Children and the law in Australia [2nd edition.] 9780409342031, 0409342033

Table of contents :
Full Title
Copyright
Foreword
Contributors
Preface
Acknowledgments
Table of Cases
Table of Statutes
Table of Contents
Part I: Children in Context
Chapter 1: Children and the Law: An Historical Overview
Introduction
‘Childhood’ and history
The state, law and childhood
Inventing childhood: schooling
The invention of ‘adolescence’
Stolen generations
Conclusion
Chapter 2: The Development of Children’s Rights
Introduction
Should children have rights?
What rights do children have?
What does it mean to adopt a rights-based approach to matters involving children?
Conclusion
Chapter 3: The ‘Child’ In Utero and Ex Utero
Introduction
The impact of biomedical innovation
The law of torts
Succession and equity and trusts
Child protection laws
Criminal law
Patent law
Cloning
Conclusion
Chapter 4: Developmental Science, Child Development and the Law
Introduction
A developmental science perspective
Questions and directions
Applying this developmental perspective
Conclusion
Chapter 5: Child Maltreatment
Introduction
Defining child maltreatment
Prevalence and incidence of child maltreatment in Australia
Understanding the risks associated with child maltreatment
Adverse impacts of child maltreatment for children, adolescents, and adult survivors
Protective factors and preventing child maltreatment
Conclusion
Chapter 6: The Child, the Young Person and the Law
Introduction
The governmentality approach
The child
The ‘adolescent’ young person
Conclusion
Part II: Children and Public Law Issues
Chapter 7: The Criminal Responsibility of Children
Introduction
How the law operates
Rebutting the presumption
Criticisms of the presumption
Conclusion
Chapter 8: Young People and Juvenile Justice
Introduction
The legislative framework
Police
The children’s court
Drug courts
Diversion and restorative justice
Conclusion
Chapter 9: Protecting Children from Abuse and Neglect
Introduction
Historical context
Legislative and policy framework for child protection
Conclusion
Chapter 10: E-Safety: Protection of Children from Cyber-bullying, Sexting and Privacy Invasion
Introduction
Cyber-bullying
Sexting
Privacy invasion
Conclusion
Chapter 11: Migrant and Non-Citizen Children
Introduction
Migrant children and the right to family life
Children and humanitarian migration
Migrant children and immigration enforcement: The detention cases
Migrant children and access to citizenship
Conclusion
Chapter 12: Education of Children — Preschool to Secondary Education
Introduction
Early childhood education
Primary and secondary education
Conclusion
Chapter 13: Aboriginal and Torres Strait Islander Children’s Welfare and Well-being
Introduction
The legacy of the past
A human rights approach to Indigenous children’s well-being
Bringing Them Home
Australian child welfare reform
The NT Intervention/Stronger Futures and cashless welfare
Case study: Manitoba
Historic Canadian Human Rights Tribunal decision
Conclusion
Chapter 14: Compensation for Survivors of Institutional Child Sexual Abuse in Australia: Tortious Rights and Challenges for Reform
Introduction
Statutory limitation periods and historical child abuse
Is there a ‘legal person’ defendant with assets to meet a claim?
Available causes of action in tort
Australian developments
Victorian Government’s Betrayal of Trust report — recommendations and implementation
Conclusion
Part III: Children and Private Law Issues
Chapter 15: Children and ‘Family Law’
Introduction
Statistical background
Who is a ‘child’ and who is a ‘parent’?
The rights of children and the obligations of parents
Court versus private resolution of parenting disputes
Principles for resolving parenting disputes
Forced marriage of children
Financial support of children
Conclusion
Chapter 16: Adoption
Introduction
Background
Regulation of local (and known child) adoption
Adoption of ‘known’ local children
Consent to adoption
Discharge of adoption orders
Access to adoption information
Intercountry adoption
Conclusion
Chapter 17: Surrogacy
Introduction
Defining surrogacy
Australian laws and regulation
Difficulties faced by the federal family courts
International human rights and surrogacy
Conclusion
Chapter 18: Medical Treatment
Introduction
Children as recipients of duties
Decision-making
The role of consent at common law
‘Capacity’ and ‘competency’
Children’s capacity to make medical treatment decisions
Parents’ capacity to make medical treatment decisions for children
Jurisdiction of the courts
Conclusion
Chapter 19: Civil Liability of Children
Introduction
Part A: Contractual liability
Common law
Minors’ contracts in New South Wales
Minors’ contracts in South Australia
Conclusion
Part B: Liability in tort
Intentional torts
Negligence
Contributory negligence
Conclusion
Chapter 20: Children and Succession
Introduction
Wills
Estates
Conclusion
Part IV: Children in Court
Chapter 21: Child Witnesses
Introduction
The dynamics of child sexual abuse and its prosecution
Prevalence of trials relating to child sexual abuse
The law relating to children’s evidence
Particular challenges facing child witnesses
Reforms/changes in law and procedure to assist child witnesses
Conclusion
Chapter 22: Legal Representation of Children
Introduction
Developments in the legal representation of children
Models of representation
Representation in family law
Representation in care and protection law
Representation in criminal law
Approaches to children’s competence
Communication skills, knowledge and commitment
Specialisation and principles
Conclusion
Appendix:. Practical Scenarios
PSc.1: Criminal Record Scenario
PSc.2: Sexting Scenario
PSc.3: School Suspension Scenario
PSc.4: Forced Marriage Scenario
PSc.5: Medical Scenario
PSc.6: Contract Scenario
Index

Citation preview

Children and the Law in Australia 2nd edition Editors Lisa Young BJuris, LLB (UWA), LLM (Cantab) Admitted as a Barrister and Solicitor of the Supreme Court of Western Australia and the High Court of Australia Associate Professor, School of Law, Murdoch University, Perth

Mary Anne Kenny BJuris, LLB (Hons) (UWA) LLM (Iowa) Admitted as a Barrister and Solicitor of the Supreme Court of Western Australia and the High Court of Australia Associate Professor, School of Law, Murdoch University, Perth

Geoffrey Monahan BA (Macq), LLB (Syd), LLM (NSW) Judge, Federal Circuit Court of Australia

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Young, Lisa. Kenny, Mary Anne. Monahan, Geoffrey. Children and the law in Australia. 2nd edition. 9780409342024 (pbk). 9780409342031 (ebk). Includes index. Children — Legal status, laws, etc — Australia. Child abuse — Law and legislation — Australia. Children’s rights — Australia. Young, Lisa. Kenny, Mary Anne. Monahan, Geoffrey.

© 2017 Reed International Books Australia Pty Limited trading as LexisNexis. 1st Edition 2013 This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Myriad Pro and Minion Pro Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Foreword I am honoured to be asked to write the introduction to the second edition of this seminal collection of articles on the law relating to children in Australia. It is depressing to realise not only how little progress we have made since the publication of the first edition in the proper recognition of the rights of children in Australia, but also that successive Australian governments have made their situation even worse. In many cases this has involved gross breaches of relevant international conventions and international law. This anthology brings to bear an excellent group of well-informed contributions to the human rights debate in Australia and once again highlights the indifference of the Federal Government and most state and territory governments to children’s rights in framing their policies. Indeed, indifference is too kind a word for the pursuit of policies which are deliberately designed to either remove the rights of children, or even fail to take them into account. Examples abound throughout the chapters of this book, such as the treatment of: asylum seeker children and children generally in the immigration system, Aboriginal and Torres Strait Islander children, children in custody and their largely unnecessary continued detention, children in out-of-home care and many others. Anti-terrorist legislation is passed in direct breach of the UN Convention on the Rights of the Child (CRC) because of several isolated crimes by children. As I did in introducing the first edition, for space reasons I will mention only certain specific chapters, but this is not to say that the others are not worthy of mention as they are of uniformly high standard. The work is not

only an invaluable aid to those of us who are interested in human rights, but also covers the whole gamut of problems faced by our children in relation to the law. There are many other interesting contributions, such as Lisa Young’s chapter on ‘Children and “Family Law”’ and Mary Anne Kenny and Mary Crock’s chapter on ‘Migrant and Non-Citizen Children’, which deals with how Australia’s immigration and citizenship laws affect children generally and which indicates that in almost every aspect they treat children as appendages and are in breach of the CRC. An unusual feature of this anthology is that the first two chapters set the tone for the book. The first chapter, ‘Children and the Law: An Historical Overview’ by Judith Bessant and Rob Watts, provides a great and challenging start. All of it is confronting, much is controversial and open to debate and dissent, but this is how it should be in a book such as this. The authors make a strong argument for the proposition that children under 12 and young people aged 12–25 remain one of the most regulated groups of people in Australia. They say that regulatory processes are typically defended on the ground that they promote the development of children and protect them from various harms. They question this, pointing to the fact that too many children have been placed at risk of serious harm by the very institutions ostensibly established to protect them. This proposition is supported by a spate of official inquiries, including the Royal Commission into Institutional Responses to Child Sexual Abuse (dealt with in Chapter 14) and many official inquiries into child protection systems, the most recent being the Royal Commission into the Northern Territory child protection systems, which followed the ABC’s televised disclosure of the appalling abuse of young people at the Don Dale Centre. They also point to the paradox of Australia’s failure to give effect to the

CRC, meaning that most children and young people lack the basic legal protection afforded to other citizens. They question the basis of defining the age of legal responsibility, which is derived from long-held beliefs and stories, the most significant of which are that ‘childhood’ and ‘adolescence’ are natural and biological phenomena, and that childhood and youth are periods of biological and social dependency in the human life cycle. They argue that historically other groups, such as women, poor and working-class people, ‘coloured’ and Indigenous people have similarly been defined as inferior on the basis of lacking the relevant ethical capacities deemed necessary to be citizens and treated with respect. They go on to argue that like these groups, children and young people have been subject to ‘civilising offensives’ ostensibly designed to protect them, but actually preventing them from exercising their rights, including the right to employment, sex or other behaviour designated as immoral or uncivilised. The authors quote the removal of mixed-race children from their parents in Australia as an example of this ‘civilising’ process, as was the Northern Territory ‘Intervention’. From this point, the authors go on to question concepts such as compulsory education, child protection laws and juvenile justice laws as applied by Children’s Courts, and the so-called protection of Indigenous people by confining them to reserves and assimilation as part of this ‘civilising’ practice. The second chapter, ‘The Development of Children’s Rights’ by John Tobin, is one of the best expositions on the subject that I have read, commencing with a quote from Hillary Rodham (as she then was) that ‘children’s rights’ is a slogan in search of a definition. Tobin then sets out to give it a definition and does so extremely well. He summarises the arguments against children having defined rights, commenting that most of them are based on either an idealised vision as to

the reality of children’s lives, or a misunderstanding as to the role and content of the various rights that have been attributed to children under the CRC. He then analyses what rights children have in Australia and comments on the continued existence of gaps exposed by the 1997 Seen and Heard report of the Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission (HREOC) in 1997 and the concluding observations of the Committee on the Rights of the Child in 2012. As to the latter, he points out that under international law Australia is obliged to take measures in good faith to address the concerns of the Committee, but in the absence of any coercive mechanism, Australia can (and often does) ignore these concerns. On the plus side, he points to the power of the HREOC to monitor and receive complaints about breaches of the CRC, which provided the basis for HREOC’s two inquiries into the immigration detention of children. He criticises the failure of Australian governments and judges — particularly of the High Court of Australia — to accept the utility of recognising children’s rights as not simply a legal concept, but also as an ethical and political framework to advance the rights of all children. He points out that the CRC provides core standards of a rights-based approach for children, these being the three general principles of a rightsbased approach, namely interdependence and indivisibility, accountability for meeting the rights conferred by international instruments which have been ratified, and universality, namely that all children at all times are endowed with the same rights that are universally applicable. In addition, there are four articles under the CRC that have been identified by the Committee on the Rights of the Child as the general principles of a rights-based approach, namely non-discrimination, the best interests principle, the right to survival and the right to participation. He concludes by almost echoing the conclusion of the authors of the first chapter, that the implementation of children’s rights is about confronting the marginalism, paternalism and benevolence that have characterised their

treatment; recognising their dignity, entitlements and evolving autonomy; accepting social responsibility and burden sharing in relation to the realisation of their entitlements; and creating participatory, sustainable and empowering processes to ensure the realisation of their rights, which were accepted by the Australian Government upon its ratification of the CRC. ‘Developmental Science, Child Development and the Law’ by Jeanette A Lawrence and Agnes E Dodds (Chapter 4) provides an interesting counterpoint to Chapter 1. The authors accept that there can be legitimate criticisms of some aspects of developmental science in the past on the basis that these tended to deny the individuality of the child. However, they argue that contemporary developmental science has moved away from generalisations said to appy to all children and now treats each child or adult as a person, but one who is on a developmental pathway. They conclude the chapter by saying: ‘The law can best serve children’s best interests by understanding that they are changing, developing, being and becoming persons.’ As someone who has had a lot to do with children in a legal context, I do not believe that it is possible to deal with them without taking developmental issues into account. On the other hand, the authors’ statement still appears to contain the misconception that children are ‘becoming persons’ as part of the developmental process, rather than being persons in their own right. In Chapter 5, ‘Child Maltreatment’ by Judy Cashmore and Briony Horsfall, whose expertise in this area is well known, there is an extensive discussion of the various types of child mistreatment which provides an invaluable guide to those interested in this area. Their conclusions are that equitable access to quality health, education and childcare services is an essential form of support for families and children in preventing abuse and mistreatment. The critical failure of governments to recognise this lies at the heart of the problems in the area. They comment that: at the other end of the spectrum are the services provided by the statutory child protection

authorities for a small but increasing number of children who are reported to the statutory child protection system; a reactive rather than proactive response. There is concern about these numbers and recognition that Australian states and territories need to do more to prevent child maltreatment by shifting the focus and resources from the statutory end to early intervention and prevention. An overloaded and resource-stretched system cannot respond to children in real need of protection from maltreatment.

They also observe that these problems are not confined to the child protection system, but extend to the family law system. The chapter ‘Aboriginal and Torres Strait Islander Children’s Welfare and Well-being’ by Terri Libesman and Kyllie Cripps (Chapter 13) is another outstanding contribution. The authors make the worrying point that there has been a significant increase in the number of Indigenous children being separated from their families in the 20 years since the Bringing Them Home Report of the Human Rights and Equal Opportunity Commission, which made a number of recommendations concerning this problem. As at 30 June 2014, the rate of Indigenous children in out-of-home care was nine times the rate of non-Indigenous children, which is a disgraceful figure. Worse still is that nationally in 2013–14, 45 per cent of Indigenous children aged 10–17 across the nation were under youth justice supervision in the community. They identify that this has occurred at a time when the Commonwealth and state and territory governments are complicit in the forced closure of Aboriginal communities with a policy that many see as a continuation of the Northern Territory ‘Intervention’. They argue that a human rights approach can provide an effective framework for Indigenous children’s welfare because it addresses the structural inequality and poverty faced by Indigenous communities and the need to address these issues, as well as supporting Indigenous children’s right to their cultural identity. The Chapter contains an extensive discussion of the relevance of international treaties such as CRC and International Covenant on Civil and

Political Rights (ICCPR) and the significance of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and suggests that the responsibility for Indigenous children be transferred to Indigenous organisations. It also contains a useful overview of Australian child welfare reform over the last 20 years as it applies to Indigenous children and a helpful discussion of Aboriginal and Torres Strait Islander child placement principles. The authors rightly express concern at the recent move by the states and territories to accelerate the making of ‘permanent’ child placement orders with time limits quite inappropriate to Indigenous children and the limited protection available to children the subject of such orders. They criticise provisions for the participation of Indigenous organisations in the decisionmaking process for Indigenous children. They also deliver stinging criticisms of the quarantining of social security income and cashless welfare cards, which continue unabated and even encouraged by the Turnbull Government. The chapter ends with an interesting discussion of the delivery of child welfare services in Manitoba, Canada, providing an interesting contrast to our own fragmented policies. As I have mentioned, time and space prevent me from discussing the many other interesting contributions to this work in this introduction, but I have found reading all of them to be a fascinating experience that I am sure will be shared by the many readers of this publication in the future. The Hon Alastair Nicholson AO RFD QC Chair, Children’s Rights International, Honorary Professorial Fellow, University of Melbourne, Former Chief Justice, Family Court of Australia

Contributors Judith Bessant BA, DipEd, BEd, PhD (LaTrobe University). Professor, RMIT University, Melbourne. Judy Cashmore AO, BA (Hons), Dip Ed (Adelaide), MEd (Newcastle), PhD (Macquarie). Professor, Socio-Legal Research and Policy, Faculty of Law, The University of Sydney. Member of Judicial Commission of New South Wales. Anna Copeland BJuris, LLB. Senior Lecturer, School of Law, Murdoch University. Director of Clinical Legal Education Programs, Murdoch University. Kyllie Cripps BA (Hons) (UniSA), PhD (Monash), Senior Lecturer and Deputy Director, Indigenous Law Centre, Faculty of Law, University of New South Wales. Mary Crock BA (Hons), LLB (Hons), PhD (Melb), Professor of Public Law, University of Sydney. Accredited Specialist and Head Assessor in Immigration Law in the Specialist Accreditation schemes across Australia. Thomas Crofts LLB (Hons) (London), LLM (Würzburg), Dr Jur (Frankfurt/O). Professor, Criminal Law; Director, Sydney Institute of Criminology, Faculty of Law, The University of Sydney. Chris Cunneen PhD (Syd). Professor of Criminology, University of New South Wales. Fellow of the Academy for Social Sciences in Australia. Agnes Dodds BA (Hons), MA (Hons) (Melb). Associate Professor, Melbourne Medical School, The University of Melbourne. Jo Goodie BA LLB (Melb), PhD (Murdoch). Senior Lecturer, School of Law, Murdoch University.

Alex Horne BA (Hons), LLB (Hons), LLM Candidate (Sydney). Solicitor, Supreme Court of New South Wales and High Court of Australia, King & Wood Mallesons. Briony Horsfall BSocSc (Psych), BA (Hons) (Sociology), PhD (Sociology) (Swin). Adjunct Research Fellow, Department of Education and Social Science, Swinburne University of Technology. Senior Research Officer, Australian Institute of Family Studies. Jennifer Hyatt BA LLB (Hons) (UTS), GCLP (UTS). Solicitor of the Supreme Court of New South Wales. Legal Officer, Commonwealth Attorney-General’s Department, Canberra. Matthew Keeley LLB (QIT), Gr Dip Comms (UTS). Solicitor, Supreme Courts of New South Wales, Queensland and the Northern Territory and the High Court of Australia. Director, National Children’s and Youth Law Centre, University of New South Wales. Mary Anne Kenny BJuris, LLB (Hons)(UWA), LLM (Iowa). Associate Professor of Law and Programme Manager, GradCertAustMigLaw, Murdoch University. Adjunct Associate Professor, Centre for Human Rights Education, Curtin University. Registered migration agent. Admitted to practice in the Supreme Court of Western Australia and the High Court of Australia. Jeanette Lawrence BA (Hons) (Syd) PhD (Minnesota), ThL (Australian College of Theology). Honorary Associate Professor, Melbourne School of Psychological Science, The University of Melbourne. Honorary Research Fellow, Victorian Foundation for the Survivors of Torture. Terri Libesman BA LLB ( Macq) PhD (UNSW). Associate Professor of Law, University of Technology Sydney. Brenda McGivern B Com, LLB (Hons), PhD. Deputy Dean, Faculty of Law, The University of Western Australia. Chair, Western Australian Reproductive Technology Council. Member, Clinical Ethics Service for Princess Margaret Hospital and King Edward Memorial Hospital.

Kay Frances Maxwell LLB (QUT), Grad Dip Leg Prac (QUT), LLM (QUT), MEd (Griffith). Associate Professor, Thomas More Law School, Australian Catholic University. Geoffrey Ian Monahan BA (Macq), LLB (Syd), LLM (NSW), GCHE (UTS). Judge of the Federal Circuit Court of Australia. John Henry Pascoe AC, CVO, BA, LLB (Hons) (ANU). Chief Judge of the Federal Circuit Court of Australia. Nicola M Ross BSW (Hons) (UNSW), LLB (Hons) (Macquarie), PhD (Syd). Senior Lecturer, Newcastle Law School, University of Newcastle. Allison Silink PhD (UTS). Lecturer, Faculty of Law, University of Technology Sydney. Barrister, Supreme Court of New South Wales and High Court of Australia. Joan Squelch (DEd, MEd, BEd (Hons), BA, BIuris, LLB (University of South Africa), Grad Dip Legal Practice (UWA). Admitted to practice in the Supreme Court of New South Wales. Professor, School of Law, University of Notre Dame Australia (Fremantle). Pam Stewart LLB (Syd), LLM (Syd). Senior Lecturer, Faculty of Law, University of Technology Sydney. Anita Stuhmcke BA LLB (Hons), MJuris (Hons), PhD. Professor, Faculty of Law, University of Technology Sydney. John Tobin BComm/LLB (Hons) (Melb), LLM (Dist) (Lond), PhD (Melb). Professor, Melbourne Law School. Rob Watts BA, (Hons) DipEd, MA (LaTrobe), PhD (Melb). Professor, RMIT University, Melbourne. Rachel Williamson BA, LLB Candidate (UNSW). Research Assistant, National Children’s and Youth Law Centre, the University of New South Wales. Normann Witzleb Assr Jur, Dr Jur, LLB(Hons), GDLP. Legal Practitioner of the Supreme Court of the Australian Capital Territory and Barrister of the High Court of Australia. Associate Professor, Deputy Director, Centre for

Commercial Law and Regulatory Studies, Faculty of Law, Monash University. Lisa Young, BJuris LLB (UWA), LLM (Cantab). Associate Professor, School of Law, Murdoch University. Editor, Australian Journal of Family Law. Admitted to practice in the Supreme Court of Western Australia and the High Court of Australia.

