Legal and Non-Legal Responses (HSC SSCE Legal Studies): Revision Notes

Legal and Non-Legal Responses

This section explores how the law protects children and young people in Australia, examining both legal mechanisms (such as legislation and institutions) and non-legal support services. The responses aim to ensure that children's rights are upheld and their welfare protected across civil and criminal law contexts.

Legal responses

Legal responses to protecting children and young people come from both Commonwealth (federal) and state legislation, as well as from institutions created by parliament and decisions made by courts. These responses cover civil matters (such as education and medical treatment) and criminal matters (such as how young offenders are treated).

Civil law in relation to children and young people

Civil law governs the everyday legal rights and responsibilities of children and young people. In Australia, this includes both federal and state laws.

The Family Law Act 1975 (Cth)

The Family Law Act 1975 (Cth) governs disputes between married and de facto couples, including matters relating to children. Under this Act, the paramount consideration (the most important factor) in making any order about children must be the child's best interests. This means courts must prioritize what is best for the child above all other factors when making decisions about their care, living arrangements, or contact with parents.

Many other aspects of children's law fall under state jurisdiction. In New South Wales, these include registration, citizenship, education, work, medical treatment, discrimination, contracts, torts, and leaving home.

Registration

Under the Births, Deaths and Marriages Registration Act 1995 (NSW), parents have specific legal obligations when a child is born:

• $7$ days to give notice of the birth
• $60$ days to complete the registration process

Registration is crucial because it:

• Places the child's existence on the public record
• Gives the child a legal name (usually that of the father or mother)
• Ensures the child receives all legal rights and protections
• Creates legal responsibilities for parents to care for the child's welfare

Foundling: A deserted infant whose parents' identity is unknown. The person granted guardianship of a foundling is responsible for registering the child's birth.

Adoption order: A court order that establishes a new legal relationship between adoptive parents and a child eligible for adoption. It also severs the legal relationship between the child and their natural or previous legal parents/guardians.

Citizenship

The Australian Citizenship Act 2007 (Cth) sets out how a person becomes an Australian citizen. For children, citizenship is acquired in several ways:

Automatic citizenship is granted if:

• A child is born in Australia with at least one parent who is an Australian citizen
• A child who is a permanent resident has been legally adopted

Citizenship by descent may be applied for if:

• A child is born overseas with at least one parent who is an Australian citizen (certain criteria must be met)

This legislation ensures children can access their rights as Australian citizens, including access to education, healthcare, and legal protection.

Education

Children have the right to be educated, and under the Education Act 1990 (NSW), it is compulsory for children aged $6$–$17$ to attend school.

Section 22 of the Act requires parents to:

• Send their children to a government school, OR
• Send them to a non-government school registered with the NSW Board of Studies Teaching and Educational Standards, OR
• Register them for home schooling

Work

While it is generally acknowledged that children should remain in school and receive formal education, young people can work under certain conditions.

Key points about children and work:

• There is no minimum legal age limit for young workers in NSW
• If under $15$ years, they must receive authorization from the NSW Department of Education and Training to leave school
• Young people in the workplace are covered by all relevant workplace and safety legislation

Positive aspects:

• Most children could list both positive and negative aspects of working
• They valued getting paid and gaining experience and responsibility

Concerns identified:

• Children in less disadvantaged areas were more likely to work; work decreased with increased social disadvantage
• Children with greater household responsibilities had fewer opportunities to work
• Young workers were often paid less than mature people doing the same jobs (possibly because they work informally or casually, outside regulatory requirements)
• High levels of harassment and injury were reported

These findings suggest that while work can provide valuable experience, young workers may be vulnerable to exploitation and need better protection.

Medical treatment

The law recognizes that mature children can make their own medical decisions under certain circumstances, following the principle established in the Gillick case.

