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The Convention on the Rights of the Child: How fares Victorian law and practice?

Published online by Cambridge University Press:  29 February 2016

Terry Carney
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Extract

On the 2nd of September this year, the United Nations Convention on the Rights of the Child, adopted by the Assembly in November 1989, came into force under international law, 30 days after the lodgment of the 20th instrument of ratification (by which time 31 countries had deposited ratifications). Shortly prior to that date, on 22 August, after some public controversy about the matter, Australia had determined to sign the Convention. The Convention, which stemmed from the 1979 International Year of the Child, expanded and elaborated within an international treaty, rights first enunciated (in non-binding form) in the 1959 Declaration of the Rights of the Child. It applies to a person under the age of 18.

Over 5 years ago, the Report of the Child Welfare Practice and Legislation Review Committee was published. That report - Equity and Social Justice for children families and communities, took, as one of its foundation principles, the proposition that Victorian law and practice should reflect internationally accepted principles of human and civil rights of children.

Type
Research Article
Information
Children Australia , Volume 16 , Issue 1 , 1991 , pp. 22 - 29
Copyright
Copyright © Cambridge University Press 1991

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References

1 Article 49(1) of the Convention on the Rights of the Child; Sunday Age, 2 Sept. 1990, 11. Another 105 countries had signed but not yet ratified at that date. For a commentary and the text of the Convention, see Cohen, C., ‘Introductory Note’ (1989) 28, International Legal Materials, 1448–1476.

2 In June 1990 for example, the nationally televised ABC ‘Couchman’ programme had debated the pros and cons of ratification.

3 The Age, Thursday, 23 August, 1990; Australia deposited its ratification at the end of 1990.

4 A document which has some limited status as a benchmark reference point for the work of the Commonwealth ‘Human Rights and Equal Opportunity Commission’: Carney, T., ‘Children’. In Pagone, T., Wallace, J., Rights and Freedoms in Australia, Sydney: Federation Press, 1990, 63–74.

5 Article 1.

6 Equity and Social Justice, Report of the Child Welfare Practice and Legislation Review Committee. Melbourne: Vic. Gov. Pr., 1985. [subsequently: Equity and Social Justice].

7 Carney, T., ‘Rights and Empowerment of Children’ (1989) 14, Community Quarterly, 11–19.

8 Carney, T., ‘A Charter of Rights: implications for youth and families in crisis’ (1985) 57, Civil Liberty (Victoria), 9–12.

9 The recent Victorian Budget has deferred the much needed $15 redevelopment of Turana and has made cuts to some important family support and alternative placements for children. However $900,000, has been allocated for the redevelopment of one large institution (Baltara) and that catering for young women has shed all but 27 of its inmates: information supplied by the Minister’s Office, October 1990. Generally, then, the service proposals recommended by the Review have fared well: CSV, Statewide Services Redevelopment Plan. Melbourne: CSV, May 1988, 2 Volumes.

10 For a general overview: Gorman, J., Brown, R., ‘The Children and Young Persons Act 1989: Not far enough’ (1990) Law Institute Journal, 284.

11 Carney, T., ‘The Values and Approaches of the Victorian Child Welfare Review’. In: A. Jayasurija and J. Calleja (Eds.) Substitute Care for Children: Emerging Issues. Perth: Department of Social Work and Social Administration, University of Western Australia, 1984, 54–76.

12 Equity and Social Justice, 27; Carney, T., ‘A Charter of Rights: Implications for youth and families in crisis’ (n. 8).

13 Marshall, T., Sociology at the Crossroads and Other Essays. London: Heinemann, 1963, 74; Eekelaar, J., ‘The Emergence of Children’s Rights’ (1986) 6, Oxford Journal of Legal Studies, 161 at 170.

14 Equity and Social Justice, 11.

15 Bourne, R., Newberger, E., ‘“Family Autonomy” or “Coercive Intervention”? Ambiguity and Conflict in the Proposed Standards for Child Abuse and Neglect’ (1977) 57, Boston University Law Review, 670 at 702.

16 Wald, M., ‘State Intervention on Behalf of Endangered Children - A Proposed Legal Response’ (1982) 6, Child Abuse and Neglect, 3 at 7–8.

17 Equity and Social Justice, 78–80.

18 Id., 121–124.

19 Carney, T., ‘Equity and Support for Children Families and Communities’ (1985) 10, Legal Service Bulletin, 126–131.

20 Article 18(1).

21 Article 18(2).

22 Eg: Article 3(1).

23 Children and Young Persons Act 1989 (Vic) s. 87(a)-(c).

24 Ss 87(j) and (f) respectively.

25 S. 119(1)(b)(c).

26 Ss. 87(e)(g)(h) [court], 124(2)(a) [D-G in placing children].

27 Article 9(2).

28 Children and Young Persons Act 1989 (Vic) s. 18.

29 S. 119.

30 Further: Carney, T., ‘Voluntary Care Arrangements: Responsive Welfare Entitlements? Or Coercive Intervention Revisited?’ (1989) 3, Australian Journal of Family Law, 114–146.