Preface Children and the Law in Australia is aimed at providing a comprehensive and thought-provoking coverage of the ways in which the law and children interact. It was born out of our shared concern about the lack of a suitable book that would assist in, and indeed inspire, further research and scholarship in this important area. We also wanted to produce a resource that would assist students, teachers, practitioners, law-makers, judges and the community — not just to better understand the legal problems faced by Australia’s young, but also to better support the delivery of legal services to children. As the intersections between children and the law are many and varied, we agreed it was important to cover a wide range of topics so that readers could choose what interested them, while at the same time providing the wider community with a rich resource. For that reason, we also decided it was essential to create an edited volume that could draw on the expertise of specialists in each of the relevant areas. Consequently, we have brought together a range of expert authors in both public and private law, and from the social sciences, to achieve our goal. The second edition represents a major revision of the content from our first edition. Many of the chapters in the first edition required substantial updating due to major reforms in the law in the last decade; this work has been undertaken by existing and new authors. Most chapters from the first edition have been retained and we have added new chapters to address topical issues including: surrogacy, compensation for survivors of institutional abuse, cyber-bullying, sexting and privacy invasion. In addition, we have included an Appendix with case scenarios developed by the National Children’s and

Youth Law Centre. The book is designed not only to outline key features of the relevant law in each area, but also to identify where the current debates lie for each of the chosen topics. Before turning to these specific topics, the book provides six ‘introductory’ chapters, which set the context and include: an historical perspective on the law and children in Australia and on the development of children’s rights generally, information on childhood development and abuse and neglect issues, and critiques of how the law copes with thorny matters such as when human life begins and how the law constructs young adults. The second part of the book focuses on key public law issues, such as protecting children from neglect and abuse, contemporary child welfare, Indigenous children, and the impact of Commonwealth and state and territory laws on young Australians, in particular in the areas of immigration, education and E-safety. The second part also includes chapters on the criminal responsibility of children, and young people and the juvenile justice system. The third part of the book analyses the key private law areas relevant to Australia’s children and youth — family law including forced marriage, adoption, civil liability, financial support, wills and estates, and access to medical treatment. A chapter on surrogacy has also been included in this part, although of course this raises matters of both private and public law. The fourth part of the book focuses on the issue of children in court — the ways in which they are legally represented in criminal, civil and family law matters, as well as children as witnesses in legal proceedings. The new Appendix includes practical case scenarios involving the impact of having a criminal record, sexting, school suspension, forced marriage, consent to medical treatment, and young people and contracts. As the various chapters show, there is much work to be done in terms of research, analysis and discussion of the ways in which Australian law impacts on, and interacts with, children and young people. Despite the concerning nature of much of the subject matter included in the book, we have all enjoyed contributing to, and jointly editing, this new edition.

Lisa Young Mary Anne Kenny Geoffrey Monahan October 2016

Acknowledgments This second edition would not have been possible without the patience, work and cooperation from the many contributors, all of whom took time from their other commitments to meet deadlines for the preparation of this book. Their depth of research knowledge and commitment to furthering the legal rights of children has been an inspiration. We thank our families, and Lisa and Mary Anne thank their law school, for their support during the writing and editing of this book. A special thanks to the Hon Alastair Nicholson for finding time to contribute the Foreword. We also thank Jocelyn Holmes and Natasha Broadstock for their outstanding editorial skills. Last, we thank LexisNexis for making this book a reality and for their continuing support. Lisa Young Mary Anne Kenny Geoffrey Monahan

Table of Cases References are to paragraph numbers

A A, Re (1993) 16 Fam LR 715 …. 18.41 A v DPP [1992] Crim LR 34 …. 7.15, 7.18 A and B v Children’s Court (Vic) [2012] VSC 589 …. 2.7, 22.33 A, DC v Prince Alfred College Inc [2015] SASC 12 …. 14.18 — v — [2015] SASCFC 161 …. 14.12, 14.18, 14.25, 14.27 AB v Victoria (unreported, SC (Vic), Gillard J, 15 June 2000) …. 9.39 Adamson and Adamson (2014) FamCAFC 127 …. 15.17 Adeels Palace v Moubarak (2009) 239 CLR 420 …. 14.26 Adoption Application No AD 58/1984, Re (1986) 11 Fam LR 518 …. 16.48 Agar-Ellis, Re; Agar-Ellis v Lascelles (1883) 24 Ch D 317 …. 2.2, 18.32 Alex, Re (2004) 180 FLR 89; 31 Fam LR 503 …. 18.10, 18.16, 18.17, 18.26, 18.31, 18.40, 18.41, 18.45 AMS v AIF (1999) 199 CLR 160; 24 Fam LR 756 …. 15.16, 18.44 Application of A; Re D (2006) 36 Fam LR 142; [2006] NSWSC 1056 …. 16.42 Archbishop of Perth v ‘AA’ to ‘JC’; DJ v Trustees of the Christian Brothers (1995) 18 ACSR 333 …. 14.9 Attorney-General (Qld) (Ex Rel Kerr) v T (1983) 46 ALR 275; 57 ALJR 285 …. 3.1, 3.2, 3.9, 3.11, 3.14, 3.16, 18.3 Attorney-General’s Reference (No. 3 of 1994) [1998] AC 245; [1997] 3 WLR 421 …. 3.12, 3.19 Australian Capital Territory Schools Authority v El Sheik (2000) Aust Torts Reports ¶81-577; [2000] FCA 931 …. 12.30, 12.31

— v Raczkowski [2001] ACTSC 61 …. 12.31 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 …. 14.32 AW v New South Wales [2005] NSWSC 543 …. 14.32

B B, Re (1983) 9 Fam LR 40 …. 15.21 B v Islington [1991] 1 QB 638 …. 3.9 — v J (1996) 21 Fam LR 186 …. 15.5 — v R (1958) 44 Cr App R 1 …. 7.10 B (a minor) (wardship: medical treatment), Re [1981] 1 WLR 1421 …. 18.43 B & B v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604; 30 Fam LR 181; [2003] FamCA 451 …. 2.9, 11.7 B and B: Family Law Reform Act 1995, Re (1997) 21 Fam LR 676; FLC ¶92755 …. 18.29, 18.45 B and R, Marriage of (1995) 19 Fam LR 594; FLC ¶92-636 …. 15.11 B (Infants) and B (Intervener) v Minister for Immigration and Multicultural and Indigenous Affairs(2003) 75 ALD 64 …. 18.16 Baby P (an unborn child), Re [1995] NZFLR 577 …. 3.13 Bandcroft v Lindsay [2016] FCCA 1236 …. 9.66 Barrett v Coroner’s Court of South Australia [2010] SASCFC 70 …. 3.2 Barton v Armstrong [1969] 2 NSWR 451 …. 10.13 Bateman v Kavan (2014) 52 Fam LR 648; [2014] FCCA 2521 …. 15.5 Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; 227 ALR 425 …. 14.5, 14.7 Battiato v Lagana [1992] 2 Qd R 234 …. 14.11 Bazley v Curry (1999) 174 DLR (4th) 45; [1999] 2 SCR 534 …. 14.19, 14.39 Beasley v Marshall (1977) 17 SASR 456 …. 19.42 Bellinger v Bellinger [2002] 1 All ER 311 …. 3.11 Beth, Re (2013) 42 VR 124; [2013] VSC 189 …. 2.7 Blackwater v Plint [2005] 3 SCR 3 …. 14.19

Blanch, Marriage of (1998) 24 Fam LR 325; (1999) FLC ¶92-837 …. 15.11 Blasson v Blasson (1864) 2 De GJ & S 665; 46 ER 534 …. 3.8 Bojczuk v Gregorcewicz [1961] SASR 128 …. 19.8, 19.21 Bowditch v McEwan (2002) 36 MVR 235 …. 3.3 BP v R; SW v R [2006] NSWCCA 172 …. 7.8, 7.10, 7.12 Bradford-Smart v West Sussex County Council [2002] EWCA Civ 7 …. 10.14, 10.16, 10.17 Breen v Williams (1995) 186 CLR 71; 138 ALR 259 …. 18.5 Brightwater Care Group (Inc) v Rossiter (2009) 40 WAR 84 …. 18.9 Briginshaw v Briginshaw (1938) 60 CLR 336 …. 9.66 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ….. 14.5 Bristol Myers Squib Co v FH Faulding & Co Ltd (1998) 41 IPR 467 …. 3.22 Broadhurst v Millman [1976] VR 208 …. 19.35 Broome v Cassell & Co Ltd [1972] AC 1027 …. 14.32 Brown v Maurice Blackburn Cashman [2013] VSCA 122 …. 10.11 Bruce, Re [1979] Tas SR 110 …. 3.8 Buckland v Trustees, Executors & Agency Co Ltd (1966) 40 ALJR 164 …. 20.35 Bujnowicz v Trustees of the Roman Catholic Church of the Diocese of Sydney [2005] NSWSC 457 …. 12.31 Bullock v Miller (1987) 5 MVR 55 …. 19.35, 19.41 Burnard v Haggis (1863) 4 CBNS 45 …. 19.15 Burt, Re [1988] 1 Qd R 23 …. 20.33 Burton v Islington Health Authority; De Martell v Merton & Sutton Health Authority [1993] QB 204 …. 3.9, 18.3

C C v DPP [1994] 3 All ER 190; [1995] 1 Cr App R 118 …. 7.10, 7.26 — v — [1996] AC 1; [1995] 2 All ER 43 …. 7.9, 7.10, 7.17, 7.18, 7.21, 7.26 — v S [1988] QB 135 …. 3.2, 3.9, 3.18

C (a minor) (medical treatment), Re [1998] 1 FLR 384 …. 18.35 C (Refusal of Medical Treatment), Re [1994] 1 FLR 31 …. 18.9 Canada (Human Rights Commission) v Canada (Attorney General) [2012] FC 445 …. 13.35, 13.36 Cattanach v Melchior (2003) 215 CLR 1; 199 ALR 131 …. 3.3, 3.5 CC v DPP [1996] 2 Cr App R 375 …. 7.21 CES v Superclinics (Australia) Pty Ltd (1995) 38 NSWLR 47 …. 3.17 CGC v Children’s Guardian [2016] NSWCATAD 116 …. 9.56 Chan v Fong (1973) 5 SASR 1 …. 19.41 Chapman v Hearse (1961) 106 CLR 112 …. 3.4, 14.22 Chapple v Cooper (1844) 153 ER 105 …. 19.9 Chatterson v Gerson [1981] QB 432 …. 18.9 Children, Youth & Women’s Health Services Inc v YJL, MHL and TL (by his next friend) [2010] SASC 175 …. PSc.5 Chotiputhsilpa v Waterhouse (2005) 44 MVR 456; [2005] NSWCA 295 …. 19.35, 19.41 Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; 110 ALR 97 …. 11.7 Cirak v Todd (1977) SASR 316 …. 19.42 Clay v Clay (1999) 20 WAR 427 …. 20.22 CMS (a Child) v Giacomini [2003] WASCA 42 …. 6.16 Coates v National Trustees Executors & Agency Co Ltd (1956) 95 CLR 494 …. 20.35 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 …. 10.29 — v R (1994) 179 CLR 427 …. 14.11 Coffey v Queensland [2012] QSC 186 …. 14.11 Cole v Turner (1704) 6 Mod 149; 87 ER 907 …. 14.11 Collins, Re [1990] 2 WLR 161 …. 20.32 Collins v Wilcock [1984] 3 All ER 374; [1984] 1 WLR 1172; …. 14.11 Commissioner for Railways v Cardy (1960) 104 CLR 275 …. 19.43 Commonwealth v Introvigne (1982) 150 CLR 258; 41 ALR 577 … 10.14, 12.30, 14.20, 14.22, 19.43, 19.55, 19.56

Cope, Re; Cope v Cope (1880) 16 Ch D 49 …. 20.20 Corbiere v Canada (Minister of Indian and Northern Affairs) [1999] 2 SCR 203 …. 13.36 Corn v Matthews [1893] 1 QB 310 …. 19.10, 19.11 Coutts & Co v Browne-Lecky [1957] KB 104 …. 19.19 Cox v Ministry of Justice [2016] UKSC 10 …. 14.15 — v New South Wales (2007) 71 NSWLR 225; [2007] NSWSC 471 …. 10.14, 10.16, 12.32 CPCF v Minister for Immigration and Border Protection [2015] HCA 1 …. 11.7 CPS v P [2007] EWHC 946 …. 7.23 Cranbrook School v Stanley [2002] NSWCA 290 …. 14.6 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 …. 14.22, 14.29

D D v Director-General, Department of Community Services (2005) 34 Fam LR 445; [2005] NSWCA 474 …. 16.44 D (a minor), Re [1976] Fam 185 …. 18.43 D’Arcy v Myriad Genetics Inc [2015] HCA 35 …. 3.21 D’Arcy and Lay, Re; Clark (1994) FLC ¶92-466 …. 16.29 Deatons Pty Ltd v Flew (1949) 79 CLR 370 …. 14.16 De Francesco v Barnum (1890) 45 Ch D 430 …. 19.11 De Silva v R [2013] VSCA 339 …. 21.24 Dederer v Roads and Traffic Authority (2005) Aust Torts Reports ¶81-792; [2005] NSWSC 185 …. 19.47, 19.48 Dehnert v Perpetual Executors & Trustees Association of Australia Ltd (1954) 91 CLR 177 …. 20.32 Department of Health and Community Services (NT) v JWB and SMB (Marion’s case) (1992) 175 CLR 218; 106 ALR 385; [1992] HCA 15 …. 2.3, 6.7, 11.7, 14.11, 15.3, 18.8, 18.9, 18.10, 18.14, 18.15, 18.16, 18.21,

18.26, 18.28, 18.29, 18.31, 18.32, 18.34, 18.35, 18.38, 18.40, 18.41, 18.42, 18.43, 18.44, 18.46, 18.47, 22.20 Department of Human Services v Brouker (2010) 44 Fam LR 486 …. 15.21 Dillon v Wood (1881) 2 NSWR 298 …. PSc.6 Director of Public Prosecutions v TY (No. 3) (2007) 18 VR 241; [2007] VSC 489 …. 2.7 Director-General, Department of Community Services v D [2007] NSWSC 762 …. 16.44 Director-General, New South Wales Department of Community Services v Y [1999] NSWSC 644 …. 18.24 Director-General of the Department for Community Development v T’Hart (2003) 27 WAR 185; 30 Fam LR 594; [2003] WASCA 110 …. 18.10, 18.43 Doe v Bennett [2004] 1 SCR 436 …. 14.15, 14.19 Donnelly v Health Care Complaints Commission (NSW) [2011] NSWSC 705 …. 9.39 Dudley and Chedi [2011] FamCA 502 …. 17.34, 17.43 Duncan v Trustees of the Roman Catholic Church of the Archdiocese of Canberra and Goulburn [1998] ACTSC 109 …. 12.31 Durney v Victoria University [2014] VSC 161 …. 12.28 Duval v Sequin (1972) 26 DLR (3d) 418 …. 18.3

E E, Re [1974] 1 NSWLR 739 …. 16.20 E, Re [1993] 1 FLR 386 …. 18.18 Edson v Roads and Traffic Authority (2006) 65 NSWLR 453 …. 19.41 Elliott v Joicey [1935] AC 209 …. 3.8, 20.14 Ellis v Pell [2006] NSWSC 109 …. 14.6, 14.9 — v Wallsend District Hospital (1989) 17 NSWLR 553 …. 14.20 Ellis, Re; Perpetual Trustee Co Ltd v Ellis (1929) 29 SR (NSW) 470 …. 20.17 Ellison and Karnchanit [2012] FamCA 602 …. 17.34, 17.43 Elspeth v Peter [2006] FamCA 6 …. 15.20 Erlich v Leifer [2015] VSC 499 …. 14.12, 14.18, 14.27, 14.32

Evans’ Settlement, Re; Watkins v Whitworth-Jones [1967] 3 All ER 343 …. 20.23 Eve, Re (1986) 31 DLR (4th) 1 …. 18.43, 18.44

F F v Padwick [1959] Crim LR 439 …. 7.16 F, Re; Ex parte F (1986) 161 CLR 376; 10 Fam LR 940 …. 18.42 F (in utero), Re [1988] 2 All ER 193; [1988] 2 WLR 1288; [1988] Fam 122 …. 3.9, 3.11, 3.12 F, Marriage of (1989) 13 Fam LR 189; FLC ¶92-031 …. 15.3, 18.3 F (Mental Patient: Sterilisation), Re [1990] 2 AC 1 …. 14.11, 18.35 Fertilitescentrum AB and Luminis Pty Ltd, Re (2004) 62 IPR 420; [2004] APO 19 …. 3.21, 3.22, 3.23, 3.24, 3.25 Ffrench v Sestili [2007] SASC 241 …. 14.16 Finlay and Punyawong [2011] FamCA 503 …. 17.43 Finney v The Hills Grammar School …. 12.23 First Nation Child and Caring Society of Canada v Attorney General of Canada [2016] CHRT 2 …. 13.34, 13.35, 13.36 Fogwell and Ashton (1993) 17 Fam LR 94; FLC ¶92-429 …. 16.29 Fontin v Katapodis (1962) 108 CLR 177 …. 14.11, 14.32 Forde v Skinner (1830) 4 Car & P 239; 172 ER 687 …. 14.11 Fountain v Alexander (1982) 150 CLR 615; 40 ALR 441 …. 18.38

G G (Surrogacy: Foreign Domicile), Re [2007] EWHC 2814 …. 17.4 Gault, Re 387 US 1 (1967) ….. 2.3, 6.6, 22.36 Gertsman (dec’d), Re [1966] VR 45 …. 20.23 Geyer v Downs [1975] 2 NSWLR 835 …. 19.54 — v — (1977) 138 CLR 91; 17 ALR 408 …. 12.30, 12.31, 19.54 Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 …. 10.29 Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112;

[1985] 3 All ER 402 …. 2.3, 6.7, 11.7, 15.3, 18.14, 18.15, 18.16, 18.17, 18.20, 18.21, 18.25, 18.28, 18.29, 18.31, 18.34, 18.35, 18.41, 18.46, 22.30, PSc.5 Giumelli v Johnston (1991) Aust Torts Reps ¶81-085 …. 14.11 Goode v Thompson [2001] QSC 287 …. 19.41 Goode and Goode (2006) FLC ¶93-286 …. 15.15 Goodman v Windeyer (1980) 144 CLR 490 …. 20.35 Goss v Nicholas [1960] Tas SR 133 …. 14.11 Government of the Republic of South Africa v Grootboom (CCT 11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 …. 2.15 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 …. 14.22, 14.29 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70…. 10.13, 14.32 Great Lakes Shire Council v Dederer (2006) Aust Torts Reports ¶81-860; [2006] NSWCA 101 …. 19.48, 19.49, 19.51 Green v Country Rugby Football League of NSW Inc [2008] NSWSC 26 …. 19.53 Gregory v New South Wales [2009] NSWSC 559 …. 10.14 Griffiths v Wood (1994) 62 SASR 204; 19 MVR 218 …. 19.35, 19.41 Groth & Banks (2013) 49 Fam LR 510; [2013] FamCA 430 …. 15.5 Gunning v Fellows (1997) 25 MVR 97 …. 19.41 Guthrie v Spence [2009] NSWCA 369 …. 14.5 GWW and CMW, Marriage of (1997) 21 Fam LR 612 …. 18.41, 18.46

H Hahn v Conley (1971) 126 CLR 276 …. 19.37 Hamilton v Fife Health Board [1993] 4 Med LR 201 …. 18.3 — v Lethbridge (1912) 14 CLR 236 …. 19.10, 19.11, 19.14 Hancock, Re Estate of [2000] NSWSC 875 …. 20.20 Haringey London Borough Council v C, E and Another Intervening [2006] EWHC 1620; [2007] 1 FLR 1035 …. 17.34

Harrild v Director of Proceedings [2002] NZAR 513 …. 3.12 Harrison and Woollard, Marriage of (1995) 18 Fam LR 788; FLC ¶92-598 …. 15.11 Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; [2006] HCA 15 …. 3.3, 3.5 Hayne, Marriage of (1994) FLC ¶92-512 …. 20.22 Heath & Heath [2007] FamCA 148 …. 9.65 Henry v Thompson [1989] 2 Qd R 412 …. 14.11, 14.32 Hewer v Bryant [1970] 1 QB 357 …. 15.3, 18.32, 18.34 Hill v Crook (1873) LR 6 HL 265 …. 20.13 — v Van Erp (1997) 188 CLR 159 …. 14.21 Hills Grammar School v Human Rights and Equal Opportunity Commission [2000] 100 FCR 306 …. 12.23 Hoffman and Hoffman [2014] FamCAFC 92 …. 15.17 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 …. 14.14 Hospital v T [2015] QSC 185 …. PSc.5 Hopkins v Queensland [2004] QDC 21 …. 14.6 Horman, Marriage of (1976) 5 Fam LR 796; FLC ¶90-024 …. 15.11, 18.47 Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 …. 19.18 Hoye v Neely; Department of Community Services (Intervener) (1992) 15 Fam LR 578; FLC ¶92-310 …. 16.34 Huddleston v Infertility Center of America, Inc 700 A2d 453 (1997) …. 17.41 Hughes v Lord Advocate [1963] AC 837 …. 19.43 — v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 …. 20.35 Hunter and New England Area Health Service v A (2009) 74 NSWLR 88 …. 18.9 Hwang, Re [2004] APO 24 …. 3.21, 3.23, 3.24, 3.25