This common law principle is supported by section 49 of the Minors (Property and Contracts) Act 1970 (NSW), which:

• Protects medical practitioners from liability in tort when treating a young person
• Applies when the young person has given consent to medical or dental treatment
• Requires the young person to be aged $14$ years or over

Parental responsibilities:

• Parents have the responsibility to seek proper medical care for their children, even if they have religious objections
• Under the Children and Young Persons (Care and Protection) Act 1998 (NSW) s 174, a medical or dental practitioner can carry out emergency treatment on a child or young person without parental consent

This creates a balance between respecting children's autonomy as they mature and ensuring their protection when they may make harmful decisions.

Discrimination

Children and young people are protected from discrimination under Part 4G of the Anti-Discrimination Act 1977 (NSW). This Act outlaws discrimination based on:

• Age
• Sex
• Race
• Sexuality
• Other characteristics

The Act applies to discrimination in:

• Work
• Education
• Provision of goods and services

Exceptions exist relating to:

• Superannuation
• Insurance
• Credit applications
• Vehicle safety
• Sport

Contracts

Minors (Property and Contracts) Act 1970 (NSW) provides special protections for young people entering contracts.

General rule (sections 8, 17):

• People under $18$ years are generally not bound by a contract, lease, or other transaction
• Courts will not enforce such contracts, even if they exist

Exception (section 19):

• A young person is bound by an agreement if it is:
  • For their own benefit, AND
  • A necessity (such as accommodation or food)

Guarantor: A person who gives a formal promise that someone else's contract will be fulfilled, often backed by some form of asset (collateral) to secure the promise. Some minors may enter contractual arrangements if they have a parent or guardian acting as a guarantor.

This framework protects young people from being legally bound to agreements they may not fully understand, while allowing them to enter necessary contracts for their welfare.

Torts

Tort: A civil wrong involving breach of a duty. Torts include negligence, defamation, nuisance, and trespass to the person, goods, or land.

Children's rights to sue:

• There is no age restriction on taking legal action for a civil wrong
• If a child is injured due to someone else's negligence, is a victim of defamation, or suffers loss or damage from wrongful behavior, they are entitled to sue the wrongdoer

Children's liability:

• A child is personally responsible for their own wrongful acts
• The general rule is that parents are not liable for torts committed by their children (unless the parents themselves were negligent in supervision)

This ensures children can seek compensation when harmed, while also holding them accountable for their own wrongful actions.

Leaving home

Young people do not have the right to leave their parents' home before the age of $18$. However, the law recognizes practical realities:

• The law would not normally force young people over the age of $16$ to stay at home against their wishes
• Factors considered include:
  • Maturity
  • Accommodation
  • Safe living environment
  • Parents' attitude

This approach balances parental authority with the recognition that older teenagers may have valid reasons for living independently and should not be forcibly returned to potentially harmful home environments.

Criminal law in relation to children and young people

Criminal law treats children and young people differently from adults, recognizing their developmental stage and capacity to understand right from wrong. The key principle is doli incapax (incapable of crime).

Doli incapax

Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW) clearly states the principle of doli incapax: "It shall be conclusively presumed that no child who is under the age of $10$ years can be guilty of an offence." This principle applies in all Australian jurisdictions.

Sanction: A penalty imposed on those who break the law, usually in the form of a fine or punishment.

Juvenile: A child or young person, generally under $18$ years of age, although this may vary depending on the context.

This age-based approach recognizes that children develop the capacity for moral reasoning gradually and should not be held to the same standard as adults.

The Young Offenders Act 1997 (NSW)

The Young Offenders Act 1997 (NSW) aims to provide diversionary measures for young offenders as alternatives to court appearances, recognizing that formal criminal proceedings may not be in the best interests of young people or the community for less serious offences.

Scope of the Act:

• Applies to summary offences
• Applies to indictable offences that can be dealt with summarily

Summary offence: A criminal offence that can be dealt with by a single judge without a jury and does not require a preliminary hearing.

Indictable offence: A serious criminal offence that requires an indictment (a formal, written charge) and a preliminary hearing; it is typically tried before a judge and jury and is subject to a greater penalty.

Three-tiered diversionary system:

The Act establishes a graduated response system comprising warnings, cautions, and Youth Justice Conferences.

