission. The article explores the ways in which the Bill might be amended to ensure children’s voices are heard and respected. In particular the authors consider the findings of a Conversations Report2015 by The Council for the Care of Children, in conjunction with Save the Children Australia and the Office for Children and Young People, Department for Education and Child Development, and with the support of the Guardian for Children and Young People, which sought to canvass children’s views on what qualities a Commissioner should have and what the work of a Commissioner should be. The authors echo the single recommendation in the Conversations Report 2015 that children be involved in the recruitment, selection and subsequent work of the Commissioner. While this could be done informally, the authors appropriately argue that the requirement should be formally anchored in the Bill.
On the broad theme of listening to the voices of children the article Whither universal suffrage? by Will Bartlett and Kritika Rampal considers the case for lowering the voting age to 16 or 17 years of age. The authors argue in favour of such a change because it would allow young people to participate on matters affecting them and bring the voting age in line with the age at which a child incurs other civic rights and responsibilities. This article highlights the issues with fixing rigid age levels in law given that it is well established that young people develop and mature at different and inconsistent rates. The authors acknowledge that the political maturity of 16 and 17 years olds may vary significantly and sensibly recommend that this be addressed by making voting for this age group optional rather than compulsory.
The difficulties of inflexible laws in relation to age also becomes apparent in setting the age of consent, particularly in relation to sexual acts between consenting children. The article Age of Consent and the Criminal Law by Amber Hu and Chris Andrewshighlights how varied the laws relating to the age of consent for sexual acts are across Australia. The authors explain the South African Teddy Bear case, in which the Constitutional Court found that laws which criminalize consensual sexual activity between children aged 12 to 16 infringe the rights of children to dignity and privacy, are not in the best interests of children and in fact cause harm to children. They argue that Australian jurisdictions with inflexible laws, particularly NSW, have not demonstrably curbed sexual activity between minors, but have had the undesirable effect of discouraging them from talking about those activities, which may lead to unsafe practices. The authors call for a more liberal and flexible approach, as is the case in Tasmania, throughout Australia that protects children who consensually engage in sexual activity from prosecution while allowing the prosecution of exploitative sexual activity by minors.
Out of home care & child abuse by Meena Mariadassou and Georgia Feltis turns attention away from the inappropriate legal responses to consensual sexual behaviour between minors to inadequate responses to exploitative child-to-child sexual behaviour. The authors consider the Out-of-home care Consultation Paper recently released by the Royal Commission into Institutional Reponses to Child Sexual Abuse and explore in particular the growing problem of child-to-child abuse in out-of-home care, what factors contribute to the incidence of such abuse and what can be done to improve responses to such abuse. Some of the factors they identify as obstacles to addressing abuse are the lack of consistent and reliable data and record keeping, inadequate information exchange between departments, agencies and foster care providers as well as limited carer training. Improvements suggested include better data collection, information exchange, career-training as well as the establishment of an independent body to whom children can talk about abuse.
It is now five years since the Doing Time – Time for Doing Report was released and it is therefore timely that Doing Time – Time for Doing, 5 years on by Amelia Achterstraat and Jordan Gifford-Moore takes stock of the relatively slow progress made in reducing the imprisonment of young Indigenous people and explores what can be done to further reduce the rate of overrepresentation. They focus on two successful strategies which specifically target children: Alice Springs Youth Drug Rehabilitation Services and Remote Schools Attendance Strategy. While noting the importance of these strategies the authors note that such top-down strategies are likely to be not as effective as community-led programs developed in close collaboration with local members of Indigenous communities, as recommended in the Doing Time – Time for Doing Report.
In the final article, Children and consumer product safety: Current regime and scope for reform, Hannah Lippmann and Sarah Rodrigues take the rate at which children are injured, even fatally, by consumer products as a reason to examine the current Australian consumer protection regime and what can be done to strengthen protections for children. The article examines the three mechanisms for protecting consumers – safety standards, bans and recalls and makes solid recommendations for improvements. This is a particularly timely article because the Australian Consumer Law is currently under review.
The development of a framework of children’s rights – albeit a work in progress – is an important project of law reform. The articles in this Bulletin contribute to this project, but also clearly indicate the complexities of law reform that seeks to enhance the protection and empowerment of children.
Professor Thomas Crofts, Director of the Sydney Institute of Criminology, School of Law, The University of Sydney
This edition of Rights Agenda has been prepared with the assistance of NCYLC and KWM.
The Human Rights Law Centre would like to thank everyone who contributed to the production of this Bulletin.
Philippa Macaskill and Charles Davies, Solicitors, King & Wood Mallesons and Editors of this Special Children’s Rights Edition of the HRLC Bulletin.
We would like to express thanks to all those solicitors, clerks and graduates at King & Wood Mallesons who helped research, coordinate and prepare articles and case notes for this Special Bulletin. Thank you also to Taryn McCamley of King & Wood Mallesons who provided assistance for this Bulletin.
A special thanks also goes to:
- Matthew Keeley and Ahram Choi of the National Children’s and Youth Law Centre;
- Ben Schokman from the Human Rights Law Centre;
- James McDougall;
- Magdelena Madden from The Council for the Care of Children; and
- Oliver Jacques and UnitingCare Australia,
for providing their invaluable experience in sponsoring and editing these articles.
Special thanks also to Professor Thomas Crofts for his introduction for this Bulletin.
Please note that material in this Bulletin (Material) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons, NCYLC, UnitingCare, the Council for the Care of Children, the University of Sydney or the HLRC or the views of the King & Wood Mallesons’ clients.