I I, Marriage of (1979) 34 FLR 532 …. 18.47

Innes v Wylie (1844) 174 ER 800 …. 14.11 Introvigne v Commonwealth (1980) 21 ALR 251 …. 19.55 IPH v Chief Constable of South Wales [1987] Crim LR 42 …. 7.12

J J v C [1970] AC 668 …. 18.38, 18.44 J (a minor) (wardship: medical treatment), Re [1991] 2 WLR 140 …. 18.35 Jacobi v Griffiths [1999] 2 SCR 570 …. 14.19 Jaensch v Coffey (1984) 155 CLR 549 …. 14.21 Jago v District Court of NSW (1989) 168 CLR 23 …. 14.7 Jamie, Re (2013) 278 FLR 155; [2013] FamCAFC 110 …. 2.7, 18.25, 18.31, 18.41, 18.43 Jamie, Re [2015] FamCA 455 …. 18.16, 18.31 JBH and JH (Minors) v O’Connell [1981] Crim LR 632 …. 7.18 Jennings v Rundall (1799) 8 Term Rep 335 …. 19.15 JG and BG, Marriage of (1994) 18 Fam LR 255; FLC ¶92-515 …. 15.11 JM v Runeckles (1984) 79 Cr App R 255 …. 7.15, 7.18 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 …. 14.28 Jones v Harris (unreported, SC(NSW), CA 40653/94, 10 December 1997) …. 3.26 JS, Re [2014] NSWSC 302 …. 18.9 JT (Adult: Refusal of Treatment), Re [1998] 1 FLR 48 …. 18.9

K K, Re (1994) 17 Fam LR 537 …. 22.17 K, Re Estate of the Late (1996) 5 Tas R 365 …. 3.10 Kandal v Khyatt (2010) 43 Fam LR 344 …. 15.21 Katundi and Katundi (Infants) v Hay [1940] St R Qd 39 …. 20.36 KD, Re [1988] AC 806 …. 18.38 Kearney, Re; Equity Trustees Executors & Agency Co Ltd v Kearney [1957] VR 56 …. 20.17

Kelly v Bega Valley County Council (Unreported, CA(NSW), 13 September 1982) …. 19.35, 19.44, 19.45 Kent and Pigot, Marriage of (1982) 8 Fam LR 537; FLC ¶91-240 …. 16.28 Kings and Murray [2009] FamCA 565 …. 15.19 Kioa v West (1985) 159 CLR 550 …. 12.28 Klug v Klug [1918] 2 Ch 67 …. 20.22 Koehler v Cerebos (Aust) Ltd (2005) 214 ALR 355 …. 14.30 Kondis v State Transport Authority (1984) 154 CLR 672 …. 14.20 Kosky v Trustees of the Sisters of Charity [1982] VR 961 …. 3.4 Kreet v Sampir [2011] FamCA 22 …. 15.21 Kress, Marriage of (1976) 2 Fam LR 11,330; FLC ¶90-126 …. 15.11 Kuru v New South Wales (2008) ALR 260 …. 14.11

L L v DPP [1996] 2 Cr App R 501 …. 7.12, 7.14 L (medical treatment: Gillick competency), Re [1998] 2 FLR 810 …. 18.19 L and T, Marriage of (1999) FLC ¶92-875 …. 18.44 Lamb v Cotogno (1987) 164 CLR 1 …. 14.10, 14.11, 14.32 Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497 …. 13.36 Lawrence, Re [1973] Qd R 201 …. 3.8, 20.32 Lee Yen Chum, Re (1963) 4 FLR 296 …. 16.20 Lesser (dec’d), Re; Equity Trustees Executors and Agency Co Ltd v Lesser [1947] VLR 366 …. 20.22 Lister v Hesley Hall Ltd [2002] 1 AC 215 …. 14.19 Littras v Littras [1995] 2 VR 283 …. 20.17 Lloyd v Bambach [2005] NSWSC 80 …. 14.6 — v Grace, Smith & Co [1912] AC 716 …. 14.16 Local Spiritual Assembly of the Baha’is of Parramatta Ltd v Babak Haghighat [2004] NSWCA 21 …. 12.31 London Borough of Haringey v Mrs E, Mr E, ‘C’ (A Child, by his Children’s

Guardian) [2004] EWHC 2580; [2005] 2 FLR 47; Fam Law 351 …. 17.34 Lovelace v Ontario [2000] 1 SCR 950 …. 13.36 Lowe v Barry [2011] FamCA 625 …. 17.2 Lowns v Woods (1996) Aust Torts Reports ¶81-376 …. 18.48 LSH, Re; Ex parte RTF (1987) 164 CLR 91; 75 ALR 469 …. 16.28 Lucas (dec’d), Re [1966] VR 267 …. 20.12 Lynch v Lynch (1991) 25 NSWLR 411 …. 3.3 — v Nurdin (1841) 1 QB 29;113 ER 1041 …. 19.40 Lysaght, Re (1987) 48 SASR 457 …. 20.13

M M, Application of (2000) 50 NSWLR 401 …. 20.3 M, Re [1968] 1 NSWR 770 …. 16.20 M v AJ (1989) 44 A Crim R 373 …. 7.16 — v M (1988) 166 CLR 69; 82 ALR 577; 12 Fam LR 606…. 9.66, 15.19 MA v R (2013) 226 A Crim R 575 …. 21.24 Madley v Madley [2011] FMCAfam 1007 …. 15.21 Marion (No 2), Re (1992) 17 Fam LR 336 …. 18.45 Mason v Mason [2013] FamCA 424 …. 17.34, 17.43 Mathieson, Marriage of (1980) 6 Fam LR 116; (1977) FLC ¶90-230 …. 15.11 MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231 …. 18.44 MB (an adult: medical treatment), Re [1997] 2 FCR 541 …. 18.9, 18.17, 18.20 McBain v Victoria (2000) 99 FCR 116; 177 ALR 320; [2000] FCA 1009 …. 2.10 McDonald v Lucas [1922] VLR 47 …. 7.9 McFadzean v CMFEU (2007) 20 VR 250 …. 14.11 McHale v Watson (1964) 111 CLR 384 …. 14.11, 19.31, 19.36 — v — (1966) 115 CLR 199 …. 19.31, 19.32, 19.33, 19.34, 19.35, 19.36, 19.40, 19.53 McLellan v Queensland Rail [2001] QCA 487 …. 19.53

McNamara v Duncan (1971) 26 ALR 584 …. 14.11 McQuinn and Shure [2011] FamCA 139 …. 17.4 Messiha (by his tutor) v South East Health [2004] NSWSC 1061 …. 18.35 Min An Insurance Co (HK) Ltd v The Ritz-Carlton Ltd [2002] HKCFA 34 …. 14.19 Minister for Health v AS (2004) 33 Fam LR 223 …. 18.16, 18.24, 18.26, 18.30, 18.35, 18.38, 18.42, 18.43, 18.46 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 128 ALR 353; [1995] HCA 20 …. 2.7 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; 206 ALR 130; [2004] HCA 20 …. 11.7, 18.42, 18.46 Minister of Health v Treatment Action Campaign (No 2) (CCT 8/02) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 …. 2.15 Mitchell v Government Insurance Office (NSW) (1992) 15 MVR 369 …. 19.41 Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 …. 14.19 Monis v R (2013) 249 CLR 92 …. PSc.3 Morgan, Re; Dowson v Davey (1910) 26 TLR 398 …. 20.17 Morris v CW Martin & Sons Ltd [1966] 1 QB 716 …. 14.16 Morriss v Marsden [1952] 1 All ER 925 …. 14.11 Ms B v An NHS Hospital Trust (2002) 2 FCR 1 …. 18.9, 18.19 Mullin v Richards [1998] 1 All ER 920 …. 19.33, 19.40 Mulvany v Lane (2009) 41 Fam LR 418; [2009] FamFAFC 76 …. 15.10 Munnings v Hydro Electricity Commission (1971) 125 CLR 1 …. 19.43 Mye v Peters (1967) 87 WN 26 …. 19.35, 19.41

N N v S (1995) 19 Fam LR 837 …. 9.66 N (No 2), Marriage of (1981) 7 Fam LR 889; FLC ¶91-111 …. 15.11 Namah v Pato [2016] PGSC 13 …. 11.7 Napier v Hepburn [2006] FamCA 1316 …. 9.66

Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377 …. 10.11, 10.13, 14.11 ND v DM (2003) 31 Fam LR 22; FLC ¶92-716 …. 15.5 Needham & Cassidy (2016) FCCA 1477 …. 15.16 Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362 …. 14.25 New South Wales v Corby [2010] NSWCA 27 …. 14.10, 14.32 — v Griffin [2004] NSWCA 17 …. 19.56, 19.57 — v Ibbett (2006) 229 CLR 638 …. 14.32 — v Lepore (2003) 212 CLR 511; [2003] HCA 4 …. 10.14, 10.15, 14.12, 14.16, 14.17, 14.18, 14.19, 14.20, 14.22, 14.41 — v McMaster [2015] NSWCA 228 …. 10.13 Newling and Mole, Marriage of (1987) 11 Fam LR 974; FLC ¶91-856 …. 16.29 Northridge v Central Sydney Area Health Service (2000) 50 NSWLR 549; [2000] NSWSC 1241 …. 18.10, 18.43, 18.48

O O’Hara, Re [1900] 2 IR 232 …. 18.44 O’Malley, Re [1981] Qd R 202 …. 20.33 O’Neill v Hayley (No 2) [2015] FCCA 2219 …. 9.66 Osman v United Kingdom (1998) 5 BHRC 293; 29 EHRR 245 …. 2.18 Oyston v St Patrick’s College [2011] NSWSC 269 …. 10.16, 12.32 — v — [2013] NSWCA 135 …. 10.16 — v — (No 2) [2013] NSWCA 310; [2013] Aust Torts Reports ¶82148 …. 10.16

P P v P (1994) 181 CLR 583; 17 Fam LR 457 …. 18.42, 18.43 P and P (1995) 19 Fam LR 1 …. 22.18 PAO v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWSC 1216 …. 14.9

Paton v British Pregnancy Advisory Service Trustees [1979] QB 276 …. 3.1, 3.2, 3.9, 3.11, 18.3 Patrick, Re (2002) 28 Fam LR 579; FLC ¶93-096 …. 15.5 Permanent Trustee Co of New South Wales v Ralfe (1940) 57 WN (NSW) 183 …. 3.8 Perre v Apand (1999) 198 CLR 180 …. 14.21, 14.22 Perry v Perry (1870) 18 WR 482 …. 20.22 Peter v Elspeth [2009] FamCA 551 …. 15.20 Pitts, Re [2005] NSWSC 887 …. 20.3 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1 …. 11.7 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 …. 11.5 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 29; 88 ALJR 690; [2014] HCA 22 …. 11.7 Portsmouth Hospitals NHS Trust v Wyatt [2005] 1 WLR 3995 …. 18.45

R R v AEM Snr [2002] NSWCCA 58 …. 8.24 — v ALH (Unreported, SC(NSW), Dunford J, No. 70106/94, 26 May 1995) …. 8.23 — v — (2003) 6 VR 276; [2003] VSCA 129 …. 7.8, 7.9, 7.10, 7.11, 7.21, 7.23, 7.28 — v B [1960] VR 407 …. 16.35 — v — (1979) 69 Cr App R 362 …. 7.16 — v Bayliss and Cullen (1986) Qld Lawyer Reps 8 …. 3.17 — v Brooks [1945] NZLR 584 …. 7.9 — v BWT (2002) 54 NSWLR 241 …. 21.21 — v Camberwell Green Youth Court; Ex parte D [2005] UKHL 4 …. 21.40 — v Camplin [1978] 1 All ER 1236 …. 7.4

— v CK [2004] NSWCCA 116 …. 8.24 — v Cotesworth (1704) 6 Mod 172; 87 ER 928 …. 14.11 — v Davidson [1969] VR 667 …. 3.17 — v GDP (1991) 53 A Crim R 112 …. 8.23 — v Gibbons and Proctor (1918) 13 Cr App R 134 …. 18.4, 18.48 — v Gorrie (1918) 83 JP 136 …. 7.8 — v GW [2015] NSWDC 52 …. 7.2, 7.17 — v Iby (2005) 63 NSWLR 278; [2005] NSWCCA 178 …. 3.2 — v Ipeelee [2012] 1 SCR 433 …. 13.36 — v Ireland; R v Burstow [1998] AC 147 …. 10.10 — v JA [2007] ACTSC 51 …. 7.8, 7.11, 7.14 — v Kapp [2008] 2 SCR 483 …. 13.36 — v King (2003) 59 NSWLR 472; [2003] NSWCCA 399 …. 3.19 — v Knight (1998) 35 A Crim R 31 …. 10.10 — v LMW [1999] NSWSC 1342 …. 7.14 — v M (1977) 16 SASR 589 …. 7.8, 7.17 — v MD [2005] NSWSC 344 …. 8.24 — v Sheldon [1996] 2 Cr App R 50 …. 7.15, 7.26 — v Smith (1845) 1 Cox CC 260 …. 7.10 — v Stanley (1903) 23 NZLR 378 …. 16.4 — v Stone and Dobinson [1977] QB 354 …. 18.4, 18.48 — v TA (2003) 57 NSWLR 444 …. 21.43 — v Taktak (1988) 14 NSWLR 226 …. 18.4, 18.48 — v Turpin [1989] 1 SCR 1296 …. 13.36 — v Vitoros (Unreported, CCA(NSW), 3 September 1993) …. 8.23 — v Wald (1971) 3 NSWDCR 25 …. 3.17 — v Wilkie (Unreported, CCA(NSW), 2 July 1992) …. 8.23 — v WKR (1993) 32 NSWLR 447 …. 8.23 — v XYJ (Unreported, CCA(NSW), Clarke JA, No. 60823/1991, 15 June 1992) …. 8.23 — v Young [1969] Qd R 417 …. 18.4, 18.48 R (a child) v Whitty (1993) 66 A Crim R 462 …. 7.8

R (a minor) (wardship: consent to treatment), Re [1991] 4 All ER 177; [1992] Fam 11 …. 18.20, 18.21, 18.25, 18.28, 18.29, 18.43 R (a minor) (wardship: consent to treatment), Re [1992] 1 FLR 190 …. 18.44 R and JW (unreported, SC(ACT), Burns J, ACTSC 7/2012) …. 8.23 R (Axon) v Secretary of State for Health [2006] EWHC 37 …. 18.14, 18.16 R Leslie Ltd v Sheill [1914] 3 KB 607 …. 19.16, 19.17 R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246; [2005] UKHL 15 …. 2.11 Rain v Fullerton (1900) 17 WN (NSW) 161 …. 19.13 Ramsay v Larsen (1964) 111 CLR 16 …. 12.30 Rance v Mid-Downs Health Authority [1991] 1 QB 135 …. 3.18 RCB as Litigation Guardian of EKV, CEV, CIV and LRV and the Hon Justice Colin Forrest [2012] HCA Trans 178 …. 22.12 Reynolds v Clarke (1726) 1 Str 634; 93 ER 747 …. 14.11 RH v DPP (NSW) [2013] NSWSC 520; [2014] NSWCA 305 …. 7.8, 7.10, 7.11, 7.13, 7.15, 7.18 Rice v Asplund (1979) FLC ¶90-725 …. 15.12 Richards v Victoria [1969] VR 136 …. 10.15, 12.31 Rixon v Star City Casino (2001) 53 NSWLR 98 …. 14.11 RJ v R (2010) 208 A Crim R 174 …. 21.14 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; 238 ALR 761; [2007] HCA 42 …. 14.23, 19.48, 19.51, 19.52, 19.53, 19.57 — Wales v Refrigerated Roadways Pty Ltd [2009] NSWCA 263 …. 14.29 Robertson v Swincer (1989) 52 SASR 356 …. 19.38 Roe v Wade 410 US 113 (1973) …. 17.42 Rogers v Whitaker (1992) 175 CLR 479; 109 ALR 625 …. 3.5, 18.9 Roper v Simmons 543 US 551 (2005) …. 7.5 Rotheram v Fanshaw (1748) 3 Atk 628; 26 ER 1161 …. 20.22 RP v R [2015] NSWCCA 215 …. 7.9, 7.11, 7.14, 7.15, 7.16, 7.19 Rubinovich v Emmett (1901) 27 VLR 265 …. PSc.6 Ruddock v Taylor (2005) 222 CLR 612 …. 14.11 Ryan v State Rail Authority of New South Wales [1999] NSWSC 1236 ….

19.35, 19.43, 19.46

S S, Re [1969] VR 490 …. 16.47 S, Re [1993] 2 FLR 437 …. 7.4 S v Corporation of the Synod of the Diocese of Brisbane [2001] QSC 473 …. 14.27 — v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC) …. 2.12, 2.14 — v R (1989) 168 CLR 266 …. 21.16 Sainsbury v Great Southern Energy Pty Ltd [2000] NSWSC 479 …. 19.35, 19.44, 19.45 Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 …. 14.6, 14.22 Sampson and Hartnett (No 10) (2007) FLC ¶93-350 …. 15.16 Sandbrook, Re [1912] 2 Ch 471 …. 20.17 SB v NSW (2004) 13 VR 527 …. 14.22 SC v United Kingdom (2004) 17 BHRC 607; [2004] ECHR 263 …. 2.12 Scarborough v Sturzaker (1905) 1 Tas LR 117 …. 19.8 Schloendorff v Society of New York Hospital 105 NE 92 (1914) …. 18.8 SDW v Church of Jesus Christ of Latter-Day Saints (2008) 222 FLR 84; [2008] NSWSC 1249 …. 14.6, 14.22 Scott v Shepherd (1773) 2 Wm Bl 892; 96 ER 525 …. 14.11 Secretary, Department of Human Services v Nancarrow [2004] VSC 450 …. 20.7 Secretary, Department of Human Services v Sanding (2011) 36 VR 221; [2011] VSC 42 …. 2.7 SH v R (2012) 83 NSWLR 258 …. 21.14 Shaw v Thomas [2010] NSWCA 169 …. 14.23 Shurey, Re [1918] 1 Ch 263 …. 20.2 Sibley v Perry (1802) 32 ER 211 …. 20.13 Sidaway v Board of Governors of the Bethlem Royal Hospital and Maudsley

Hospital [1985] AC 871; [1985] 1 All ER 643 …. 18.8 Skandinaviska Enskilda Banken AB (Publ), Singapore Branch v Asia Pacitif Breweries (Singapore) Pte Ltd [2011] SGCA 22 …. 14.19 Solomons v Pallier [2015] NSWCA 266 …. 19.39 Smith v Leurs [1944] SASR 213 …. 19.30 — v Leurs (1945) 70 CLR 256 …. 19.30 — v — [1945] SASR 86 …. 19.30 — v Thompson (1931) 47 TLR 603 …. 20.12 Smythe, Marriage of (1983) 8 Fam LR 1029 …. 15.11 Southern Portland Cement Ltd v Cooper [1974] AC 623 …. 19.43 Speirs v Gorman [1966] NZLR 897 …. 19.41, 19.42 St George, Re; Perpetual Trustee Co Ltd v St George (1963) 80 WN (NSW) 1423; [1964] NSWR 587 …. 20.17 St George’s Healthcare NHS Trust v S [1998] 3 All ER 673; [1998] 3 WLR 936 …. 3.1, 18.8, 18.9 Starkey v DPP [2013] QDC 124 …. PSc.3 Steinberg v Scala (Leeds) Ltd [1923] 2 Ch 452 …. 19.13 Stevens v Brodribb Sawmilling (1986) 160 CLR 16 …. 14.14 Streller v Albury City Council [2012] NSWSC 729 …. 19.53 Strong v Woolworths Ltd (2012) 285 ALR 420 …. 14.26 Sullivan v Moody (2001) 207 CLR 562; 28 Fam LR 104 …. 9.32, 14.21, 14.22 Swain v Waverley Municipal Council (2005) 220 CLR 517 …. 12.31

T T v United Kingdom (1999) 7 BHRC 659; [1999] ECHR 170 …. 2.12, 7.23, 22.40 T (a minor) (wardship: medical treatment), Re 1997] All ER 906 …. 18.35 T (Adult: Refusal of Treatment), Re [1993] Fam 95 …. 18.8, 18.9 T and the Director of Youth and Community Services, Re [1980] 1 NSWLR 392 …. 16.20 Talbot v Norman (2012) 275 FLR 484; [2012] FamCA 96…. 3.9, 18.3

Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317 …. 14.30 Tasmania v B (unreported, SC(Tas), Porter J, 2012) …. 8.23 — v BMC and CGH (unreported, SC(Tas), 2014) …. 8.23 TC v New South Wales [1999] NSWSC 31 …. 14.22 Teenager, Re a (1988) 13 Fam LR 85 …. 18.46 Tegg, Re; Public Trustee v Bryant [1936] 2 All ER 878 …. 20.17 Thake v Maurice [1986] QB 644 …. 18.5 Thompson v Municipality of Bankstown (1952) 87 CLR 619 …. 19.43 Thurston v Nottingham Permanent Benefit Building Society [1901] 1 Ch 88 …. 19.18 Tinker v Des Moines Independent Community School District 393 US 503 (1969) …. 2.3 Traynor v Australian Capital Territory [2007] ACTSC 38 …. 19.35 Tremblay v Daigle [1989] 2 SCR 530 …. 3.1 Trotman v North Yorkshire County Council [1999] LGR 584 …. 14.19 — v Johnston [1970] VR 587 …. 20.14 — v Sleeman (1899) 25 VLR 187 …. 3.8 Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis [2007] NSWCA 117 …. 14.6, 14.9, 14.15 — v Kondrajian [2001] NSWCA 308 …. 12.31 Trustees of the Roman Catholic Church for the Diocese of Bathurst v Koffman (1996) Aust Torts Reports ¶81-399 …. 10.17, 14.22 — v — (1996) NSWSC 346 …. 12.31 Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba (2005) 221 CLR 161; [2005] HCA 31…. 10.14, 12.31

U U v U (2002) 211 CLR 238; 29 Fam LR 74 …. 15.16 Unborn Child, Re an [2003] 1 NZLR 115 …. 3.12, 3.13, 3.14 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 …. 10.13, 14.10,

14.32

V V v G [1980] 2 NSWLR 366 …. 3.8 — v United Kingdom (1999) 30 EHRR 121; [1999] ECHR 171 …. 2.12, 7.23, 22.40 Various Claimants v Catholic Child Welfare [2013] 2 AC 1 …. 14.19, 14.39 Veivers v Connolly [1995] 2 Qd R 326 …. 3.17 Venning v Chin (1974) 10 SASR 299 …. 14.11 Villar v Gilbey [1907] AC 139 …. 3.8

W W, Re [2004] FamCA 768 …. 9.66 W v R (2006) 35 Fam LR 608 …. 18.46 — v W [2005] FamCA 892 …. 9.66 W (a minor) (consent to medical treatment), Re [1993] 1 FLR 1 …. 18.44 W (a Minor) (Medical Treatment: Court’s Jurisdiction), Re [1992] 4 All ER 627; [1993] Fam 64 …. 18.8, 18.17, 18.25, 18.28, 18.29 Wallace v Kam (2013) 250 CLR 375 …. 14.26 Waller v James; Waller v Hoolahan (2006) 226 CLR 136; 226 ALR 457; [2006] HCA 16 …. 3.5 Wallis v Hodson (1724) 2 Atk 117; 26 ER 472 …. 3.8 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 …. 14.5 Warren, Estate of [2001] NSWSC 104 …. 20.14 Watt v Rama [1972] VR 353 …. 3.3 Welch, Re (1854) 23 LJ Ch 344 …. 20.22 West Australian Newspapers Ltd v Bond (2009) 40 WAR 164; [2009] WASCA 127 …. 10.29 Whelan v R [2012]NSWCCA 147 …. 3.16 Whitfield v De Lauret & Co Ltd (1920) 20 CLR 71 …. 14.32 Wicks v State Rail Authority of NSW; Sheehan v State Rail Authority of NSW

(2010) 241 CLR 60 …. 14.30 Wiech v Amato (1973) 6 SASR 442 …. 19.34, 19.41 Wilkinson v Downton [1897] 2 QB 57 …. 14.11 Willett v Victoria [2013] VSCA 76 …. 10.11, 10.16 Williams v Milotin (1957) 97 CLR 465 …. 14.11 Wilson v Ferguson [2015] WASC 15 …. 10.29 Winnipeg Child & Family Services (Northwest Area) v G (1997) 152 DLR (4th) 193; [1997] 3 SCR 925 …. 3.11, 3.26, 18.3 Withyman v New South Wales [2013] NSWCA 10 …. 14.18 Woodland v Essex CC [2013] UKSC 66; [2014] AC 537 …. 14.20 Woolley, Re; Ex parte Applicants M276/2003 (2004) 225 CLR 1; 210 ALR 369; [2004] HCA 49 …. 2.9, 11.7 Woolmington v DPP [1935] AC 462 …. PSc.3 Wyong Shire Council v Shirt (1980) 146 CLR 40 …. 14.23, 14.24, 14.39

X X, In the Adoption of (1994) 17 Fam LR 594 …. 16.29 X v Sydney Children’s Hospitals Network (2013) 85 NSWLR 294 …. 18.26, 18.28, 18.29 — v University of Western Sydney [2014] NSWSC 82 …. 12.28 X (a minor), Re [1975] 1 All ER 697 …. 18.44 X and Y v Pal (1991) 23 NSWLR 26 …. 3.4, 18.3 X and Y (Foreign Surrogacy), Re [2008] EWHC 3030 …. 17.5, 17.34

Y Yunghanns v Candoora No 19 Pty Ltd [1999] VSC 524 …. 3.6, 3.9

Z Z v United Kingdom (2001) 10 BHRC 384; [2001] ECHR 333 ….. 2.18 ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166; [2011] UKSC 4 …. 2.29

Zorom Enterprises Pty Ltd v Zabow [2007] NSWCA 106 …. 14.28, 14.31, 14.32 Zuijs v Wirth Bros (1955) 93 CLR 561 …. 14.14

Table of Statutes References are to paragraph numbers

Commonwealth Aboriginal Land Rights (Northern Territory) Act 1976 …. 13.27 Anti-Terrorism Act (No. 2) 2005 …. 1.1 Appropriation (Northern Territory National Emergency Response) Act (No 1) 2007–2008 …. 13.25 Appropriation (Northern Territory National Emergency Response) Act (No 2) 2007–2008 …. 13.25 Australian Citizenship Act 1958 …. 11.11 s 10(2) …. 11.9 Australian Citizenship Act 2007 …. 11.8, 11.11, 11.13, 16.63, 17.31 s 8 …. 17.30 s 12 …. 11.9 s 12(1)(b) …. 11.9 s 12(4) …. 11.9 s 12(7) …. 11.9 s 21(5) …. 11.11 s 21(8) …. 11.10 s 36(1) …. 11.12 s 36(3) …. 11.12 Australian Citizenship Amendment Act 1986 …. 11.9 Australian Citizenship and Other Legislation Amendment Act 2014 ….

11.11 Australian Disability Standards for Education 2005 …. 12.23 s 3.4 …. 12.23 s 3.4(2) …. 12.23 s 10.2 …. 12.23 Australian Human Rights Commission Act 1986 …. 2.7, 12.22 s 46MB …. 2.7 Australian Human Rights Commission Regulations 1989 reg 4(a)(iii) …. PSc.1 Australian Postal Corporation Act 1989 …. 10.26 Child Support (Assessment) Act 1989 …. 15.22 Pt 5 …. 15.23 Pt 6 …. 15.7 Pt 6 Div 2 …. 15.22 s 117 …. 15.23 Child Support (Registration and Collection) Act 1988 …. 15.22 Commonwealth Electoral Act 1913 s 93 …. 11.8 Competition and Consumer Act 2010 s 87ZB …. 14.32 Constitution …. 2.9, 9.18, 11.7, 15.1 Ch III …. 11.7 s 51(xxix) …. 7.21, 10.20 Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 …. 10.21 Criminal Code Act 1995 …. 10.20, 10.21, 10.23, 15.21, PSc.2, PSc.3 Div 104 …. 1.1 s 7.2 …. 7.8 s 270.7B …. 15.21

s 273.2A …. 10.21 s 273.5 …. 10.20, PSc.2 s 273.6 …. 10.20 s 414.17 …. PSc.3 s 473.1 …. 10.20 s 474.15 …. 10.10 s 474.17 …. 10.10, PSc.2 s 474.19 …. 10.20 ss 474.19–20 …. PSc.2 s 474.19(1) …. PSc.2 s 474.20 …. 10.20 s 474.22 …. 10.20 s 474.23 …. 10.20 s 474.24C …. 10.21 Disability Discrimination Act 1992 …. 12.22 s 5 …. 12.23 s 22 …. 12.23 s 29(A) …. 12.23 s 31 …. 12.23 s 32 …. 12.23 Enhancing Online Safety for Children Act 2015 …. 10.7 s 5 …. 10.8 s 22 …. 10.8 s 42 …. 10.9 Fair Work Act 2009 …. 19.12 Pt 6-4B …. 10.11 Family Law Act 1975 …. 2.7, 2.22, 6.7, 9.14, 9.18, 9.34, 9.59, 9.60, 11.7, 15.1, 15.3, 15.5, 15.6, 15.7, 15.9, 15.10, 15.11, 15.16, 15.18, 15.22, 16.25, 16.29,

16.30, 16.56, 17.29, 17.34, 18.32, 18.37, 20.19, 20.33, 22.16, 22.17, 22.18, 22.20, 22.22, 22.23, 22.27 Pt VII …. 6.7, 15.6, 15.7, 15.8, 15.9, 15.13, 18.33 Pt VII Div 1 Subdiv BA …. 2.22 Pt VII Div 4 …. 15.7 Pt VII Div 12 Subdiv D …. 15.4 Pt VII Div 12 Subdiv D ss 69P–69U …. 17.29 Pt VII Div 12 Subdiv E …. 15.4 Pt VII Div 12 Subdiv E ss 69V–69ZD …. 17.29 Pt VII Div 12A …. 22.24 Div 7 …. 9.59 s 4 …. 9.60, 16.29 s 13C …. 15.7 s 60B(1) …. 15.6, 18.33, 18.35 s 60B(1)(a) …. 9.63 s 60B(1)(b) …. 9.63 s 60B(2) …. 15.6, 15.7 s 60B(4) …. 2.7, 22.20 s 60CA …. 6.7, 9.64, 15.9, 16.10, 18.44, 22.20 s 60CC …. 6.7, 9.65, 16.10, 18.45 s 60CC(2) …. 2.22, 9.65, 15.9, 22.20 s 60CC(2)(a) …. 9.65 s 60CC(2)(b) …. 9.65 s 60CC(2A) …. 9.65, 15.10, 15.19 s 60CC(3) …. 9.65, 15.9 s 60CC(3)(a) …. 6.7, 22.20 s 60CC(3)(d) …. 15.12 s 60CC(3)(g) …. 15.11

s 60CC(3)(h) …. 15.11 s 60CC(6) …. 15.11 s 60CD …. 2.24 s 60CG …. 9.65 s 60G …. 16.29 s 60H …. 15.5, 17.29, 18.32 s 60H(1) …. 15.5, 16.34 s 60H(1)(d) …. 15.5 s 60HB …. 17.29 s 60I(9) …. 9.62 s 61B …. 15.6, 18.32, 18.35 s 61C …. 15.3, 15.6, 16.34, 18.29 s 61D …. 18.37, 18.42 s 61DA …. 2.22 s 61DA(1) …. 9.65 s 61DA(2) …. 9.62, 9.65, 15.13 s 61E(2) …. 16.29 s 63C(6) …. 18.37 s 63F …. 18.37 s 63F(1) …. 16.34 s 64B(2)(a) …. 9.64 s 64B(2)(b) …. 9.64 s 64B(2)(e) …. 9.64 s 64B(2)(i) …. 9.64 s 64D …. 15.7, 15.12 s 65AA …. 9.64, 16.10, 18.44 s 65C …. 9.64 s 65D(1) …. 9.64

s 65DAA …. 15.14, 15.14 s 65DAC …. 15.13 s 65H …. 15.3 s 66C …. 15.6, 15.22 s 66D …. 20.33 s 66L …. 15.3 s 66M …. 15.5, 20.33 s 66X …. 15.3 s 67B …. 15.3 s 67Z(3) …. 9.34 s 67ZA …. 9.32, 9.60 s 67ZA(2) …. 9.34 s 67ZC …. 11.7, 18.44 s 67ZC(1) …. 18.42 s 68L …. 22.17 s 68L(5) …. 22.13 s 68LA …. 22.18 s 68LA(2) …. 22.18 s 68LA(4) …. 22.16, 22.18 s 68LA(5)(b) …. 22.13, 22.19, 22.22 s 68LA(5)(d) …. 22.23 s 68LA(8) …. 22.19 s 69H …. 22.17 s 69Y(1) …. 15.4 s 69Y(2) …. 15.4 s 69ZC(1) …. 15.4 s 69ZK …. 9.18, 9.59, 16.34

s 111C …. 16.56 s 114(1) …. 16.28 Sch 2 …. 16.58 Family Law Amendment Act 2003 …. 18.37 Family Law Amendment (Shared Parental Responsibility) Act 2006 Sch 5 …. 22.17 Family Law (Hague Convention on Intercountry Adoption) Regulations 1998 …. 16.56 regs 5–11 …. 16.56 regs 6–9 …. 16.59 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 …. 9.60 Sch 1 cl 13 …. 2.7 Family Law Reform Act 1995 …. 15.8, 16.34 Family Law Rules 2004 …. 22.19 Ch 10 Pt 10.4 …. 15.7 r 5.03 …. 15.7 r 6.08(2) …. 22.19 Sch 1 …. 15.7 Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern Territory National Emergency Response and Other Measures) Act 2007 …. 13.25 Human Rights and Equal Opportunity Act 1986 …. 1.44 Human Rights (Parliamentary Scrutiny) Act 2011 …. 2.7 s 7 …. 2.7 s 8 …. 2.7 s 32(1) …. 2.7 s 32(2) …. 2.7 s 40C …. 2.7

Immigration and Guardianship of Children Act 1946 …. 11.5, 16.62 s 6A(1) …. 11.5 Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 …. 11.6 Marriage Act 1961 s 11 …. 15.21 s 12 …. 15.21 s 12(2)(b) …. 20.8 s 88D(3) …. 20.9 Migration Act 1958 …. 11.5, 11.6, 11.7 s 4AA …. 11.7 s 5CA …. 11.2 s 48B …. 11.4 s 48B(1AA) …. 11.4 s 86 …. 11.3 s 198(1) …. 11.7 s 198A …. 11.5 s 417 …. 11.10 Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 …. 11.5 Migration Regulations 1994 …. 11.6 reg 1.03 …. 11.2 reg 1.12(1) …. 11.2 reg 1.14A …. 11.2 reg 2.08A …. 11.3 reg 2.20(12) …. 11.10 Sch 2 …. 11.10 Sch 2 cl 103.211 …. 11.3 Migration Regulations (Amendment) 1990 reg 21 …. 11.6

Migration Regulations (Amendment) 1991 reg 9 …. 11.6 National Consumer Credit Protection Act 2009 …. 19.19 National Consumer Credit Protection Regulations 2010 Sch 1 s 24 …. 19.19 Northern Territory National Emergency Response Act 2007 …. 13.1, 13.25 Patents Act 1990 …. 3.22, 3.23, 3.25 s 18(1) …. 3.21 s 18(2) …. 3.21, 3.22, 3.23, 3.24, 3.25 Privacy Act 1988 …. 10.26, 10.27, 10.30, 18.6, PSc.3 Pt V …. 10.27 s 52 …. 10.27 Sch 1 …. 10.27 Prohibition of Human Cloning Act 2002 …. 3.21, 3.24 s 8 …. 3.26 Racial Discrimination Act 1975 …. 12.22, 13.26 Research Involving Human Embryos Act 2002 …. 3.21, 3.24 Sex Discrimination Act 1984 …. 12.22 Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 …. 13.25 Telecommunications (Interception and Access) Acts 1997 …. 10.26

Australian Capital Territory Administration and Probate Act 1929 Pt 3A Divs 1–3 …. 20.24 Pt 3A Div 3 …. 20.27 s 12(2) …. 20.20 s 21(1) …. 20.20 s 21(1)(b) …. 20.20 s 21(2) …. 20.20

s 30 …. 20.20 s 44(1) …. 20.27 s 49A …. 20.27 s 49B …. 20.28 s 49BA …. 20.30 Sch 6 Pt 1 item 1 …. 20.26 Sch 6 Pt 1 item 2 …. 20.27 Sch 6 Pt 1 item 3 …. 20.27 Sch 6 Pt 2 item 1 …. 20.28 Sch 6 Pt 2 item 4 …. 20.29 Adoption Act 1993 …. 16.7 Pt 5 Div 5.3 …. 16.53 s 5 …. 16.10 s 9 …. 16.8, 16.9, 16.12 s 10 …. 16.12 s 13 …. 16.9 s 14 …. 16.18 s 15(1)(b) …. 16.20 s 16 …. 16.18 s 17(b)(i) …. 16.30 s 18 …. 16.27 s 22 …. 16.19 s 27(2) …. 16.33 s 29(2) …. 16.37 s 30 …. 16.37 s 31 …. 16.43 s 34(1) …. 16.43 s 34(3) …. 16.35

s 35(1)(a) …. 16.41 s 35(1)(b) …. 16.41 s 35(1)(c) …. 16.41 s 35(1)(d) …. 16.41 s 35(1)(e) …. 16.41 s 39(1)(b) …. 16.19 s 39F …. 16.20 s 39F(1)(c)(A) …. 16.19 s 39F(2) …. 16.38, 16.39 s 39L …. 16.45, 16.46 s 39L(3) …. 16.46 s 39L(7) …. 16.49 s 39L(8) …. 16.49 s 39L(9) …. 16.49 s 43 …. 16.5, 20.13 s 44 …. 20.13 s 47 …. 20.13 s 48 …. 20.13 s 63 …. 16.51 ss 66–68 …. 16.51 s 67(1)(c) …. 16.41 s 67(2) …. 16.41 s 70 …. 16.53 s 70(2) …. 16.53 s 70(3) …. 16.53 s 71(2) …. 16.53 s 72 …. 16.53 s 73 …. 16.53

s 77 …. 16.52 s 78 …. 16.52 s 79 …. 16.53 s 80 …. 16.52 ss 94–96 …. 16.11 s 95 …. 16.11 s 95(1) …. 16.11 s 103A …. 16.22 s 107 …. 16.40 s 108A …. 16.16 Adoption Amendment Act 2009 …. 16.53 Adoption of Children Ordinance 1965 …. 16.7 Adoption Regulations 1993 …. 16.7 Pt 6 …. 16.11 reg 11 …. 16.11 Age of Majority Act 1974 s 5 …. 18.3, 19.5, 20.2 s 6(2) …. 20.2 Children and Young People Act 1999 s 71(1) …. 7.6 s 373 …. 19.12 Children and Young People Act 2008 …. 8.3, 9.21, 13.1, 22.26, 22.37 s 7 …. 9.21 s 7(e)(ii) …. 22.25 s 342 …. 12.13 s 342(a) …. 9.27 s 342(b) …. 9.27 s 342(c) …. 9.27, 9.36

s 342(d) …. 9.27, 9.29 s 343 …. 9.27, 9.36 s 352 …. 22.25, 22.26 s 354 …. 9.30 s 356 …. 12.13, 9.34, 9.35, 9.36, 18.4 ss 356–358 …. 9.32 s 356(1)(c) …. 9.38 s 700 …. 22.26 s 857 …. 9.30 s 874 …. 9.30 Children and Young Persons (Care and Protection) Act 1998 …. 22.27, 22.33 s 9(b) …. 22.27 s 10 …. 22.25, 22.27, 22.28 s 10(2) …. 22.27 s 10(3) …. 22.27 s 98 …. 22.27 s 99B …. 22.27 s 99C …. 22.27 s 99D …. 22.27 Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2006 …. 22.27 Children (Criminal Proceedings) Act 1987 …. 22.36 s 6(a) …. 22.37 s 12 …. 22.37 Civil Law (Wrongs) Act 2002 …. 14.28, 14.31 Ch 8 …. 14.29 Pt 3.2 …. 14.30

s 34 …. 14.30 s 34(1) …. 14.30 s 35 …. 14.30 s 43 …. 12.30, 14.23, 14.24 s 43(2) …. 12.30 s 45 …. 14.26 s 47 …. 19.39 s 93 …. 14.31 s 109 …. 14.29 s 110 …. 14.29 Civil Unions Act 2012 s 7 …. 20.8 s 21(a) …. 20.8 Crimes Act 1900 s 42 ….. 3.18 Crimes (Restorative Justice) Act 2004 …. 8.3 Criminal Code 2002 s 25 …. 7.6 s 26 …. 7.8 s 26(3) …. 7.8 Court Procedures Act 2004 Pt 7A …. 22.37 s 74A …. 22.26 s 74E(1) …. 22.26 s 74E(2) …. 22.26 s 74E(3) …. 22.26 s 74G …. 22.26 Court Procedures Rules 2006

r 275(1) …. 20.36 Credit Act 1984 s 140(1) …. 19.19 s 140(2) …. 19.19 Crimes Act 1900 s 39 …. 18.4 Criminal Code 2002 s 26 …. 22.35 Discrimination Act 1991 …. 12.22 Education Act 2004 s 7(4) …. 12.24 s 9 …. 12.21 s 10 …. 12.21 s 10A …. 12.21 s 17A …. 12.21 s 36 …. 12.29 s 38(1) …. 12.27 Education and Care Services National Law Act 2011 …. 12.6 Evidence (Miscellaneous Provisions) Act 1991 s 69 …. 21.20 Family Provision Act 1969 …. 20.31 s 7(1)(c) …. 20.32 s 7(1)(d) …. 20.33 s 7(1)(e) …. 20.34 s 7(2) …. 20.33 s 7(3) …. 20.34 s 7(8) …. 20.32 Guardianship and Management of Property Act 1991 …. 18.10 Human Rights Act 2004 …. 1.46, 2.7, 8.12

s 11 …. 2.7 s 19 …. 2.7 s 20 …. 2.7, 8.12 s 21(3) …. 2.7 s 22(3) …. 2.7 s 31(1) …. 2.7 Legislation Act 2001 s 169 …. 16.18 Limitation Act 1985 s 16B …. 14.5 s 36 …. 14.5 Medical Practitioners (Maternal Health) Amendment Act 2002 …. 3.17 Parentage Act 2004 …. 16.33, 17.22, 17.23 s 23 …. 17.23 s 24 …. 17.23 s 24(c) …. 17.30 s 26(1) …. 17.23 s 26(1)(b) …. 17.23 s 26(3) …. 17.23 s 26(4) …. 17.23 s 38 …. 20.13 s 39 …. 20.13 s 40 …. 17.22, 17.23 s 41 …. 17.23 s 42 …. 17.22 s 43 …. 17.22 Perpetuities and Accumulations Act 1985 s 8 …. 20.15