Warnings

Warning: Formal notice given to a young offender, usually for a first minor offence.

Key features:

• Can be given by a police officer
• Can be given at the place where the child was found offending or anywhere else
• The child must be told the nature, purpose, and effect of the warning
• No conditions can be attached to the warning
• No additional sanctions can be imposed
• The police officer must ensure the child understands the warning
• The officer must notify the parents

Warnings are the least restrictive response and are suitable for minor, first-time offences.

Cautions

Caution: A formal notice given to a young offender where the offence is more serious than one appropriately dealt with by a warning.

Key features:

• Given by a police officer or specialist youth officer
• Used when the child admits the offence
• Appropriate for more serious offences than those dealt with by warnings

Determining appropriateness: The officer must consider:

• The seriousness of the offence
• The degree of violence involved
• The harm caused to the victim
• The number and nature of any previous offences the child has committed

Youth Justice Conferences

Youth Justice Conference: A measure to divert young offenders from the court system through a conference that addresses the offender's behavior in a more holistic manner.

When used:

• For offences of the same gravity as those for which a caution is imposed
• For more serious offences, including those involving harm to a victim

Purposes:

• Encourage the offender to take responsibility for their actions
• Provide support services to the offender
• Promote the rights of victims
• Involve families and others in the justice process

This three-tiered system allows for a flexible, proportionate response to youth offending that prioritizes rehabilitation and reintegration over punishment, while still holding young people accountable for their actions.

The role of parliament and the courts

Federal and state parliaments have passed numerous Acts that protect children and young people by:

• Restricting their activities (to protect them from harm)
• Placing responsibilities on adults to ensure the welfare of children and young people
• Enshrining certain rights of children in legislation

Courts have also played a role through:

• Cases that have affirmed the current law
• Cases that have changed the law through reinterpretation

Several legal institutions in New South Wales have been established to protect children and young people.

The NSW Advocate for Children and Young People

The NSW Advocate for Children and Young People is a statutory body established in 2015 under the Advocate for Children and Young People Act 2014 (NSW). It took over some functions of the previous NSW Commission for Children and Young People.

Key roles:

• Promoting respect for and understanding of the interests and needs of children and young people
• Making recommendations to government and non-government organizations regarding:
  • Legislation
  • Policies
  • Services
  • Other matters affecting children and young people

Other functions:

• Undertaking research into matters affecting children and young people
• Preparing a three-year strategic plan for children and young people in NSW

The Advocate acts as an independent voice for children and young people, ensuring their perspectives are considered in policy development and legislative reform.

The NSW Office of the Children's Guardian

The NSW Office of the Children's Guardian was first established under the Children and Young Persons (Care and Protection) Act 1988 (NSW), and became an independent government agency in 2013.

Working with children check:

The Office's primary responsibility is implementing and monitoring the working with children check – the mandatory employment screening of job applicants in child-related employment, as outlined in the Children and Young Persons (Care and Protection) Act 1998 (NSW).

Working with children check: A check by the NSW Office of the Children's Guardian on the appropriateness of a person in NSW to work in child-related employment.

Prohibited person: A person prohibited from working in child-related employment because of a conviction for:

• A serious sex offence
• Murder of a child
• An offence involving violence towards a child

Other responsibilities:

• Managing matters connected with out-of-home care in NSW
• Managing accreditation of non-government adoption services
• Authorizing employment of young children in the entertainment industry

Children's courts

The Children's Court Act 1987 (NSW) establishes and governs children's courts in New South Wales.

Structure:

• Seven specialist Children's Courts (five in metropolitan areas)
• Thirteen children's magistrates
• Five children's registrars who aid in administering matters

Dual role:

1. Criminal matters:

• Determining matters involving juvenile offenders

2. Care and protection matters:

• Determining care and protection concerns on application by Department of Family and Community Services (Community Services NSW)

The specialist nature of these courts ensures that matters involving children are dealt with by magistrates with expertise in child development, welfare, and law.

