Blackman, Lani --- "Monitoring Seen and heard " [2000] ALRCRefJl 15; (2000) 76 Australian Law Reform Commission Reform Journal 84

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Reform Issue 76 Autumn 2000

This article appeared on pages 84 – 89 & 100 of the original journal.

Monitoring Seen & Heard

On 19 November 1997, the report Seen and heard: priority for children in the legal process was tabled in the federal parliament. The report was the final product of a two year inquiry by the Australian Law Reform Commission (ALRC) and the Human Rights and Equal Opportunity Commission (HREOC), which investigated children’s dealings with legal processes. The Commissions found legal processes riddled with inconsistencies; duplication and gaps in services for children; and significant failings in the legal system, departments and agencies responsible for assisting children.

The report contained 286 recommendations for reform, covering issues such as national advocacy for children, coordination of federal, state and territory policies and services, education, consumer rights, family law, care and protection, child witnesses, sentencing and detention.

There has been no formal response from the federal government in relation to this report. There have been a number of changes at federal, state and territory levels since 1997, which Lani Blackman* seeks to document in this article, with reference to the recommendations of the Seen and heard report.

Advocacy of children’s issues

One of the central recommendations made by the Commissions in Seen and heard was the immediate establishment of a federal Office for Children, to be situated within the Department of Prime Minister and Cabinet. This recommendation was made in response to the need for coordination of policy development and service delivery across the whole of government, and was supported by paediatric organisations such as the Child Health Council of South Australia, the Mental Health Legal Centre and the Australia Association of Paediatric Teaching. Like the Commissions, these organisations see the significant difficulties for individual families which stem from uncoordinated legal and medical services. The government has not supported this recommendation.

In August 1998, the Joint Standing Committee on Treaties released its report on the inquiry on the United Nations Convention of the Rights of the Child (CROC). Amongst other recommendations aimed at supporting the implementation of CROC in Australia, the Committee recommended the establishment of an Office for Children as an independent statutory authority attached to the Prime Minister’s portfolio. As of the end of 1999, the government was yet to respond to the Committee’s report.

A number of non-government organisations continue to advocate for the establishment of a federal Office for Children and/or a Children’s Commissioner.¹

Children’s Commissions have been established in some state jurisdictions, in part as a response to concerns about their care and protection functions. The Queensland Children’s Commission, established in 1996, was the subject of review in April 1999 by former HREOC director John Briton. The confidential report highlighted the need for greater powers of investigation and recommended new legislation which would ensure the Commission had the necessary mandate to provide adequate protection and support to Queensland’s children. The Children’s Commissioner and Children’s Services Appeals Tribunals Act 1996 (Qld) is expected to be amended during 2000.

The establishment of a Commission for Children and Young People in NSW, under the Commission for Children and Young People Act 1998 (NSW), was primarily the result of recommendations of the Wood Royal Commission. The role of the NSW Commission is to promote and monitor the well-being of children and young people under 18, promote participation of children and young people in all community processes, conduct special inquiries and make recommendations for change, and to oversee an employment screening system for people working with children. Ms Gillian Calvert was appointed as the NSW Commissioner in May 1999. An inquiry into the ‘needs of children who have no-one to turn to’ was announced in November 1999, and is expected to consider the needs of children who are homeless, those in detention centres or in state care, and those whose parents are not available to them because of imprisonment, illness, disability or an addiction.

The position of Children’s Commissioner was created in Tasmania under the Children, Young Persons and Their Families Act 1997 (Tas). However, no appointment has been made to the position.

Another ALRC/HREOC recommendation called for the convening of a summit of heads of Australian governments to discuss national responses to child abuse and neglect; causes of and remedies for juvenile offending; youth suicide; and youth homelessness. Such a summit has not been held. However, the Coalition for Australia’s Children, which includes a wide range of government and non-government organisation working with and for children and young people, held a two-day National Summit in Canberra in December 1999. This summit, attended by adult and young person delegates from government and non-government organisations, discussed a variety of issues relevant to children and young people.

Jurisdictional issues

The Seen and heard report made a number of recommendations aimed at reducing jurisdictional confusion, particularly in relation to the intersection of family law and care and protection matters. These issues continue to hamper the effective delivery of legal and other services, as noted in a December 1999 report by the Senate Legal and Constitutional Legislation Committee.²

A number of options were canvassed by the Commissions to reorient responsibilities and enhance coordination so that care and protection and family law disputes are resolved more rationally, expeditiously, fairly and with the least disruption to the lives of children involved. These options should be given further consideration in light of the Wakim³ decision affecting cross-vesting schemes. Improved handling of abuse allegations, enhanced recognition of the overlap between the jurisdictions, and better coordination of services, is required as a minimum reform.