Sale of Goods Act 1954 s 7 …. 18.5, 19.18 Substitute Parents (Agreements) Act 1994 …. 17.22 Testamentary Guardianship Act 1984 ss 4–7 …. 20.18 Transplantation and Anatomy Act 1978 s 23 …. 18.30, 18.39 Trustee Act 1925 …. 20.21 s 43 …. 20.22 s 44(1) …. 20.23 s 44(4) …. 20.23 Public Heath Regulation 2000 reg 8 …. 12.14 Victims of Crime Assistance Act 2006 …. 14.10 Wills Act 1968 s 8 …. 20.2 s 8(2) …. 20.8 s 8(3) …. 20.8 s 8(4) …. 20.3 s 8(5) …. 20.4 s 8A …. 20.3 s 8A(2)(c) …. 20.4 s 8B …. 20.4 s 14 …. 20.12 s 16 …. 20.10 s 16A(4) …. 20.6 s 31 …. 20.15 s 31(1)(a) …. 20.16

s 31(3) …. 20.16 s 31(4) …. 20.16 s 31(5) …. 20.16 s 31A …. 20.13 s 31B(1)(b) …. 20.16 s 31B(2) …. 20.16 Working With Vulnerable People (Background Checking) Act 2011 …. 9.54

New South Wales Adoption Act 2000 …. 16.7 Ch 3 …. 16.11 Ch 4 Pt 4 ss 46–51 …. 16.6 Ch 8 Pt 3 ss 144–153 …. 16.52 Ch 8 Pt 4 …. 16.53 Ch 8 Pt 5 …. 16.52 s 6 …. 16.14 s 7 …. 16.10 s 7(g) …. 16.6 s 8 …. 16.10 s 8(2) …. 16.10 s 9 …. 16.10 s 11 …. 16.11 s 11(1)(b) …. 16.11 s 12(1)(b) …. 16.12 s 12(2) …. 16.12 s 23 …. 16.8, 16.9

s 24(1)(a) …. 16.12 s 24(1)(b) …. 16.12 s 24(2) …. 16.12 s 27 …. 16.18, 16.19 s 27(3) …. 16.18 s 28 …. 16.18, 16.19, 16.26 s 28(2) …. 16.27 s 29 …. 16.30 s 30 …. 16.26, 16.27 ss 32–39 …. 16.14 s 35(2) …. 16.14 s 35(3) …. 16.14 s 39 …. 16.14 s 52(a) …. 16.33 s 52(b) …. 16.33 s 53(1)(a) …. 16.37 s 54(2) …. 16.38 s 55(1) …. 16.38 s 56 …. 16.33 s 58(2) …. 16.43 s 60 …. 16.35 s 61 …. 16.37 s 62 …. 16.37 s 63 …. 16.36 s 67(1)(a) …. 16.41 s 67(1)(b) …. 16.41, 16.44 s 67(1)(c) …. 16.41, 16.44 s 73(2) …. 16.43

s 90(1)(a) …. 16.44 s 90(1)(b) …. 16.44 s 90(1)(c) …. 16.44 s 90(1)(d) …. 16.44 s 90(1)(e) …. 16.44 s 91 …. 16.20 s 93(1)–(3) …. 16.45 s 93(4) …. 16.46 s 93(5)(a) …. 16.46 s 93(6) …. 16.49 s 93(7) …. 16.49 s 93(8) …. 16.49 s 95 …. 16.5 ss 95–100 …. 20.13 s 97 …. 16.5 s 108 …. 16.59 s 109 …. 16.59 s 110 …. 16.59 s 111 …. 16.59 s 112 …. 16.59 s 122(2) …. 16.40 ss 127–129 …. 16.39 s 134 …. 16.51 s 134(2) …. 16.59 s 154 …. 16.53 s 155 …. 16.53 s 157 …. 16.53

s 160 …. 16.53 s 164 …. 16.53 s 166 …. 16.52 ss 177–179 …. 16.11 s 177(1) …. 16.64 s 177(2) …. 16.64 s 177(3) …. 16.64 s 177(4) …. 16.64 s 188 …. 16.53 ss 189–193 …. 16.22 s 201 …. 16.16 Adoption Information Act 1990 s 155 …. 16.53 Adoption of Children Act 1965 s 73(1)(f1) …. 16.52 Adoption of Children Amendment Act 1980 …. 16.52 Adoption Regulation 2003 …. 16.7 Adoption Regulation 2015 Pt 2 …. 16.11 cl 48 …. 16.20 cl 62 …. 16.20 Anglican Church of Australia Trust Property Act 1917 …. 14.9 Anti-Discrimination Act 1977 …. 12.22 Apprenticeship and Traineeship Act 2001 s 32 …. 19.12 Assisted Reproductive Technology Act 2007 s 41B …. 17.9 Assisted Reproductive Technology Regulation 2014 cl 17A …. 17.9

Child Protection (Working with Children) Act 2012 …. 9.54 s 27 …. 9.56 Child Welfare Act 1923 …. 16.3 Children and Young Persons (Care and Protection) Act 1998 …. 3.15, 9.21, 9.36, 9.53, 9.56, 13.1, 13.20 Ch 16A …. 9.53 s 8 …. 9.21 s 11 …. 13.22 s 12 …. 13.23 s 13 …. 13.17 s 18(1) …. 9.56 s 18(2) …. 9.56 s 18(3) …. 9.56 s 23 …. 9.26, 9.32, 9.35, 12.13, 18.4 s 23(1)(a) …. 9.27, 9.36 s 23(1)(b) …. 9.36 s 23(1)(c) …. 9.27, 9.36 s 23(1)(d) …. 9.27, 9.29 s 23(1)(e) …. 9.27, 9.36 s 23(1)(f) …. 9.27, 9.29 s 24 …. 3.14, 9.30, 12.13 s 25 …. 3.14, 9.27 s 27 …. 9.32, 9.34, 9.35, 9.36, 12.13, 18.4 s 29 …. 9.30 s 30 …. 9.26 s 34(1) …. 9.26 s 99B …. 16.38 s 175 …. 18.31, 18.39

s 221 …. 19.12 s 223 …. 19.12 s 245A(2)(d) …. 9.53 s 245G …. 9.53 Sch 1 …. 9.53, 9.56 Sch 2 …. 9.56 Children and Young Persons (Care and Protection) (Child Employment) Regulation 2015 …. 19.12 Children and Young Persons (Care and Protection) Regulation 2000 reg 15 …. 18.31, 18.39 Children (Community Service Orders) Act 1987 …. 8.3 Children (Criminal Proceedings) Act 1987 …. 8.3 s 15(3)(c) …. 8.18 s 33 …. 8.19 Children (Detention Centres) Act 1987 …. 8.3 Children (Education and Care Services National Law Application) Act 2010 …. 12.6, 12.18, 12.19 Children (Interstate Transfer of Offenders) Act 1988 …. 8.3 Children Legislation Amendment (Wood Recommendations) Act 2009 …. 9.36 Sch 1.1 …. 9.39 Children (Protection and Parental Responsibility) Act 1997 …. 8.3 Children’s Court Act 1987 …. 8.3 Christian Israelite Church Property Trust Act 2007 …. 14.9 Civil Liability Act 2002 …. 14.28 Pt 2 …. 14.31 Pt 3 …. 14.30 Pt 5 …. 14.29 s 3B(1) …. 14.32

s 3B(1)(a) …. 14.28, 14.31 s 5B …. 12.30, 14.23, 14.24 s 5B(2) …. 12.30 s 5D …. 14.26 s 21 …. 14.32 s 31 …. 14.30 s 32 …. 14.30 s 41 …. 14.29 s 42 …. 14.29 s 71 …. 3.5 Civil Liability Regulation 2014 …. 14.29 Civil Procedure Act 2005 s 3 …. 14.2 s 67 …. 14.7 Credit Act 1984 s 140(1) …. 19.19 s 140(2) …. 19.19 Crimes Act 1900 …. 3.19, 10.10 s 4 …. 3.19 s 20 …. 3.19 s 33 …. 3.19 s 43A …. 18.4 s 44 …. 18.4 s 52A …. 3.16 s 60E …. 10.10 s 61AA …. 5.5 s 61O(1) …. 10.22 s 66EA …. 21.16

s 66EA(1) …. 21.16 ss 82–84 …. 3.17 s 83 …. 3.19 s 91H …. PSc.2 s 249K …. PSc.2 s 578C …. PSc.2 Crimes (Forensic Procedures) Act 2000 s 5 …. 8.5 s 111 …. 8.5 Criminal Code s 29 …. 7.2 Criminal Procedure Act 1986 …. 21.43 Pt 6 …. 21.40 s 294AA …. 21.20 Sch 1 cl 84 …. 21.43 Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 …. 21.43 Destitute Children (Industrial Schools Act) 1866 …. 9.7 Education Act 1871 …. 1.22 Education Act 1990 s 3 …. 12.26 s 4 …. 12.22 ss 21B–22 …. 12.21 s 23 …. 12.21 s 35(2A) …. 12.24 s 35(3) …. 12.29 s 47 …. 12.24, 12.28 s 47(h) …. 12.24 s 72 …. 12.21

s 73 …. 12.21 Education and Care Services National Regulations 2012 …. 12.6, 12.10, 12.11, 12.12, 12.18 reg 10 …. 12.8 reg 75 …. 12.10 reg 77 …. 12.12 reg 81 …. 12.12 reg 84 …. 12.12 reg 88 …. 12.14 regs 103–115 …. 12.11 regs 121–123 …. 12.9 reg 137 …. 12.8 Evidence Act 1995 …. 21.23, 21.43 s 13 …. 21.12, 21.14 s 13(3) …. 21.14 s 13(5) …. 21.14 s 13(5)(a)–(c) …. 21.14 s 41 …. 21.43 s 165B …. 21.21 Evidence (Children) Act 1997 …. 21.40 Guardianship Act 1987 …. 18.10 s 33 …. 18.31, 18.39 Guardianship of Infants Act 1916 s 13 …. 20.18 s 14 …. 20.18 s 15 …. 20.18 s 16 …. 20.18 Guardianship Regulation 2005

reg 8 …. 18.31, 18.39 Interpretation Act 1987 s 21 …. 20.2 Juvenile Reformatories Act 1866 …. 9.7 Law Enforcement (Powers and Responsibilities) Act 2002 s 136 …. 8.5 Law Reform (Miscellaneous Provisions) Act 1965 s 9 …. 19.39 Limitation Act 1969 …. 14.5 s 6A …. 14.7 s 11(1) …. 14.5 s 14B …. PSc.2 s 50E …. 14.5 s 50F …. 14.5 s 62A …. 14.5 s 62B …. 14.5 Limitation Amendment (Child Abuse) Act 2016 …. 14.7 Sch 1[2] …. 14.7 Medical Practitioners Act 1938 …. 18.48 Minors (Property and Contracts) Act 1970 …. 18.5, 19.4, 19.12, 19.20, 19.22, 19.26, 19.27 Pt 3 …. 19.21 s 6 …. 19.5, 19.20, 19.22 s 6(1) …. 20.14 s 9 …. 18.3 ss 16–39 …. 19.21 s 17 …. 19.21 s 18 …. 19.21 s 19 …. 19.20, 19.21, 20.14

s 20 …. 19.22 s 21 …. 19.22 s 23 …. 19.22 s 26 …. 19.22 s 27 …. 19.22 s 27(5)(a) …. 19.22 s 27(5)(b) …. 19.22 s 28 …. 19.22, 20.11 s 29 …. 19.22, 20.11 s 30(1) …. 19.23 s 30(2) …. 19.23 s 30(3) …. 19.23 s 30(4) …. 19.23 s 30(5) …. 19.23 s 31(1) …. 19.24 s 31(2) …. 19.24 s 33 …. 19.24 s 37 …. 19.25 s 37(1)(a) …. 19.27 s 37(2) …. 19.27 s 37(3) …. 19.25 s 37(4)(a) …. 19.25 s 37(4)(b) …. 19.25 s 37(4)(c) …. 19.25 s 38 …. 19.24 s 47 …. 19.19 s 48 …. 19.17, 19.26 s 49(2) …. 18.12

Motor Accidents Compensation Act 1999 s 144 …. 14.32 Neglected Children and Juvenile Offenders Act 1905 …. 9.12 Perpetuities Act 1984 s 7 …. 20.15 Probate and Administration Act 1898 s 63 …. 20.20 s 70 …. 20.20 s 70(b) …. 20.20 s 71 …. 20.20 Public Health Act 2010 s 85 …. 12.14 s 87 …. 12.14 Ombudsman Act 1974 s 25A …. 9.43 Parentage Act 2004 …. 17.22 Roman Catholic Church Trust Property Act 1936 …. 14.9 Sale of Goods Act 1923 s 7 …. 18.5, 19.18 Status of Children Act 1996 …. 16.33 s 8 …. 20.13 s 14(1) …. 20.13 s 14(2) …. 20.13 Succession Act 2006 Ch 4 …. 20.24 Pt 3.2 …. 20.31 s 5(1) …. 20.2 s 5(2)(a) …. 20.8 s 5(2)(b) …. 20.8

s 5(2)(c) …. 20.8 s 16 …. 20.3, 20.4 s 16(1)(a) …. 20.4 s 16(5) …. 20.5 s 16(6) …. 20.5 s 17 …. 20.9 s 18(4) …. 20.6 s 41 …. 20.15 s 41(1)(b) …. 20.16 s 41(1)(c) …. 20.16 s 41(1)(d) …. 20.16 s 41(2) …. 20.16 s 41(5) …. 20.16 s 57(1)(c) …. 20.32 s 57(1)(e) …. 20.33, 20.34 s 57(2)(e) …. 20.33 s 60 …. 20.33 s 101 …. 20.27 s 104 …. 20.26 s 105 …. 20.26 s 111 …. 20.26, 20.27 s 112 …. 20.27 s 113 …. 20.27 s 115 …. 20.27 s 127(1) …. 20.28 s 127(4) …. 20.28 s 136 …. 20.29 s 137 …. 20.29

Supreme Court Rules 1970 Pt 78 r 50 …. 20.20 Pt 78 r 52 …. 20.20 Pt 78 r 78.52(1) …. 20.20 Surrogacy Act 2010 …. 17.7, 17.8, 17.34 s 6(1) …. 17.7 s 6(2) …. 17.7 s 7 …. 17.7 s 8 …. 17.7 ss 12–20 …. 17.8 s 14 …. 17.8 s 18 …. 17.8 ss 21–38 …. 17.8 s 22 …. 17.8 s 23 …. 17.8 s 24 …. 17.8 s 25 …. 17.8 s 26 …. 17.8 s 27 …. 17.8 s 28 …. 17.8 s 29 …. 17.8 s 30 …. 17.8 s 31 …. 17.8 s 31(1) …. 17.30 s 32 …. 17.8 s 33 …. 17.8 s 34 …. 17.8 s 35 …. 17.8

s 36 …. 17.8 s 36(2) …. 17.8 s 37 …. 17.9 s 38 …. 17.8 Trustee Act 1925 …. 20.21 s 43 …. 20.22 s 44(1) …. 20.23 s 44(1A) …. 20.33 s 44(4) …. 20.33 Uniform Civil Procedure Rules 2005 r 7.14 …. 14.2, 20.36 Victims Rights and Support Act 2013 …. 14.10 Wills, Probate and Administration Act 1898 s 6A …. 20.3 s 20 …. 20.3 Workers Compensation Act 1987 …. 14.32 Young Offenders Act 1997 …. 8.3, 8.26, 8.27 s 63(3)(b) …. 8.18

Northern Territory Administration and Probate Act 1969 Pt III Div 4 …. 20.24 Pt III Div 4A …. 20.24 Pt III Div 5 …. 20.27 s 6(1) …. 20.26 s 6(4) …. 20.26 s 7(1)(d) …. 20.33 s 7(2)(b) …. 20.33

s 7(8) …. 20.32 s 22(3) …. 20.20 s 30(1) …. 20.20 s 30(1)(b) …. 20.20 s 61(1) …. 20.27 s 67(2) …. 20.27 s 67A …. 20.27 s 68 …. 20.28 s 69(2) …. 20.30 s 104 …. 20.26 s 152A …. 20.27 s 152A(a) …. 20.27 Sch 6 Pt I item 1 …. 20.26 Sch 6 Pt I item 2 …. 20.27 Sch 6 Pt I item 2(a) …. 20.27 Sch 6 Pt I item 3(1)(a) …. 20.26 Sch 6 Pt I item 3(1)(b) …. 20.26 Sch 6 Pt IV item 1 …. 20.28 Sch 6 Pt IV item 4 …. 20.29 Administration and Probate Act 1979 s 68(3) …. 20.30 Adoption of Children Act 1994 …. 16.7 s 4 …. 16.11 s 5 …. 16.8 s 6 …. 16.9 s 8 …. 16.10 s 9 …. 16.11 s 10(1) …. 16.38, 16.39

s 10(2) …. 16.38 s 11 …. 16.14 s 12(1)(a) …. 16.12 s 13(1)(a) …. 16.18 s 13(1)(b) …. 16.18 s 14(1) …. 16.18 s 14(2) …. 16.18 s 15 …. 16.27 s 15(1) …. 16.30 s 15(3) …. 16.30 s 15(4) …. 16.27 s 16(1)(a) …. 16.19 s 16(1)(b) …. 16.19 s 16(2) …. 16.19 s 16(3) …. 16.19, 16.26 s 16(4) …. 16.26 ss 22–25 …. 16.22 s 26(a) …. 16.33 s 27(1) …. 16.33 s 28(1) …. 16.33 s 30 …. 16.36 s 31(1) …. 16.37 s 31(1)(a) …. 16.37 s 33 …. 16.43 s 34(1) …. 16.43 s 34(2)(b) …. 16.35 s 35(a) …. 16.41 s 35(b) …. 16.41

s 35(c) …. 16.41 s 35(d) …. 16.41 s 35(e) …. 16.41 s 41 …. 16.20 s 44(1) …. 16.45, 16.46 s 44(2)(b) …. 16.46 s 44(3) …. 16.49 s 44(4) …. 16.49 s 44(5) …. 16.49 s 45 …. 16.5 ss 45–47 …. 20.13 s 61 …. 16.51 s 62 …. 16.51 s 62(3) …. 16.52 s 64 …. 16.51 s 65 …. 16.51 ss 69–70 …. 16.11 s 74 …. 16.11 s 80 …. 16.40 s 85 …. 16.16 Adoption of Children Regulations 1994 …. 16.7 reg 4 …. 16.11 reg 7 …. 16.20 Adult Guardianship Act 1988 …. 18.10 Age of Majority Act 1974 s 4 …. 18.3, 19.5 Anti-Discrimination Act 1996 …. 12.22 Care and Protection of Children Act 2007…. 9.21, 9.54, 13.1, 13.20, 22.29

s 4 …. 9.21 s 5 …. 9.21 s 5(1)(a) …. 9.36 s 9 …. 22.29 s 9(1)(c) …. 22.25 s 10 …. 22.29 s 10(2)(d) …. 22.25 s 11 …. 22.25, 22.29 s 12 …. 13.22 s 14 …. 9.27, 9.36 s 15 …. 9.32, 9.36, 12.13 s 15(1) …. 9.27, 9.36 s 15(2)(a) …. 9.27 s 15(2)(b) …. 9.27 s 15(2)(c) …. 9.27, 9.29 s 16 …. 9.32, 9.36 s 20 …. 9.26 s 20(a) …. 9.26 s 26 …. 9.32, 9.34, 9.36, 9.38, 12.13, 18.4 s 27 …. 9.30 s 78A …. 13.20 s 94 …. 22.29 s 101 …. 22.29 s 143A …. 22.29 s 143B …. 22.29 s 143B(4) …. 22.29 s 143C …. 22.29 s 203 …. 19.12