Community Services NSW

Community Services NSW (part of the Department of Family and Community Services) is responsible for the care and protection of children in New South Wales.

How it operates:

• Works in cooperation with:
  • Non-government organizations
  • Government agencies

Activities include:

• Providing accommodation and support for children and young people who need to live away from their families
• Regulating child care through licensing
• Funding and regulating adoption services

Community Services NSW plays a critical role in the child protection system, intervening when children are at risk of harm and providing alternative care arrangements when necessary.

Legal Aid NSW

Legal Aid NSW provides a range of legal services to children and young people in New South Wales.

Services include:

• Representing children and young people in:
  • Welfare proceedings in the Children's Court
  • Family law matters in the Family Court
  • Criminal charges in the Children's Court

Legal Aid ensures that children and young people have access to legal representation even if they or their families cannot afford private lawyers, helping to ensure procedural fairness and protection of their rights.

The NSW Ombudsman

The NSW Ombudsman is an independent review body that deals with individuals' complaints about:

• The administration of government agencies
• Agencies' compliance with specific legislation

Traditional role:

• Representing the people's interests
• Credibility based on:
  • Impartiality
  • Independence from government
  • Confidentiality

There have been calls for a specialist 'children's ombudsman' to take a more targeted approach to issues facing children and young people in their dealings with government agencies.

Reviewable deaths:

An important role is investigating and reporting on 'reviewable deaths' of children in New South Wales.

What is a reviewable death? A death is reviewable if at any time in the three years before the death, the child or a sibling has been reported to Department of Community Services (DOCS) for any matter.

Objective: Preventing harm, abuse, and neglect of children by assessing whether the child protection system could have prevented some deaths.

This monitoring function helps identify systemic issues in the child protection system and prompts reforms to prevent future deaths.

NSW Civil and Administrative Tribunal

The NSW Civil and Administrative Tribunal (NCAT) reviews administrative decisions of NSW Government bodies.

Functions relating to children:

The Administrative and Equal Opportunity Division deals with:

• Applications for review of decisions made by Department of Community Services (DOCS)
• Applications for declarations that a person seeking to apply for a job working with children is not a prohibited person under the Commission for Children and Young People Act 1998 (NSW)

This provides an avenue for individuals to challenge decisions that affect their ability to work with children or decisions about care and protection of specific children.

COAG National Framework

In 2009, the Council of Australian Governments (COAG) – an intergovernmental forum made up of federal and all state and territory governments – published the National Framework for Protecting Australia's Children 2009–2020.

Aim: Fighting child abuse and neglect by preventing it in the first place – that is, by protecting the safety and wellbeing of children.

Non-legal responses

Children and young people often cannot vote (those under $18$), making it difficult at times for their voices to be heard in political processes. Non-legal mechanisms play an important role in keeping the issues of children and young people on the political agenda.

Non-legal responses:

• May be the first point of call for children seeking help
• Can provide valuable information about a person's rights
• Can refer the person to a relevant source (such as legal services)

Trade unions

Trade unions are organizations of workers who act together to maintain their rights to good working conditions.

The Australian Council of Trade Unions provides information for young people entering the workforce for the first time about:

• Pay and conditions
• Health and safety issues
• Apprenticeships and training
• Negotiating employment contracts

Trade unions help ensure that young workers understand their rights and are not exploited in the workplace.

Kids Helpline

Kids Helpline is one of many organizations from which children and young people in crisis can seek advice.

Services offered:

• $24$-hour free telephone and online counseling
• Referral to other services

Issues covered:

• Family relationships
• Child abuse
• Mental health
• Bullying
• Drugs and alcohol
• Eating and weight issues
• Specific issues faced by people from Indigenous, non-English-speaking, or rural backgrounds

Australian Childhood Foundation

The Australian Childhood Foundation works to educate the community about child abuse.

Services:

• List of services offering help and support for people who have experienced child abuse
• Resources for parents and others who are:
  • Concerned about their own situation
  • Want to report child abuse

This organization plays an important role in raising awareness about child abuse and connecting people to appropriate support services.

Remember!