A pilot case management of cases involving allegations of child abuse, the ‘Magellan Project’, is being conducted in the Melbourne Registry of the Family Court of Australia. A report⁴ on cases in the Melbourne and Canberra registries found that, while the abuse cases only made up five per cent of the total applications involving children’s matters, a much larger than normal percentage of abuse cases went through to final judgment by the court. The Magellan Project aims to identify cases involving allegations of abuse at an early stage and manage judicial oversight of the processing of such to ensure they are dealt with promptly and appropriately, including beneficial interaction with state based legal aid and welfare services. The results to date have been encouraging. A similar project is planned for the Parramatta registry in Sydney in 2000.

Another positive milestone has been uniform laws implemented across Australia and New Zealand to recognise and enforce child protection orders across state, territory and New Zealand borders. Agreement on the uniform approach was reached in August 1999. Legislation should be in place in each state and territory and New Zealand by March 2000.

Care & protection

Independently of the Seen and heard report, but consistent with many of its recommendations, New South Wales and Queensland have introduced new care and protection legislation, bringing wide ranging changes to these jurisdictions.

The Children and Young Persons (Care and Protection) Act 1998 (NSW) is based on clear principles of children’s participation in decisions affecting them. The Act sets out the rights of children, parents and foster parents, has new definitions of child abuse and neglect, and clearer guidance to the responsible Department of its role in responding to a report of abuse or neglect. The participation of Aboriginal and Torres Strait Islander families and communities is also encouraged where decisions would affect their children.

Family conferencing and other forms of alternative dispute resolution options are encouraged. The use of Apprehended Violence Orders is preferred to the removal of a child from the home in emergency situations. The Act also abolishes the concept of ‘wardship’, emphasising the involvement of parents as much as possible with flexible orders, although the option to place a child under sole guardianship of the Minister is still available.

The NSW Act is expected to commence operation during the first half of 2000 to allow for changes to policy and service delivery and appropriate training.

The Child Protection Act 1999 (Qld) similarly introduces extensive changes to the Queensland care and protection jurisdiction. As an example of the new thinking behind the Act, a charter of rights for children in care is included within the Act, together with provisions that children must have the charter given and explained to them. This Act is expected to come into effect in March 2000. The ALRC and HREOC were supportive of such charters, in particular the South Australian model, which was drafted in cooperation with children in care in 1997.

Child witnesses

The treatment of child witnesses has received extensive media attention since 1997. Particular attention has focused on child witnesses who are the victims of sexual abuse. Case studies outlined in the Seen and heard report have provided the basis of a number of newspaper articles.

The Seen and heard report contained numerous recommendations including calls for improvements in training of police interviewers and prosecutors, improved court facilities and court procedures, and changes to advocacy and legal professional conduct rules to specifically proscribe intimidating and harassing questioning of child witnesses.

Despite media attention, only a little progress has been made in this area. Legal professional associations have condemned inappropriate questioning, yet defended their practice rules as adequately covering the situation. A number of courts have improved waiting facilities for child witnesses, and considered issues raised in the Seen and heard report when revising court rules and practice directions. However, the innovative and successful Child Victim Witness Service in Western Australia has been severely restricted due to funding cuts.

Improvements have been made through increased use of video technology to assist children giving evidence in court. In August 1999 the Beattie government in Queensland announced funding to increase the use of video-conferencing to remove the child witness from the courtroom, combined with special training for magistrates to make them more sensitive to the needs of child witnesses. In NSW, the Evidence (Children) Act 1997 (NSW), which commenced on 1 August 1999, provides that videotaped police interviews of children are admissible in court.

This issue of children’s evidence is being further considered by the Queensland Law Reform Commission. A discussion paper was released in December 1998, and work continues towards a final report.

Legal representation of children

In the Seen and heard report, the Commissions identified problems associated with child representatives. In particular, many lawyers representing children were unclear concerning their role, their relationship with the child client and their responsibilities. The model of best interests advocacy was part of the problem. Lawyers were unclear whether they should take, or act on children’s instructions in a variety of situations. The Commissions found poor communication between lawyers and child clients to be a significant problem. It was recommended that clear standards for the legal representation of children should be developed, including family law and care and protection proceedings.

Practitioners in a number of jurisdictions have supported this recommendation. A Law Foundation of Victoria funded project for the Children’s Court of Victoria has developed excellent guidelines for lawyers acting for children and young people in court.⁵ The Children’s Issues Committee of the Law Society of NSW has released a draft of principles for lawyers representing children in all jurisdictions, developed in a rule-commentary style. The draft has been supported by practitioners and child lawyer committees in other states. It is hoped that the principles will be valuable in providing a framework for national practice guidelines.

A free-call phone number was established in NSW in December 1998 to provide legal advice to regional and city children. The legal advice number was introduced to accompany the establishment of the youth justice conferencing program (see below), which is premised on participation of offenders aware of their legal rights and responsibilities.

Sentencing

Mandatory sentencing laws applying to juvenile offenders are still in place in Western Australia and the Northern Territory. The Northern Territory in fact has increased the range of offences to which mandatory sentences apply. While a discretion to apply a mandatory sentence was introduced in relation to offenders aged 17 and over, no such discretion was applied to young persons.