Crimes (Victims Assistance) Act 1982 …. 14.10 Criminal Code Act …. 18.32 s 11 …. 12.24 s 11(1) …. 12.24 s 38(2) …. 7.8, 22.35 s 149 …. 18.4, 18.48 s 170 …. 3.18, 3.19 s 183 …. 18.4 Sch 1 s 208B …. 3.17 Sch 1 s 208C …. 3.17 Education Act 2015 ss 38–40 …. 12.21 s 39 …. 12.21 s 91 …. 12.27 s 92 …. 12.29 s 93 …. 12.29 s 125(n) …. 12.28 s 160 …. 12.24 Education and Care Services (National Uniform Legislation) Act 2011 …. 12.6 Emergency Medical Operations Act s 2 …. 18.30, 18.39 s 3 …. 18.30, 18.39 Family Provision Act 1970 …. 20.31 s 7(1)(c) …. 20.32 s 7(1)(e) …. 20.34 s 7(3) …. 20.34 Guardianship of Infants Act 1972

s 15 …. 20.18 s 16 …. 20.18 Law of Property Act 2000 s 187 …. 20.15 Law Reform (Miscellaneous Provisions) Act 1955 s 16 …. 19.39 Limitation Act 1981 s 12(1) …. 14.5 s 36(1) …. 14.5 Medical Services Act s 11 …. 3.17 Personal Injuries (Liabilities and Damages) Act 2003 …. 14.28, 14.32 Pt 4 …. 14.31 s 4 …. 14.31 s 4(1) …. 14.28 s 19 …. 14.32 Sale of Goods Act 1972 s 7 …. 18.5, 19.18 Sexual Offences (Evidence and Procedure) Act 1983 s 4(5) …. 21.20 Status of Children Act 1978 …. 16.33 s 4 …. 20.13 s 5D …. 20.13 s 5DA …. 20.13 s 5F …. 20.13 Supreme Court Rules 1987 r 15.01 …. 20.36 r 15.02 …. 20.36 r 88.28 …. 20.20

r 88.29(1) …. 20.20 r 88.30 …. 20.20 Trustee Act 1907 …. 20.21 s 24 …. 20.22 s 24A(1) …. 20.23 s 24A(5) …. 20.23 Wills Act 2000 s 3 …. 20.2 s 7 …. 20.2 s 7(2)(a) …. 20.8 s 7(2)(b) …. 20.8 s 7(2)(c) …. 20.8 s 18 …. 20.3, 20.4 s 18(1)(a) …. 20.4 s 18(4)(b) …. 20.5 s 18(5) …. 20.5 s 18(6) …. 20.9 s 19(4) …. 20.6 s 38(1) …. 20.16 s 40 …. 20.15 s 40(1)(b) …. 20.16 s 40(1)(c) …. 20.16 s 40(1)(d) …. 20.16 s 40(4)(a) …. 20.16 s 40(4)(b) …. 20.16 s 40(5) …. 20.16 Youth Justice Act 2005 …. 8.3 s 4(d) …. 22.37

s 62 …. 22.37 Youth Justice Regulations 2005 …. 8.3

Queensland Adoption Act 2009 …. 16.7 Pt 2 Div 5 …. 16.33 Pt 11 …. 16.53 Pt 14 …. 16.11 Div 4 …. 16.53 Div 5 …. 16.20 s 6 …. 16.10 s 7 …. 16.14 s 10 …. 16.12 s 11 …. 16.14 s 16 …. 16.33 s 17 …. 16.33, 16.37 s 18 …. 16.37 s 19 …. 16.35 s 20 …. 16.43 s 22 …. 16.35 s 23 …. 16.35 s 36 …. 16.41 s 39(1)(b) …. 16.41 s 39(1)(e)(i) …. 16.41 s 39(1)(f) …. 16.41 s 57 …. 16.11 s 68 …. 16.27

s 76 …. 16.18 s 76(1)(a) …. 16.19 s 76(1)(d) …. 16.20 s 76(1)(e) …. 16.20 s 153 …. 16.11 s 174 …. 16.8 s 175(3)(b) …. 16.35 s 179(2) …. 16.38 s 183 …. 16.9 s 189 …. 16.9 s 204 …. 16.27 s 214 …. 16.5 s 214(7) …. 16.27 s 219 …. 16.45, 16.46 s 225(2) …. 16.46 s 225(5) …. 16.49 s 226(1) …. 16.49 s 226(3) …. 16.49 ss 255–275 …. 16.53 s 256 …. 16.51 ss 262-268–39C …. 16.51 s 273 …. 16.53 s 319 …. 16.22 s 320 …. 16.11 s 325 …. 16.16 Adoption of Children Act 1935 …. 16.3 Adoption of Children Act 2009 s 214 …. 20.13

ss 216 – 218 …. 20.13 Adoption Regulation 2009 …. 16.7 reg 5 …. 16.11 reg 7 …. 16.11 Anti-Discrimination Act 1991 …. 12.22 Child Employment Act 2006 s 11 …. 19.12 Child Protection Act 1999 …. 9.21, 13.1, 22.30 Pt1AA s 13E …. 18.4 Pt1AA s 13I …. 18.4 s 4 …. 9.21 s 6(1) …. 13.19, 13.23 s 9 …. 9.36, 12.13 s 9(2) …. 9.29 s 9(3) …. 9.36 s 9(3)(a) …. 9.27, 9.36 s 9(3)(b) …. 9.27 s 10 …. 9.26, 9.29 s 10(b) …. 9.27 s 13A …. 9.30 s 13D …. 9.30 s 13E …. 9.34, 9.35 ss 13E–13F …. 9.38 ss 13E–13J …. 9.32 s 13E(2)(a) …. 9.36 s 13F …. 9.34, 9.35 s 14 …. 9.26 s 14(1) …. 9.26

s 21A …. 9.29 s 186 …. 9.30 s 21A …. 3.14, 3.15 s 59(1)(d) …. 22.30 s 108 …. 22.30 s 110 …. 22.25, 22.30 Sch 3 …. 22.30 Children and Young People Act 2008 …. 9.39 Children’s Court Act 1992 …. 8.3 Civil Liability Act 2003 …. 14.28 Ch 3 …. 14.31 Pt 3 …. 14.29 s 4 …. 14.31 s 5 …. 14.32 s 9 …. 12.30, 14.23, 14.24 s 9(2) …. 12.30 s 11 …. 14.26 s 34 …. 14.29 s 35 …. 14.29 s 49A …. 3.5 s 52 …. 14.32 s 52(2)(b) …. 14.31 Credit Act 1987 s 136(1) …. 19.19 s 136(2) …. 19.19 Criminal Code Act 1899 …. 3.19 s 29(2) …. 7.8, 22.35 s 229B …. 21.16

s 285 …. 18.4 s 286 …. 18.4, 18.48 s 313 …. 3.18, 3.19 s 313(1) …. 3.19 s 313(2) …. 3.19 Sch 1 ss 224–226 …. 3.17 Criminal Law (Rehabilitation of Offenders) Act 1986 s 3 …. PSc.1 s 3(1) …. PSc.1 s 6 …. PSc.1 s 8 …. PSc.1 s 9 …. PSc.1 Education and Care Services National Law (Queensland) Act 2011 …. 12.6 Education and Care Services Regulation 2013 …. 12.6 Education (General Provisions) Act 2006 s 9 …. 12.21 s 176 …. 12.21 s 177 …. 12.21 s 230 …. 19.12 s 276(2)(a) …. 12.25 s 283 …. 12.29 s 284 …. 12.27 s 285 …. 12.29 s 288B …. 12.27 s 295 …. 12.29 s 365 …. 9.34 ss 365-366A …. 9.32, 9.35 s 366A …. 9.34

Evidence Act 1977 s 9 …. 21.12 s 9A …. 21.12 s 12 …. 21.12 s 13(4) …. 21.12 s 13(5) …. 21.12 Fair Trading (Code of Practice — Fitness Industry) Regulation 2003 …. PSc.6 s 8(1) …. PSc.6 s 8(3) …. PSc.6 Guardianship and Administration Act 2000 …. 18.10 Industrial and Reformatory Schools Act 1865 …. 9.7 s 6(7) …. 9.8 Information Privacy Act 1992 s 2 …. PSc.1 Law Reform Act 1995 s 10 …. 19.39 s 17 …. 18.3, 19.5, 20.2 Limitation of Actions Act 1974 …. 14.6 s 11(1) …. 14.5 s 29 …. 14.5 Penalties and Sentences Act 1992 s 4 …. PSc.1 Property Law Act 1974 s 209 …. 20.15 Public Health Act 2005 ss 162–166 …. 12.14 s 191 …. 9.34 Sale of Goods Act 1896

s 5 …. 18.5, 19.18 s 5(3) …. PSc.6 State Children Act 1911 …. 9.12 Status of Children Act 1978 …. 16.33, 20.32 Pt 3 …. 20.13 s 6 …. 20.13 Succession Act 1981 Pt 3 …. 20.24 Pt 3 Div 3 …. 20.27 Pt 4 …. 20.31 Pt 5A …. 20.18 s 5A …. 20.16 s 9(1) …. 20.2 s 9(2)(a) …. 20.8 s 9(2)(b) …. 20.8 s 9(2)(c) …. 20.8 s 19 …. 20.3, 20.4 s 19(3)(d) …. 20.4 s 20(c) …. 20.5 s 21(7) …. 20.6 s 29 …. 20.5 s 33N …. 20.15 s 33N(1)(b) …. 20.16 s 33N(1)(c) …. 20.16 s 33N(1)(d) …. 20.16 s 33N(2) …. 20.16 s 33N(3)(a) …. 20.16 s 33N(4) …. 20.16

s 33N(5) …. 20.16 s 33X …. 20.9 s 36A …. 20.28 s 40 …. 20.32, 20.33, 20.34 s 40A …. 20.33 s 41(1) …. 20.32 s 41(7) …. 20.36 s 41(9) …. 20.32 s 61A …. 20.18 Sch 2 Pt 1 item 1 …. 20.26 Sch 2 Pt 1 item 2 …. 20.27 Sch 2 Pt 1 item 2(1)(b) …. 20.27 Sch 2 Pt 2 item 1 …. 20.28 Sch 2 Pt 2 item 4 …. 20.29 Surrogacy Act 2010 …. 17.19, 17.34 s 15 …. 17.19 s 20 …. 17.30 s 26 …. 17.20 s 27 …. 17.20 s 28 …. 17.20 s 29 …. 17.20 s 30 …. 17.20 s 31 …. 17.20 s 32 …. 17.20 s 56 …. 17.19 Transplantation and Anatomy Act 1979 s 20 …. 8.30, 18.39 Trusts Act 1973 …. 20.21

s 60 …. 20.23 s 61 …. 20.22 s 62(1) …. 20.23 s 62(4) …. 20.23 s 63(1) …. 20.23 Uniform Civil Procedure Rules 1999 r 93(1) …. 20.36 r 639 …. 20.20 r 639(2) …. 20.20 r 639(3) …. 20.20 Victims of Crime Assistance Act 2009 …. 14.10 Working With Children (Risk Management and Screening) Act 2000 …. 9.54 Young Offenders (Interstate Transfer) Act 1987 …. 8.3 Youth Justice Act 1992 …. 8.3, 8.6, 8.18, 8.22 s 72 …. 22.37 s 79 …. 22.37 s 150 …. 8.21 s 184 …. PSc.1 Sch 1 …. 8.6, 22.37 Youth Justice Regulation 2003 …. 8.3

South Australia Administration and Probate Act 1919 Pt 3A …. 20.24 s 72B …. 20.27 s 72B(1) …. 20.27 s 72G(a) …. 20.26

s 72G(b)(i)(A) …. 20.27 s 72G(b)(i)(B) …. 20.27 s 72G(c) …. 20.28 s 72G(e) …. 20.29 s 72H(1) …. 20.27 s 72I(e)(ii) …. 20.28 s 72K …. 20.30 s 72L …. 20.27 s 72M …. 20.27 Adoption Act 1988 …. 16.5, 16.7 s 4 …. 16.12 s 4(3) …. 16.18 s 7 …. 16.10 s 8 …. 16.8, 16.9 s 9 …. 20.13 s 9(2) …. 16.27 s 10 …. 16.27, 16.30 s 12(1) …. 16.18 s 12(3) …. 16.18, 16.27 s 12(5) …. 16.18 s 14 …. 16.43 s 14(1) …. 16.45, 16.46 s 15 …. 16.43 s 15(1) …. 16.33 s 15(2) …. 16.35 s 15(3) …. 16.35 s 15(4)(a) …. 16.37 s 15(5) …. 16.37

s 15(7) …. 16.33 s 16(1) …. 16.38 s 18(1)(a) …. 16.41 s 18(1)(b) …. 16.41 s 18(1)(c) …. 16.41 s 18(1)(d) …. 16.41 s 18(1)(e) …. 16.41 s 18(2) …. 16.38 s 22 …. 16.20 s 26 …. 16.16 s 27 …. 16.51, 16.52 s 28 …. 16.11 ss 28–29 …. 16.11 s 29(2)(b) …. 16.11 Adoption of Children Act 1925 …. 16.3, 16.4 s 16 …. 16.4 Adoption Regulations 2004 …. 16.7 reg 4 …. 16.36 reg 9 …. 16.11 regs 16–18 …. 16.22 Age of Majority (Reduction) Act 1970 s 3 …. 18.3, 19.5 Child Protection Regulations 2010 …. 9.56 Children’s Protection Act 1993 …. 9.21, 9.54, 9.56, 13.1, 22.31 s 3 …. 9.21 s 5 …. 13.9, 13.23 s 6(1) …. 9.27 s 11 …. 12.13, 18.4

s 12 …. 9.30 s 13 …. 9.30 s 6. … 9.32, 9.35, 9.36 s 6(1)(b) …. 9.36 s 10 …. 9.32, 9.36 s 11 …. 9.32, 9.34, 9.35, 9.36 s 11(1) …. 9.38 s 11(2)(ga) …. 9.34 s 19(1) …. 9.26 s 46 …. 22.31 s 48 …. 22.25 s 48(1) …. 22.31 s 48(2) …. 22.31 s 48(3) …. 22.31 Children’s Protection Act Amendment Act 1969 …. 9.32 Civil Liability Act 1936 …. 14.28 Pt 8 …. 14.31 s 4 …. 14.31 s 32 …. 12.30, 14.23, 14.24 s 32(2) …. 12.30 s 33 …. 14.30 s 34 …. 14.26 s 42 …. 14.29 ss 44–50 …. 19.39 s 51 …. 14.31 s 51(a)(ii) …. 14.28 s 53(2) …. 14.30 s 67(1) …. 3.5

Consent to Medical Treatment and Palliative Care Act 1995 s 6 …. 18.12 s 13 …. 18.30, 18.39 Criminal Law Consolidation Act 1935 …. 3.17, 10.10, 18.4 s 50 …. 21.16 s 81 …. 3.17 s 82 …. 3.17 s 82A …. 3.18 Destitute Persons Relief Act 1866 Pt 3 …. 9.10 Destitute Persons Relief and Industrial Reformatory Schools Act 1872 …. 9.7 Education Act 1972 s 75 …. 12.21 s 75(5) …. 12.21 s 78 …. 19.12 Education and Early Childhood Services (Registration and Standards) 2011 …. 12.6 Education and Early Childhood Services (Registration and Standards) Act 2011 …. 12.6 Education Regulations 2012 reg 48 …. 12.27 Equal Opportunity Act 1984 …. 12.22 Evidence Act 1929 s 9(4) …. 21.12 Family Relationships Act 1975 …. 16.33, 17.13 Pt 2A …. 20.13 s 6 …. 20.13, 20.32 s 10F …. 17.13

s 10G …. 17.13 s 10HA …. 17.13 s 10HB …. 17.14, 17.15 s 10HB(2)(a) …. 17.30 s 10HC …. 17.15 s 11A(b) …. 20.26 Guardianship and Administration Act 1993 …. 18.10 Guardianship of Infants Act 1940 s 12 …. 20.18 s 13 …. 20.18 Inheritance (Family Provision) Act 1972 …. 20.31 s 6(c) …. 20.32 s 6(g) …. 20.33 s 6(h) …. 20.34 Law of Property Act 1936 s 61 …. 20.15 Limitation of Actions Act 1936 …. 14.6 s 36(1) …. 14.5 s 45 …. 14.5 s 45A …. 14.5 Minors Contracts (Miscellaneous Provisions) Act 1979 …. 18.5, 19.4, 19.28 s 4 …. 19.28 s 5 …. 19.19, 19.28 s 6 …. 19.28 s 7 …. 19.28 s 8 …. 19.28 Probate Rules 2015 r 44 …. 20.20

r 44(1)(a) …. 20.20 r 44(2) …. 20.20 r 44(3) …. 20.20 r 45 …. 20.20 Sale of Goods Act 1895 s 2 …. 18.5, 19.18 Succession Act 2006 s 3(2) …. 20.14 Summary Offences Act 1953 s 26C …. 10.23 Summary Offences (Filming Offences) Amendment Act 2013 …. 10.23 Supreme Court Civil Rules 2006 r 78 …. 20.36 Trustee Act 1936 …. 20.21 s 33 …. 20.22 s 33A(1) …. 20.23 s 33A(3) …. 20.23 Victims of Crime Act 2001 …. 14.10 Wills Act 1936 s 3(1) …. 20.2 s 5 …. 20.2 s 5(2) …. 20.8 s 5(3) …. 20.8 s 6 …. 20.3, 20.4 s 6(1) …. 20.4 s 6(4)(a) …. 20.5 s 6(4)(b) …. 20.5 s 7(5) …. 20.6 s 16 …. 20.12

s 25B …. 20.9 s 36 …. 20.15, 20.16 Young Offenders Act 1993 …. 8.3 s 3 …. 8.6 s 3(1) …. 8.7 s 30(2)(b) …. 22.37 Youth Court Act 1993 …. 8.3

Tasmania Administration and Probate Act 1935 s 3(2) …. 20.14 s 23(1) …. 20.20 Adoption Act 1988 …. 16.7 s 6 …. 16.8, 16.9 s 8 …. 16.10 s 9 …. 16.11 s 19(1)(a) …. 16.12 s 19(1)(b) …. 16.12 s 20(1) …. 16.18 s 20(2) …. 16.18 s 20(4) …. 16.18, 16.27 s 20(5)(a) …. 16.18 s 20(5)(b) …. 16.18 s 21 …. 16.30 s 22 …. 16.19 s 22(2)(b) …. 16.26 s 23 …. 16.39 s 24 …. 16.20

s 24(1)(b) …. 16.20 s 24(1)(c)(i) …. 16.20 s 28(2) …. 16.45, 16.46 s 28(5) …. 16.46 s 28(6) …. 16.49 s 28(7) …. 16.49 s 28(8) …. 16.49 s 29(1)(a) …. 16.33 s 29(3)(a) …. 16.33 s 30(1)(a) …. 16.37 s 31 …. 16.36 s 33(1) …. 16.37 s 35 …. 16.43 s 36(1) …. 16.43 s 36(2) …. 16.35 s 37(1)(a) …. 16.41 s 37(1)(b) …. 16.41 s 37(1)(c) …. 16.41 s 37(1)(e) …. 16.41 s 37(1)(h) …. 16.41 s 50 …. 16.5 ss 50–53 …. 20.13 s 78 …. 16.51 s 82 …. 16.51 ss 82–84 …. 16.53 ss 86A–86C …. 16.22 s 89 …. 16.52 s 90 …. 16.52, 16.53

s 90(3) …. 16.53 s 90(3)(b)(iii) …. 16.53 s 90(3A) …. 16.53 s 92 …. 16.16 ss 107–108 …. 16.11 s 110 …. 16.11 s 115A …. 16.53 Adoption of Children Act 1920 …. 16.3, 16.4 s 12 …. 16.4 Adoption of Children Act 1968 s 13 …. 16.27 Adoption Regulations 2006 …. 16.7 Pt 2 …. 16.11 reg 12 …. 16.11 Age of Majority Act 1973 s 3 …. 18.3 s 6 …. 19.5 Anti-Discrimination Act 1998 …. 12.22 Children, Young Persons and Their Families Act 1997 …. 9.21, 13.1, 22.32 s 3 …. 9.35 s 3(1) …. 9.27, 9.36 s 3(1)(b) …. 9.36 s 4(1) …. 9.26 s 4(1)(ba) …. 9.27, 9.29 s 9 …. 13.23 s 13 …. 12.13 s 13(2) …. 9.30 s 14 …. 9.32, 9.34, 9.35, 9.36, 12.13, 18.4

s 14(2) …. 9.38 s 16 …. 9.30 s 18(1) …. 9.26 s 56 …. 22.32 s 57 …. 22.32 s 59 …. 22.32 s 64 …. 22.32 s 91(1) …. 9.67 s 101A …. 9.30 Civil Liability Act 2002 …. 14.28 Pt 7 …. 14.31 Pt 8 …. 14.30 Pt 9 …. 14.29 s 3B(1)(a) …. 14.28 s 11 …. 12.30, 14.23, 14.24 s 11(2) …. 12.30 s 13 …. 14.26 s 33 …. 14.30 s 34 …. 14.30 s 37 …. 14.29 s 38 …. 14.29 Criminal Code Act 1924 s 18(1) …. 7.6 s 18(2) …. 7.8, 22.35 s 130E(2) …. 10.21 s 125A …. 21.16 s 144 …. 18.4 s 145 …. 18.4, 18.48