31 Children and Young Persons Act 1989 (Vic) s. 21(1). Assistance is equally to be extended to facilitate participation in case planning conferences: s. 119(l)(f).

32 Article 12(1).

33 S. 18(1)(c) [the court must ‘allow (i) the child and (ii) in the case of proceedings in the Family division, the child’s parents and all other parties who have a direct interest in the proceedings - to participate fully in the proceeding’]

34 S. 119(1)(e)-(h).

35 Article 9(1).

36 Article 19(1).

37 Further: Carney, T., ‘A Fresh Approach to Child Protection Practice and Legislation in Australia’ (1989) 13, International Journal of Child Abuse and Neglect, 29, 31–32.

38 Article 19(2).

39 Loc cit.

40 S. 63.

41 Carney (n. 37), 35–36.

42 Article 9(3).

43 Article 9(4). The new Act applies a similar policy to disclosure of information about the whereabouts of the child when dealing with a bail application: s. 76.

44 S. 49(c) [disposition report must canvass measures taken to avoid separating child from parents]. Also n. 24 above.

45 S. 96(1)(e) [third party custody], 99 [custody to Director-General].

46 Article 25.

47 Children and Young Persons Act 1989 (Vic) s. 91(3).

48 Ss. 100(3) [court ordered extension of custody to Director-General orders], 106(2) [departmental reviews forwarded to court and all parties as basis for extending guardianship to Director-General orders beyond 12 months].

49 Article 40(2)(b)(i).

50 Children and Young Persons Act 1989 (Vic) s. 135 [unless satisfied the charge must be dismissed: sub-s.(2)]

51 Article 40(2)(b)(ii).

52 S. 129 [a reasonable time, not more than 24 hrs from being taken into custody], 128 [preference for summons].

53 Article 40(2)(b)(iii).

54 Committee Draft Children (Family, Community Development and Justice) Bill 1984 cl. 157, 158 [Requiring the consent of the court to initiate proceedings more than 3 months following the apprehension of the child or the point at which the prosecution might reasonable have proceeded].

55 Children and Young Persons Act 1989 (Vic) s. 20(1).

56 Ss. 20(2) [duty], 21(2) [categories: ‘bail, imprisonable offences for an adult, and penalty review or breach proceedings’]

57 Article 40(2)(b)(iv).

58 Article 40(2)(b)(v).

59 Ss. 197 [criminal], 116 [protection].

60 Article 40(2)(b)(vi).

61 S. 22 [mandatory bar on ‘hearing and determining’ case where the ‘child, a parent … or any other party’ has ‘difficulty in communicating … that is sufficient to prevent … understanding or participat[ion] in the proceeding’].

62 Reference at n. 1., infra, 1471.

63 Equity and Social Justice, 409.

64 Children’s Court (Amendment) Act 1986 [amending s. 18 Children’s Court Act 1973].

65 Now: Children and Young Persons Act 1989 (Vic) s. 19.

66 S. 19(2)(3).

67 S. 26.

68 Equity and Social Justice, Part IV Chs 1–3.

69 Id., 387–392.

70 Paradoxically the other rationale was to overcome net widening, a problem which has bedevilled all Australian cautioning and diversion schemes, with one (perhaps short-lived) exception: the initial experience with a modest expansion (from an extremely low base) of the NSW scheme during 1985/6: Freiberg, A., Fox, R. and Hogan, M, 1988: Sentencing Young Offenders. Sydney: Australian Law Reform Commission 1988 [Sentencing Research Paper No. 11], 43.

71 The weaknesses of the proposal are exposed by the data on the South Australian model, on which it was largely based. The South Australian experience suggests that the Screening Panel significantly boosted overall rates of formal intervention (the “net widening’ or ‘recruitment’ effect) rather than serving to divert into less formal processing, cases which would otherwise be taken to court: Freiberg et al, 1988, 47.

72 Equity and Social Justice, 386–7.

73 Loc cit.

74 Freiberg et al, 1988, 47.

75 Wundersitz, J., Naffine, N., Gale, F., ‘Chivalry, Justice or Paternalism? The Female Offender in the Juvenile Justice system’ (1988) 24, Australian and New Zealand Journal of Sociology, 359; Gale, F., Wundersitz, J., “The Operation of Hidden Prejudice in Pre-court Procedures: The Case of Aboriginal Youth’ (1989) 22, Australian and New Zealand Journal of Criminology, 1.