The Greens, supported by the Democrats and the Labor Party, introduced the Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999 to the federal parliament in August 1999. The Bill, premised on Australia’s international obligations to children under CROC, seeks to override any mandatory sentencing law as it applies to persons under the age of 18. The Senate Legal and Constitutional References Committee is conducting an inquiry into the Bill and surrounding issues. A report of this inquiry was due in March 2000. The government has indicated that it will respond to this report.

Detention

A recent report from the Australian Institute of Criminology⁶ indicates that the number of juveniles in corrective institutions has declined by an average of 3.2 per cent per year from 1981 to 1998. However, the percentage of juveniles on remand had doubled from 21.4 per cent in 1981 to 42.6 per cent in 1998. The rate of over-representation of Indigenous juveniles has declined since 1993. NSW accounts for almost half of the total number of persons held in Australian juvenile corrective institutions during any given year.

One issue that continues to receive media publicity is the incarceration of juveniles in adult prisons, particularly in regional areas. Seen and heard recommended that the federal government withdraw its reservation to the obligation under CROC to ensure separation of juveniles and adults in prisons, and to ensure that minimum standards exist for the remand of children in rural and remote areas. The reservation has not been withdrawn.

Police attitudes to children

The Seen and heard report made recommendations relating to the training of police officers and communications with young people. The Australian Federal Police has advised that its revision of the Diploma of Policing has addressed the need for this kind of training.

In NSW, between August 1998 and August 1999, 80 police officers received training as specialised youth liaison officers, one for each local command area. This training and the use of youth liaison officers is seen to have improved communications between young people and police in some areas.

Youth justice conferencing

Youth justice conferencing is now well established. The success of a conferencing program ultimately depends upon the availability of trained convenors. The low level of conferencing in NSW Aboriginal communities is indicative of this problem. Similarly, a youth conferencing program established in the Northern Territory, with aims to divert children from the effects of mandatory sentencing laws, is hindered in its effectiveness by lack of resources.

Education

The Seen and heard report addressed the rights of children within the education system. The concern with which the National Children’s and Youth Law Centre’s Know your rights at school kit was greeted in 1994 was noted in the Seen and heard report. A second edition of this kit was released in NSW and South Australia during 1999. Once again, the media criticised the idea of the kit, yet the National Children’s and Youth Law Centre indicated a generally positive response from schools and parents. The kit addresses both rights and responsibilities.

Another initiative by the National Children’s and Youth Law Centre was the 1999 release of a practical manual covering procedural fairness in Australian schools, aptly titled Being Fair. The establishment of clear guidelines for disciplinary measures has been applauded by school associations, schools, and a number of state education departments.

HREOC is currently undertaking an inquiry into rural and remote school education. The inquiry will examine availability and accessibility of education, the quality of educational services and whether education is available to all children regardless of race, culture, religion or disability. The inquiry is expected to report during 2000.

Interaction with federal government agencies

A number of federal government agencies have reported changes to administrative procedures consistent with the recommendations of the Seen and heard report.

The Department of Immigration and Multicultural Affairs has undertaken a review of citizenship publications aimed at children, and implemented a number of procedural changes to improve processing of child visa applications. Centrelink has introduced a number of training and publication initiatives aimed at improving communication with young people. A free-call number was established in June 1998 as part of the introduction of the Youth Allowance, as well as a dedicated Youth Allowance web-site.

In relation to children as consumers, the Department of Industry, Science and Tourism has developed educational material for children in the form of a CD-Rom distributed free to all Australian primary schools. The Department is also considering establishing a ‘kids page’ on its web-site, a development which has been adopted by a number of government web-pages. The Department intends to consider the needs of children when reviewing a number of consumer affairs publications and procedures.

Conclusion

The past two years has seen some significant changes in the area of children and the law. The Seen and heard report has been well received by a large number of organisations and individuals working with or providing services to children and has provided the impetus for change or further consideration of a number of issues. However, significant numbers of Seen and heard recommendations have been ignored or rejected. It is hoped that the extensive research, consultation and consideration that went into Seen and heard will find greater support over the coming years and continue to be used to improve the participation of children in the legal process.

* Lani Blackman is the Legal Policy Officer at the Australian Law Reform Commission.

Illustrations by Ross Carnsew.

Endnotes

1. For example see Defence for Children International Towards Taking Australia’s Children Seriously November 1998.

2. Senate Legal and Constitutional Legislation Committee Provisions of the Family Law Amendment Bill 1999 Parliament of Australia Canberra December 1999.

3. Re Wakim; Ex parte McNally [1999] VSC 227; (1999) 73 ALJR 839.

4. T Brown et al, Violence in families – Report number one: The management of child abuse allegations in custody and access disputes before the Family Court of Australia Monash University Melbourne 1998.

5. L Akenson Guidelines for lawyers acting for children and young people in the Children’s Court Law Foundation of Victoria Melbourne 1999.

6. C Carach and G Muscat Juveniles in Australian Corrective Institutions 1981-1998 Australian Institute of Criminology Sydney 1999.