s 146 …. 18.4 s 165 …. 3.18 Sch 1 s 134 …. 3.17 Sch 1 s 135 …. 3.17 Custody of Infants Act 1934 s 4 …. 20.18 s 6 …. 20.18 Education Act 1994 s 4 …. 12.21 s 37 …. 12.27 s 38 …. 12.29 s 37(b) …. 12.25 s 82 …. 19.12 s 82A …. 12.24 Education and Care Services National Law (Application) Act 2011 …. 12.6 Guardianship and Administration Act 1995 …. 18.10 Guardianship and Custody of Infants Act 1934 ss 4–7 …. 20.18 Human Tissue Act 1985 s 21 …. 8.30, 18.39 Industrial Schools Act 1867 …. 9.7 Infants’ Relief Act 1875 …. 19.18 Intestacy Act 2010 …. 20.24 s 6(c) …. 20.26 s 12 …. 20.26, 20.27 s 13 …. 20.27 s 14 …. 20.27 s 16(1) …. 20.27 s 28(1) …. 20.28

s 28(4) …. 20.28 s 37 …. 20.29 s 38 …. 20.29 Limitation Act 1974 …. 14.5 s 5A …. 14.5 s 26 …. 14.5 Magistrates Court (Children’s Division) Act 1998 s 14 …. 22.32 Minors Contracts Act 1988 s 4 …. 19.19 s 4(1) …. 19.19 s 4(2) …. 19.19 s 5 …. 19.18 Perpetuities and Accumulations Act 1992 s 6 …. 20.15 Prevention of Cruelty to and Protection of Children Act 1895 …. 9.12 Public Health Act 1997 ss 58–60 …. 12.14 Registration to Work with Vulnerable People Act 2013 …. 9.54 Relationships Act 2003 Pt 2 …. 16.18 Reproductive Health (Access to Terminations) Act 2013 …. 3.17 Sale of Goods Act 1896 s 7 …. 18.5, 19.18 Status of Children Act 1974 …. 16.33 Pt 3 …. 20.13 s 3 …. 20.13 Supreme Court Rules 2000 r 292 …. 20.36

r 293 …. 20.36 r 740 …. 20.20 Surrogacy Act 2012 …. 17.25, 17.27, 17.34 Pt 4 …. 17.25 s 10 …. 17.25 s 14 …. 17.30 s 15 …. 17.25, 17.30 s 16 …. 17.26 s 22 …. 17.26 s 34 …. 17.27 Testator’s Family Maintenance Act 1912 …. 20.31 s 2(1) …. 20.32, 20.33 s 2(2) …. 2.33 s 3(5) …. 20.36 s 3A …. 20.34 s 3A(b) …. 20.32 Trustee Act 1898 …. 20.21 s 29 …. 20.22 s 29(1)(a) …. 20.23 s 29(1)(b) …. 20.23 s 64(2) …. 20.23 Victims of Crime Assistance Act 1976 …. 14.10 Wills Act 2008 s 4 …. 20.2 s 7(2)(a) …. 20.8 s 7(2)(b) …. 20.8 s 7(2)(c) …. 20.8 s 8 …. 20.4

s 20 …. 20.3, 20.4 s 20(1) …. 20.4 s 22(4) …. 20.6 s 20(4)(a) …. 20.5 s 20(4)(b) …. 20.5 s 20(5) …. 20.9 s 55 …. 20.15 s 55(1)(b)(a) …. 20.16 s 55(1)(d) …. 20.16 s 55(2) …. 20.16 s 55(3)(a) …. 20.16 s 55(4) …. 20.16 s 55(5) …. 20.16 Wrongs Act 1954 s 4 …. 19.39 Youth Justice Act 1997 …. 8.3 s 4(d) …. 22.37 s 5(1)(d) …. 22.37 s 29(1)(a)(ii) …. 22.37 Youth Justice Amendment Regulations 2014 …. 8.3 Youth Justice (Miscellaneous Amendments) Act 2013 …. 8.3 Youth Justice Regulations 2009 …. 8.3

Victoria Aborigines Protection Act 1886 …. 1.35 Abortion Law Reform Act 2008 …. 3.17 Administration and Probate Act 1958 Pt I Div 6 …. 20.24

Pt IV …. 20.31 Pt IV s 90 …. 20.33, 20.34 s 3(1) …. 20.26 s 5 …. 20.27 s 5(1) …. 20.26, 20.27 s 5(2) …. 20.14 s 26(1) …. 20.20 s 37A …. 20.27 s 52(1)(f) …. 20.28, 20.30 s 51(2)(a) …. 20.27 s 51(2)(b) …. 20.27 s 51(2)(c) …. 20.27 s 55 …. 20.29 s 90 …. 20.32 s 90A …. 20.32 Adoption Act 1984 …. 16.7 s 6 …. 16.8 s 7 …. 16.9 s 9 …. 16.10 s 10(1)(a) …. 16.12 s 10(1)(b) …. 16.12 s 11 …. 16.18 s 11(1)(b) …. 16.18 s 11(3) …. 16.18 s 11(4) …. 16.18 s 11(6)(a) …. 16.25 s 11(6)(b) …. 16.25 s 11(7) …. 16.27

s 12 …. 16.30 s 14(1)(b) …. 16.38, 16.39 s 15(1) …. 16.20 s 15(1)(b) …. 16.20 s 15(1)(c) …. 16.20 s 19(1) …. 16.45, 16.46 s 19(2) …. 16.45 s 19(5A) …. 16.46 s 19(6) …. 16.49 s 19(7) …. 16.49 s 19(8) …. 16.49 s 20 …. 16.11 s 33(1) …. 16.33 s 33(3) …. 16.33 s 33(4) …. 16.33 s 34 …. 16.37 s 35(1) …. 16.36 s 39(1) …. 16.37 s 41 …. 16.43 s 41(1) …. 16.43 s 42(1) …. 16.43 s 42(3) …. 16.35 s 43(1)(a) …. 16.41 s 43(1)(b) …. 16.41 s 43(1)(c) …. 16.41 s 43(1)(e) …. 16.41 s 43(1)(h) …. 16.41 s 50 …. 16.14

s 53 …. 16.5 ss 53–55 …. 20.13 s 58 …. 20.13 ss 92–94 …. 16.51 s 93(1) …. 16.51 ss 95–98 …. 16.51 s 96A …. 16.51 s 102 …. 16.52 s 103 …. 16.52 s 103(3)(b) …. 16.54 s 105 …. 16.16 s 106 …. 16.40 ss 119–120 …. 16.11 s 122 …. 16.11 Adoption of Children Act 1928 …. 16.3 Adoption of Children (Information) Act 1980 …. 16.52 Adoption Regulations 2008 …. 16.7 Pt 2 …. 16.11 reg 35 …. 16.11 Age of Majority Act 1977 s 3 …. 18.3, 19.5 Anglican Trusts Corporation Act 1884 …. 14.9 Assisted Reproductive Treatment Act 2008 …. 17.10, 17.11 Pt 6 Div 1 …. 17.12 Pt 9 …. 17.11 s 10 …. 17.11 s 14 …. 17.11 s 40 …. 17.11

s 42 …. 17.11 s 44(1) …. 17.10 s 44(2) …. 17.10 s 44(3) …. 17.10 s 56 …. 17.12 s 59 …. 17.12 Assisted Reproductive Treatment Amendment Act 2015 …. 17.12 Australian Consumer Law and Fair Trading Act 2012 s 32(2) …. 19.19 s 32(3) …. 19.19 Board for the Protection of Aborigines Act 1869 …. 1.35 s 13(v) …. 1.35 Board for the Protection of Aborigines Regulations reg 1 …. 1.35 Charter of Human Rights and Responsibilities Act 2006 …. 2.7, 2.8, 8.12 s 17 …. 2.7 s 23 …. 2.7 s 24(3) …. 2.7 s 25(3) …. 2.7 Charter of Rights and Responsibilities Act 2006 …. 1.46 Child Employment Act 2003 s 11 …. 19.12 Children and Young Person’s Act 1989 …. 1.24 Children, Youth and Families Act 2005 …. 1.24, 8.3, 9.21, 13.1, 13.17, 13.19, 13.20, 13.21, 22.25, 22.33 Ch 4.10 ss 319–327 …. 16.32 s 10 …. 2.22 s 10(3)(e) …. 5.10 s 12 …. 13.19, 13.23

ss 12–14 …. 2.23 s 14(2) …. 9.38 s 18 …. 13.19, 13.22 s 28 …. 9.30 s 29 …. 3.14, 3.15, 9.27 s 30(2) …. 9.27 s 32 … 9.27 s 40 …. 9.30 s 41 …. 9.30 s 162 …. 9.26, 9.32, 9.35, 9.36 s 162(1)(b)–(f) …. 9.29 s 162(1)(c) …. 9.27, 9.36 s 162(1)(c)–(f) …. 9.26 s 162(1)(d) …. 9.27 s 162(1)(e) …. 9.27, 9.36 s 162(1)(f) …. 9.27, 9.36 s 176 …. 13.19 s 182 …. 9.32, 9.34, 9.35, 9.36, 18.4 s 182(c) …. 12.13 s 184 …. 9.32, 9.35, 9.36, 12.13, 18.4 s 224 …. 5.8 s 294(a) …. 13.21 s 321 …. 16.32 s 321(1)(c) …. 16.32 s 323 …. 13.21 s 326 …. 16.32 s 493 …. 9.67 s 524 …. 22.25, 22.37

s 524(1) …. 22.33 s 524(4) …. 22.33 s 524(10) …. 22.33 s 524(11) …. 22.33 s 525 …. 22.37 Children, Youth and Families Amendment (Permanent Care and Other Matters) Act 2014 …. 13.21 Children’s Welfare Act 1924 …. 1.24 Children’s Welfare Act 1926 …. 1.24 Children’s Welfare Act 1928 …. 1.24 Children’s Welfare Act 1933 …. 1.24 Classification (Publications, Films and Computer Games)(Enforcement) Act 1995 …. 10.21 Coptic Orthodox Church (Victoria) Property Trust Act 2006 …. 14.9 Credit Act 1984 s 140(1) …. 19.19 s 140(2) …. 19.19 Crimes Act 1958 …. 9.68, 10.10 s 47A …. 21.16 s 49B …. 9.71 s 49C …. 9.70, 14.40 s 61 …. 21.20 s 70(2)(d) …. 10.21 s 70(2)(e) …. 10.21 s 70AAA …. 10.21 s 327 …. 9.69 s 327(2) …. 14.40 s 328 …. 9.69 s 329 …. 9.69

s 330 …. 9.69 Crimes Amendment (Grooming) Act 2014 …. 14.40 Crimes Amendment (Protection of Children) Act 2014 …. 9.68 Crimes Amendment (Sexual Offences and Other Matters) Act 2014 …. 10.21 s 8 …. 10.21 s 25 …. 10.23 s 28 …. 10.21 Criminal Injuries Compensation Act 1983 …. 20.7 Education Act 1872 …. 1.22 Education and Care Services National Law Act 2010 …. 12.6, 12.7, 12.8, 12.10, 12.15, 12.18 Pt 1 …. 12.5 Pts 2–4 …. 12.7 s 3(2) …. 12.6, 12.9 s 3(3) …. 12.6 s 5 …. 12.5 s 25 …. 12.7 s 103 …. 12.7 s 104 …. 12.7 ss 133–137 …. 12.17 s 160 …. 12.17 s 165 …. 12.15 s 165(1) …. 12.15 s 166 …. 12.16 s 167 …. 12.15 s 168 …. 12.10 s 169 …. 12.8, 12.9 s 177 …. 12.18

s 179 …. 12.18 s 180 …. 12.18 s 181 …. 12.18 s 182 …. 12.18 s 187 …. 12.18 s 188 …. 12.18 s 189 …. 12.18 s 225 …. 12.18 s 301 …. 12.6 s 302 …. 12.6 s 324 …. 12.6 Education and Training Reform Act 2006 s 2.1.1 …. 12.21 s 2.1.2 …. 12.21 s 2.1.23 …. 12.21 s 2.2.19 …. 12.29 s 4.3.1(6) …. 12.24 Education and Training Reform Regulations 2007 reg 14 …. 12.24 reg 15 …. 12.26 Equal Opportunity Act 2010 …. 12.22 Evidence Act 1906 s 100A …. 21.12 s 106B …. 21.12 Evidence Act 2008 s 13 …. 21.12 s 13(5) …. 21.12 s 41(1) …. 21.43

Financial Management Act 1994 s 58 …. 20.29 Goods Act 1958 s 7 …. 18.5, 19.18 s 26 …. 19.39 s 63 …. 19.39 Guardianship and Administration Act 1986 …. 18.10 Human Tissue Act 1982 s 24 …. 8.30, 18.39, PSc.5 Justice Legislation Amendment (Cancellation of parole and other matters) Act 2013 …. 22.33 Limitation of Actions Act 1958 …. 14.5, 14.40 Pt XI …. 14.30 s 27D …. 14.5 s 27I …. 14.5 s 27J …. 14.5 s 27O …. 14.7 s 27P …. 14.7 Limitation of Actions Amendment (Child Abuse) Act 2015 …. 14.7 Marriage Act 1958 s 135 …. 20.18 s 135(3) …. 20.18 s 135(4) …. 20.18 Neglected and Criminal Children’s Act 1864 …. 1.24, 1.26, 1.29, 9.7 s 13 …. 9.8 s 14 …. 9.9 s 15 …. 9.9 Neglected and Criminal Children’s Act 1874 …. 1.24 Neglected and Criminal Children’s Act 1878 …. 1.24

Neglected Children’s Act 1887 …. 1.24 Neglected Children’s Act 1890 …. 1.24 Neglected Children’s Act 1915 …. 1.24 Presbyterian Trusts Act 1890 …. 14.9 Public Health and Wellbeing Amendment (No Jab, No Play) Act 2015 …. 12.14 Roman Catholic Trusts Act 1907 …. 14.9 Salvation Army (Victoria) Property Trust Act 1930 …. 14.9 Status of Children Act 1974 …. 16.33, 17.10, 17.11, 17.34 Pt 2-4 …. 20.13 s 3 …. 20.13 s 20(1)(a) …. 17.30 s 22 …. 17.10, 17.11 s 22(d) …. 17.10 s 23 …. 17.11 s 24 …. 17.10 Summary Offences Act 1966 s 40 …. 10.23 s 41DA …. 10.23 s 41DB …. 10.23 Supreme Court Act 1986 s 49 …. 19.18 s 49(a) …. 19.18 s 49(b) …. 19.18 s 49(c) …. 19.18 Supreme Court (Administration and Probate) Rules 2014 r 5.01 …. 20.20 r 5.01(2) …. 20.20 Supreme Court (General Civil Procedure) Rules 2015

r 15.01 …. 20.36 r 15.02 …. 20.36 r 15.03 …. 20.36 Trustee Act 1958 …. 20.21 s 37 …. 20.22 s 38(1) …. 20.23 s 38(4) …. 20.23 Vagrancy Act 1966 …. 1.28 Victims of Crime Assistance Act 1996 …. 14.10 Wills Act 1997 s 3 …. 20.2 s 5 …. 20.2 s 6 …. 20.2 s 6(a) …. 20.8 s 6(b) …. 20.8 s 6(c) …. 20.8 s 7(b) …. 20.8 s 20 …. 20.3, 20.4 s 20(3) …. 20.4 s 20(6) …. 20.5 s 20(7) …. 20.5 s 21 …. 20.7 s 21(3) …. 20.6 s 43(1) …. 20.16 s 45 …. 20.15 s 45(1) …. 20.16 s 45(1)(a) …. 20.16 s 45(1)(b) …. 20.16

s 45(1)(c) …. 20.16 s 45(3) …. 20.16 s 45(4)(c) …. 20.16 Working With Children Act 2005 …. 9.54 Wrongs Act 1958 …. 14.28, 14.40 Pt VB …. 14.31 Pt VBA …. 14.31 Pt XII …. 14.29 s 28C(2)(a) …. 14.28, 14.31 s 28LC(2)(a) …. 14.28, 14.31 s 48 …. 12.30, 14.23, 14.24 s 48(2) …. 12.30 s 51 …. 14.26 s 72 …. 14.30 s 72(1) …. 14.30 s 79 …. 14.29 s 83 …. 14.29

Western Australia Aboriginal Affairs Planning Authority Amendment Act 1972 s 4 …. 20.26 s 5 …. 20.26 Administration Act 1903 …. 16.33 Pt II …. 20.24 s 14(1) item 1 …. 20.27 s 14(1) item 2(a) …. 20.27 s 14(1) item 2(b) …. 20.27 s 14(1) item 3(a) …. 20.26

s 14(1) item 3(b) …. 20.26 s 14(1) item 4 …. 20.26 s 14(1) item 5 …. 20.28 s 14(1) item 11 …. 20.29 s 14(2)(a) …. 20.27 s 14(2b) …. 20.28 s 14(4) …. 20.27 s 14(6) …. 20.27 s 33 …. 20.20 s 33(1) …. 20.20 s 33(2) …. 20.20 Sch 4 …. 20.27 Adoption Act 1994 …. 16.7, 16.30 Pt 4 Div 4 …. 16.53 s 3 …. 16.10 s 4 …. 16.8, 16.14 s 4(2)(c) …. 16.18 s 6 …. 16.11 s 8 …. 16.11 s 9 …. 16.11 s 10 …. 16.11 s 11 …. 16.11 s 12 …. 16.20 s 13 …. 16.20 s 14(2) …. 16.49 s 16A …. 16.14 s 17 …. 16.33 s 17(1) …. 16.33

s 17(1)(c)(ii) …. 16.38 s 18 …. 16.36 s 18(1) …. 16.35 s 18(1)(c) …. 16.37 s 18(5) …. 16.43 s 20 …. 16.37 s 22 …. 16.43 s 23 …. 16.38 s 24(2)(a) …. 16.41 s 24(2)(b)(i) …. 16.41 s 24(2)(b)(ii) …. 16.41 s 24(2)(c) …. 16.30 s 24(2)(d) …. 16.41 s 24(2)(g) …. 16.41 s 39 …. 16.18 s 40 …. 16.18, 16.20 s 45 …. 16.20 s 46 …. 16.6 s 52 …. 16.16, 16.19 s 53 …. 16.16 s 65 …. 16.9 s 66(1) …. 16.12 s 66(2) …. 16.12 s 67 …. 16.27 s 68(2)(b) …. 16.30 s 75 …. 16.5, 20.13 s 75(2) …. 16.27 s 75(3) …. 16.27

s 77(1) …. 16.45 s 77(2) …. 16.45, 16.46 s 77(3)(a) …. 16.46 s 77(4) …. 16.49 s 77(5) …. 16.49 s 77(6) …. 16.49 s 77(7) …. 16.49 s 79 …. 16.52 s 82 …. 16.51 s 85 …. 16.51 s 88 …. 16.51 s 96(1) …. 16.53 s 99 …. 16.53 ss 99–100 …. 16.53 s 99(a) …. 16.53 s 100 …. 16.53 s 103 …. 16.53 ss 110–113 …. 16.22 s 122 …. 16.11 s 123 …. 16.11 s 132 …. 20.13 s 134 …. 16.40 s 140 …. 16.16 Sch 1 …. 16.36 Adoption Amendment Act (No. 2) 2003 s 2(1) …. 16.53 Adoption of Children Act 1896 …. 16.3 Adoption Regulations 1995 …. 16.7