76 Carney, T., Young Offenders and State Intervention: Issues of Control and Support for Parents and Young People’ (1989) 22, Australian and New Zealand Journal of Criminology, 22, 30.

77 For example: Children and Young Persons Act 1989 (Vic) ss. 18–26, 134–139.

78 The Crimes (Custody and Investigation) Act 1988 gives statutory force to requirements previously contained in Police Standing Orders. Apart from general rights extended to all persons in ‘custody’ (a concept involving practical restrictions on movement, or de facto custody), such as communication with friends and legal advisers, interpreters, and ‘reasonable’ limits to the duration or style of interrogation, the Act also confers a specific right for young people (under 17) to have a parent or independent person present throughout the interview, and to speak in private before the interview commences, subject only to dispensations for urgency or interference with the course of justice: s. 5 inserting a new s. 464E Crimes Act 1958. The Act came into force on 15 March 1989: [1989] ALMD 2189.

79 Committee Draft Children (Family, Community Development and Justice) Bill 1984, cl. 133 [independent ‘youth advocate’ at interview], 134 [2hr duration].

80 Crimes (Fingerprinting) Act 1988 s. 4, inserting a new s. 464N Crimes Act 1958. The Act, with the exception of provisions for fingerprinting of persons in detention, came into force on 1 Jan 1990:[1990] ALMD 158.

81 Committee Draft Children (Family, Community Development and Justice) Bill 1984, cl. 135.

82 Cl. 137; Equity and Social Justice, 374.

83 Gorman, et al (n. 10), 287.

84 S. 274(1)(2).

85 S. 274(3).

86 Children’s Court (Amendment) Act 1986 [Inserting new ss. 4A-4C Children’s Court Act 1973; Commencement: 1 July 1986 (48, Government Gazette, 18 June 1986, 2066].

87 Children and Young Persons Act 1989 (Vic) ss. 8 (3), 15, 16, 82, 87, 135–139.

88 S. 11(1). The authority covers both full-time members and those Magistrates (in the country) assigned to perform Children’s Court duties in addition to concurrent responsibilities in the adult Magistrates Court.

89 S. 112(3).

90 S. 12(2).

91 S. 11(2).

92 S. 11(3).

93 Gorman, et al (n. 10), 287.

94 Victoria, Report from the Statute Law Revision Committee upon the Law Relating to Children’s Courts. Melbourne: Vic. Gov. Pr., 1973, para. 6. The ALRC recommended that appointees be fitted to the position ‘by reason of training, experience and personality’: Child Welfare. Canberra: A.G.P.S., 1982, 114. (The report of the Australian Law Reform Commission’s reference on child welfare).

95 Freiberg, A., Fox., Hogan, M., ‘Procedural Justice in Sentencing Australian Juveniles’ (1989) 15, Monash University Law Review, 279, 299–300.

96 Muncie, J., Coventry, G., ‘Punishment in the Community and the Victorian Youth Attendance Order: A Look into the Future’ (1989) 22, Australian and New Zealand Journal of Criminology, 179.

97 Cohen (n. 1), 1449.

98 Bennett, W. H., ‘A critique of the Emerging Convention on the Rights of the Child’ (1987) 20, Cornell International Law Journal, 1 at 36.

99 Article 32. Similar rights are recognised in the education area: Article 28. (Another area in which Victoria might be accused of dragging its feet in not fully implementing the recommendations of the Review).

100 Equity and Social Justice, 173–179.

101 Children’ Services Act 1986 (ACT), Part VIII ss. 126–136.

102 Article 26 (1) and (2) respectively.

103 Article 27(1).

104 Cass, B, The Case for Review of Aspects of the Australian Social Security System. Canberra: DSS, 1986, 9 [one of eight goals identified at the outset of the work of the Social Security Review].

105 Note 13 above.

106 Provided under s. 118(8) Social Security Act 1947 (Cth).

107 Article 27(3).

108 For a summary and preliminary evaluation of ‘stage one’ of the scheme: Harrison, M., Snider, G., Merlo, R., Who Pays for the Children?: A First Look at the Operation of Australia’s New Child Support Scheme. Melbourne: Institute of Family Studies, 1990.

109 Article 27(4).

110 Rose, N., ‘Beyond the Public/Private Division: Law, Power and the Family’, (1987) 14, Journal of Law and Society, 61–76.

111 Simon, W., ‘The Invention and Reinvention of Welfare Rights’, (1985) 44, Maryland Law Review, 1–37.

112 Nearly one in five women live in dc facto relationships at some time, one third of marriages end in divorce (after 10 years on average), and one in five households live ‘alone’: national survey data summarised in Australia Unveiled’, The Age, Monday 3 April, 1989, 11.

113 Marshall, T., Sociology at the Crossroads and Other Essays. London: Heinemann, 1973, 67–127.