Pt 2 …. 16.11 reg 41(1)(b) …. 16.20 Age of Majority Act 1972 s 5 …. 18.3, 19.5, 20.2 Artificial Conception Act 1985 ss 5–7 …. 20.13 Child Welfare Act 1947 …. 6.16 s 4(1)(j) …. 7.24 s 138B …. 6.14, 6.15, 6.16, 6.17, 6.21 Children and Community Services Act 2004 …. 6.21, 7.24, 9.21, 9.32, 13.1, 22.34 s 6 …. 9.21 s 10 …. 22.25, 22.34 s 13 …. 13.22 s 28 …. 7.24, 9.35, 9.36 s 28(1) …. 9.26, 9.27, 9.29 s 28(2)(c) …. 9.26 s 28(2)(c)(i) …. 9.27, 9.36 s 28(2)(c)(ii) …. 9.27 s 28(2)(c)(iii) …. 9.27 s 28(2)(c)(v) …. 9.27 s 28(c)–(d) …. 9.29 s 41 …. 6.14, 6.15, 6.17 s 41(2)(i) …. 6.17 s 101 …. 9.35, 9.67 s 124(A) …. 12.13 s 124A …. 18.4 ss 124A–124H …. 9.32, 9.36

s 124B …. 9.34, 9.35, 9.38, 12.13, 18.4 s 129 …. 9.30 s 147 …. 22.34 s 148(2) …. 22.34 s 148(4) …. 22.34 s 149 …. 22.34 s 190 …. 19.12 s 240(1) …. 9.30 Children and Community Services Amendment (Reporting Sexual Abuse of Children) Act 2008 …. 9.32 Children’s Court of Western Australia Act 1988 …. 8.3 Civil Liability Act 2002 …. 14.28 Pt 2 …. 14.31 s 3B(1) …. 14.28, 14.31 s 5B …. 12.30, 14.23, 14.24 s 5B(2) …. 12.30 s 5C …. 14.26 s 5S …. 14.30 s 5S(1) …. 14.30 s 5U …. 14.29 ss 5U–5Z …. 14.29 s 5W …. 14.29 Credit Act 1984 s 140(1) …. 19.19 s 140(2) …. 19.19 Criminal Code Act Compilation Act 1913 s 29 …. 7.8, 7.25, 22.35 s 199 …. 3.17

s 204B …. 10.22 s 262 …. 18.4 s 263 …. 18.4, 18.48 s 279(5) …. 7.23 s 290 …. 3.18, 3.19 s 321A …. 21.16 s 338 …. 10.10 s 338B …. 10.10 s 338D …. 10.10 s 338E …. 10.10 s 401(4)(b) …. 7.23 Criminal Injuries Compensation Act 2003 …. 14.10 Criminal Law Amendment (Home Burglary and Other Offences) Act 2014 …. 8.22 s 279 (6a) …. 8.22 Education and Care Services National Law (WA) Act 2012 …. 12.6 Education and Care Services National Regulations 2012 …. 12.6 Escheat (Procedure) Act 1940 s 9 …. 20.29 Equal Opportunity Act 1984 …. 12.22 Family Court Act 1997 …. 15.1, 16.33, 8.43 s 71 …. 20.18 s 71(1) …. 20.18 s 71(3) …. 20.18 Family Provision Act 1972 …. 20.31 s 7(1)(c) …. 20.32 s 7(1)(d) …. 20.34 s 7(1)(ea) …. 20.33 s 7(1)(eb) …. 20.33

Guardianship and Administration Act 1990 …. 18.10 Human Reproductive Technology Act 1991 …. 17.17 Human Tissue and Transplant Act 1982 s 21 …. 8.30, 18.39 Industrial Schools Act 1874 …. 9.7 Inheritance (Family and Dependants Provision) Act 1972 …. 16.33 Inspector of Custodial Services Act 2003 …. 8.3 Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 s 4 …. 19.39 Limitation Act 2005 s 14(1) …. 14.5 ss 30–33 …. …. 14.5 Non-Contentious Probate Rules 1967 r 26 …. 20.20 r 26(2) …. 20.20 Property Law Act 1969 s 101 …. 20.15 Rules of the Supreme Court 1971 O 70 r 1 …. 20.36 O 70 r 2 …. 20.36 Sale of Goods Act 1895 s 2 …. 18.5, 19.18 School Education Act 1999 s 3 …. 12.22 s 9 …. 12.21 s 9(2) …. 12.21 s 47 …. 12.21 s 48 …. 12.21

s 90 …. 12.29 s 91 …. 12.27 s 92 …. 12.29 School Education Regulations 2000 reg 38 …. 12.26 reg 38(c) …. 12.26 reg 40(2) …. 12.24 Surrogacy Act 2008 …. 17.16, 17.17, 17.34 s 6 …. 17.16 s 7 …. 17.16 s 8 …. 17.16 s 9 …. 17.16 s 10 …. 17.16 s 12 …. 17.30 s 13 …. 17.17 s 15 …. 17.17 s 16 …. 17.17 s 19 …. 17.17 s 21(2)(f) …. 17.17 s 21(3) …. 17.17 s 22 …. 17.17 Surrogacy Regulations 2009 …. 17.17 Trustees Act 1962 …. 20.21 s 58 …. 20.22 s 59(a) …. 20.23 s 59(b) …. 20.23 s 60(1) …. 20.23 Wills Act 1970 …. 16.33

s 7 …. 20.2 s 27 …. 20.15 s 27(1)(a) …. 20.16 s 27(3) …. 20.16 s 31 …. 20.13 s 40(2)(b) …. 20.6 Young Offenders Act 1994 …. 8.3 s 6(c) …. 22.37 s 7(c) …. 22.37 s 44(2)(b) …. 22.37 Young Offenders Regulations 1995 …. 8.3 Working with Children (Criminal Record Checking) Act 2004 …. 9.54

United Kingdom Adoption Act 1976 …. 16.3 s 16(4) …. 16.35 s 18(4) …. 16.35 Age of Majority (Scotland) Act 1969 …. 19.5 Crime and Disorder Act 1998 …. 7.23 s 34 …. 7.2 Family Law Reform Act 1969 …. 19.5 Industrial Schools Act 1857 s 45 …. 9.7 Infants’ Relief Act 1874 …. 19.17, 19.18 Inquiries Act 2005 …. 14.1 Minors’ Contracts Act 1987 s 1 …. 19.18 New Poor Law Act 1834 …. 1.27 Prevention of Cruelty to, and Protection of, Children Act 1889 …. 9.12

s 1 …. 9.12 s 5 …. 9.12 Protection from Harassment Act 1997 …. 10.18 Wills Act 1837 …. 20.1 Youth Justice and Criminal Evidence Act 1999 …. 21.40

Canada Canadian Indian Act …. 13.30 Child and Family Services Act 2003 …. 13.32 Constitution 1982 …. 13.30 Human Rights Act 1985 …. 13.34 s 5 …. 13.35 Limitations Act (Alberta) …. 14.7 Limitations Act (British Columbia) …. 14.7 Limitations Act (Newfoundland and Labrador) …. 14.7 Limitations Act (Saskatchewan) …. 14.7 Limitation of Actions Act (Manitoba) …. 14.7 Limitation of Actions Act (New Brunswick) …. 14.7 Limitation of Actions Act (Yukon) …. 14.7

Nauru Asylum Seekers (Regional Processing Centre) Act 2012 s 15 …. 11.5

New Zealand Adoption of Children Act 1881 …. 16.3, 16.4 s 5 …. 16.3 s 6 …. 16.3

Harassment Act 1997 …. 10.18 Immigration Act 2009 s 377 …. 11.4

Singapore Protection from Harassment Act 2014 …. 10.18

South Africa Constitution …. 2.15

International Convention on the Elimination on All Forms of Discrimination against Women …. 17.35, 17.42 art 5b …. 17.42 art 11(2) …. 17.42 art 12 …. 17.42 art 16 …. 15.21 Convention on the Reduction of Statelessness 1975 …. 11.10 art 1 …. 11.10 art 1(2)(d) …. 11.10 Convention Relating to the Status of Stateless Persons 1954 art 1(1) …. 11.10 Hague Convention on Intercountry Adoption 1993 …. 16.1, 16.56, 16.58, 16.59, 16.64 Ch III …. 16.56 art 1 …. 16.58 arts 6–13 …. 16.56

arts 14–21 …. 16.59 art 20 …. 16.57 arts 20–21 …. 16.57 art 21 ….. 16.57 arts 23–25 …. 16.59 art 26 …. 16.59 arts 26–27 …. 16.59 art 30 …. 16.59 art 32 …. 16.64 International Convention on the Elimination of all Forms of Racial Discrimination …. 13.5 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families 1990 art 29 …. 11.8 International Covenant on Civil and Political Rights 1966 …. 2.3, 2.7, 2.14, 13.5, 14.41, 17.35, 17.36, 17.38 art 1 …. 13.5 art 2 …. 17.36 art 10(3) …. 2.14 art 14(4) …. 2.14 art 17 …. 10.26, 17.36 art 23 …. 17.36 art 23(4) …. 2.14 art 24 …. 2.14 art 24(1) …. 17.36 art 24(2) …. 17.38 art 24(3) …. 11.8, 17.38 art 26 …. 17.36

International Covenant on Economic Social and Cultural Rights 1996 …. 2.3, 2.7, 2.14, 13.5, 17.35 art 1 …. 13.5 art 10 …. 2.14, 17.36 Rules for the Protection of Juveniles Deprived of their Liberty 1990 (Havana Rules) …. 8.9, 8.13 Standard Minimum Rules for the Administration of Juvenile Justice 1985 (Beijing Rules) …. 8.9 r 11 …. 8.10 r 17 …. 8.23 r 18.1 …. 8.11 Standard Minimum Rules for Non-Custodial Measures 1990 (Tokyo Rules) …. 8.9 United Nations Convention on the Rights of the Child 1989 …. 1.44, 2.1, 2.3, 2.4, 2.5, 2.7, 2.8, 2.9, 2.10, 2.13, 2.14, 2.16, 2.20, 2.22, 2.23, 2.24, 2.27, 2.29, 4.30, 7.1, 7.6, 8.9, 8.10, 8.11, 9.14, 9.21, 11.5, 11.7, 11.10, 12.1, 12.22, 13.1, 13.5, 13.6, 13.7, 13.8, 13.9, 13.10, 13.11, 13.18, 13.24, 15.6, 15.9, 15.18, 16.1, 16.10, 16.13, 16.16, 17.35, 17.38, 17.40, 17.41, 22.1, 22.2, 22.8, 22.9, 22.10, 22.11, 22.20, 22.50 art 1(3) …. 2.13 art 2 …. 2.21, 13.7, 16.13, 7.40 art 2(1) …. 2.13 art 2(c) …. 10.20 art 3 …. 2.24, 4.26, 9.21, 13.9, 22.8, 22.10, 22.11, 22.20 art 3(1) …. 2.22, 17.38, 22.11 art 4 …. 2.18 art 5 …. 2.5, 22.10 art 6 …. 2.14 art 6(1) …. 2.23

art 7 …. 2.14, 11.8, 17.38 art 7(1) …. 11.8, 17.38 art 8 …. 2.14, 11.8, 11.12, 13.9, 17.38 art 8(1) …. 11.8, 17.38 art 9 …. 2.24, 9.21, 22.8, 22.17 art 9(1) …. 17.38 art 12 …. 2.5, 2.24, 4.26, 9.21, 16.10, 16.13, 16.38, 22.2, 22.8, 22.9, 22.10, 22.17, 22.20, 22.25, 22.27 art 12(1) …. 16.10, 22.9 art 12(2) …. 22.9 art 13 …. 2.14, 2.24 art 14 …. 2.24, 13.9 art 15 …. 2.24 art 16 …. 10.26 art 17 …. 2.24 art 18 …. 2.18, 9.21 art 18(1) …. 11.5 art 19 …. 2.18, 5.5, 9.21 art 20 …. 2.14, 9.21, 13.9 art 21 …. 2.14, 2.24, 16.10 art 21(d) …. 16.64 art 22 …. 2.14 art 23 …. 2.14, 2.24 art 24 …. 2.14, 2.18 art 24(3) …. 2.27 art 25 …. 16.16 art 27 …. 2.18, 16.16 art 28 …. 2.14

art 28(2) …. 12.28 art 28(12) …. 12.28 art 28(a) …. 12.1 art 28(b) …. 12.1 art 29 …. 2.14, 13.9 art 29(1) …. 2.24 art 30 …. 2.14, 13.6, 13.9 art 31 …. 2.23, 17.40 art 32 …. 2.14, 2.23 art 34 …. 9.21, 10.20, 17.41 art 35 …. 17.40 art 36 …. 9.21 art 37 …. 2.14, 8.9, 22.8 art 37(a) …. 8.9 art 37(b) …. 8.9 art 37(c) …. 8.9 art 38 …. 2.14 art 40 …. 2.14, 2.17, 8.9, 22.8 art 40(1) …. 8.23 art 40(2) …. 2.24 art 40(2)(b) …. 8.9 art 40(3) …. 8.10 art 40(3)(a) …. 7.1 art 40(3)(b) …. 7.7, 7.21 art 40(4) …. 8.11 art 55 …. 2.13 art 56 …. 2.13 United Nations Convention on the Rights of Persons with Disabilities ….

2.14, 2.19 art 3(h) …. 2.14 art 4(3) …. 2.14 art 7 …. 2.14 art 8(2)(b) …. 2.14 art 16(5) …. 2.14 art 18(2) …. 2.14 art 23 …. 2.14 art 23(c) …. 2.19 art 24(2) …. 2.14 art 24(3) …. 2.14 art 25(b) …. 2.14 United Nations Declaration on the Rights of Indigenous Peoples …. 13.5, 13.6 art 3 …. 13.5 art 14 …. 13.5 art 18 …. 13.5 art 21 …. 13.5 art 22 …. 13.5 United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 …. 7.1, 22.8 4.1 …. 7.7, 7.28 Universal Declaration on Human Rights 1948 …. 2.3 art 1 …. 2.19 art 15(1) …. 11.8 art 16 …. 15.21 Vienna Convention on the Law of Treaties 1969 …. 17.40 art 26 …. 2.7, 2.13

Table of Contents Foreword Contributors Detailed Table of Contents Preface Acknowledgments Table of Cases Table of Statutes

Part I

Children in Context

Chapter 1

Children and the Law: An Historical Overview

Chapter 2

The Development of Children’s Rights

Chapter 3

The ‘Child’ In Utero and Ex Utero

Chapter 4

Developmental Science, Child Development and the Law

Chapter 5

Child Maltreatment

Chapter 6

The Child, the Young Person and the Law

Part II

Children and Public Law Issues

Chapter 7

The Criminal Responsibility of Children

Chapter 8

Young People and Juvenile Justice

Chapter 9

Protecting Children from Abuse and Neglect

Chapter 10

E-Safety: Protection of Children from Cyber-bullying, Sexting and Privacy Invasion

Chapter 11

Migrant and Non-Citizen Children

Chapter 12

Education of Children — Preschool to Secondary Education

Chapter 13

Aboriginal and Torres Strait Islander Children’s Welfare and Well-being

Chapter 14

Compensation for Survivors of Institutional Child Sexual Abuse in Australia: Tortious Rights and Challenges for Reform

Part III

Children and Private Law Issues

Chapter 15

Children and ‘Family Law’

Chapter 16

Adoption

Chapter 17

Surrogacy

Chapter 18

Medical Treatment

Chapter 19

Civil Liability of Children

Chapter 20

Children and Succession

Part IV

Children in Court

Chapter 21

Child Witnesses

Chapter 22

Legal Representation of Children

Appendix:

Practical Scenarios

Index

Detailed Table of Contents Foreword Contributors Table of Contents Preface Acknowledgments Table of Cases Table of Statutes

Part I Chapter 1

Children in Context Children and the Law: An Historical Overview

Judith Bessant and Rob Watts Introduction ‘Childhood’ and history The state, law and childhood Inventing childhood: schooling The invention of ‘adolescence’ Stolen generations Conclusion Chapter 2

The Development of Children’s Rights

John Tobin Introduction Should children have rights?

What rights do children have? What does it mean to adopt a rights-based approach to matters involving children? Conclusion Chapter 3

The ‘Child’ In Utero and Ex Utero

Pam Stewart and Anita Stuhmcke Introduction The impact of biomedical innovation The law of torts Succession and equity and trusts Child protection laws Criminal law Patent law Cloning Conclusion Chapter 4

Developmental Science, Child Development and the Law

Jeanette A Lawrence and Agnes E Dodds Introduction A developmental science perspective Questions and directions Applying this developmental perspective Conclusion Chapter 5

Child Maltreatment

Judy Cashmore and Briony Horsfall Introduction Defining child maltreatment Prevalence and incidence of child maltreatment in Australia Understanding the risks associated with child maltreatment

Adverse impacts of child maltreatment for children, adolescents, and adult survivors Protective factors and preventing child maltreatment Conclusion Chapter 6

The Child, the Young Person and the Law

Anna Copeland and Jo Goodie Introduction The governmentality approach The child The ‘adolescent’ young person Conclusion

Part II Chapter 7

Children and Public Law Issues The Criminal Responsibility of Children

Thomas Crofts Introduction How the law operates Rebutting the presumption Criticisms of the presumption Conclusion Chapter 8

Young People and Juvenile Justice

Chris Cunneen Introduction The legislative framework Police The children’s court Drug courts Diversion and restorative justice

Conclusion Chapter 9

Protecting Children from Abuse and Neglect

Allison Silink Introduction Historical context Legislative and policy framework for child protection Conclusion Chapter 10

E-Safety: Protection of Children from Cyber-bullying, Sexting and Privacy Invasion

Normann Witzleb and Thomas Crofts Introduction Cyber-bullying Sexting Privacy invasion Conclusion Chapter 11

Migrant and Non-Citizen Children

Mary Anne Kenny and Mary Crock Introduction Migrant children and the right to family life Children and humanitarian migration Migrant children and immigration enforcement: The detention cases Migrant children and access to citizenship Conclusion Chapter 12

Education of Children — Preschool to Secondary Education

Joan Squelch Introduction Early childhood education Primary and secondary education

Conclusion Chapter 13

Aboriginal and Torres Strait Islander Children’s Welfare and Well-being

Terri Libesman and Kyllie Cripps Introduction The legacy of the past A human rights approach to Indigenous children’s well-being Bringing Them Home Australian child welfare reform The NT Intervention/Stronger Futures and cashless welfare Case study: Manitoba Historic Canadian Human Rights Tribunal decision Conclusion Chapter 14

Compensation for Survivors of Institutional Child Sexual Abuse in Australia: Tortious Rights and Challenges for Reform

Allison Silink and Pam Stewart Introduction Statutory limitation periods and historical child abuse Is there a ‘legal person’ defendant with assets to meet a claim? Available causes of action in tort Australian developments Victorian Government’s Betrayal of Trust report — recommendations and implementation Conclusion

Part III Chapter 15

Children and Private Law Issues Children and ‘Family Law’

Lisa Young

Introduction Statistical background Who is a ‘child’ and who is a ‘parent’? The rights of children and the obligations of parents Court versus private resolution of parenting disputes Principles for resolving parenting disputes Forced marriage of children Financial support of children Conclusion Chapter 16

Adoption

Geoffrey Monahan and Jennifer Hyatt Introduction Background Regulation of local (and known child) adoption Adoption of ‘known’ local children Consent to adoption Discharge of adoption orders Access to adoption information Intercountry adoption Conclusion Chapter 17

Surrogacy

John Pascoe Introduction Defining surrogacy Australian laws and regulation Difficulties faced by the federal family courts International human rights and surrogacy Conclusion

Chapter 18

Medical Treatment

Brenda McGivern Introduction Children as recipients of duties Decision-making The role of consent at common law ‘Capacity’ and ‘competency’ Children’s capacity to make medical treatment decisions Parents’ capacity to make medical treatment decisions for children Jurisdiction of the courts Conclusion Chapter 19

Civil Liability of Children

Geoffrey Monahan Introduction Part A: Contractual liability Common law Minors’ contracts in New South Wales Minors’ contracts in South Australia Conclusion Part B: Liability in tort Intentional torts Negligence Contributory negligence Conclusion Chapter 20

Children and Succession

Kay Maxwell Introduction Wills

Estates Conclusion

Part IV Chapter 21

Children in Court Child Witnesses

Judy Cashmore Introduction The dynamics of child sexual abuse and its prosecution Prevalence of trials relating to child sexual abuse The law relating to children’s evidence Particular challenges facing child witnesses Reforms/changes in law and procedure to assist child witnesses Conclusion Chapter 22

Legal Representation of Children

Nicola M Ross Introduction Developments in the legal representation of children Models of representation Representation in family law Representation in care and protection law Representation in criminal law Approaches to children’s competence Communication skills, knowledge and commitment Specialisation and principles Conclusion Appendix: Practical Scenarios PSc.1: Criminal Record Scenario PSc.2: Sexting Scenario

PSc.3: School Suspension Scenario PSc.4: Forced Marriage Scenario PSc.5: Medical Scenario PSc.6: Contract Scenario Index

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Part I Children in Context

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Chapter 1

Children and the Law: An Historical Overview Judith Bessant and Rob Watts

Introduction 1.1 Children under 12 and young people (aged 12–25) remain one of the most regulated groups of people in Australia. Compared with most other Australians, children and young people are subjected to extensive webs of legal regulation and statutory governance. These regulatory practices are typically defended on the grounds that they promote the development of children and young people and protect them from various harms. From the day of birth infants, for example, are repeatedly weighed, measured, inspected and inoculated by a variety of health officials. From the age of five, all children are required by law to attend school until they are at least 16, or in some states 18. There is a large body of legislation preventing children and young people from working, gambling, smoking, drinking alcohol, accessing certain information and so forth. Using statutory definitions of age, children and young people can be and are banned from public spaces or subject to curfews preventing them from being on the street at certain times. They may be prevented from speaking publicly, assembling in public spaces, seeking paid employment, giving consent to surgery or other medical interventions, or enjoying a right to privacy. Equally, children and young people can be

subjected to forms of physical assault — defined as parental or teacher discipline — which, if committed against other citizens, would constitute criminal assault. In October 2015 children as young as 14 became subject to control orders when the Turnbull Government amended the Anti-Terrorism Act (No. 2) 2005 (Cth) to give federal courts the power to unilaterally make control orders under Div 104 of the Criminal Code in response to a request from the Australian Federal Police (AFP). This heightened longstanding concerns about the breach of basic human rights, and the ex parte nature of interim control order hearings.1 1.2 Whether we can accept the argument that this promotes the flourishing of children and young people, or not, is another question. Certainly one paradoxical effect [page 4] of this well-intentioned labyrinth of rules and regulations is that too many children and young people have been placed at risk of serious harm by the very institutions ostensibly established to promote their well-being. This point has been made in a spate of official inquiries, including the Royal Commission into Institutional Responses to Child Sexual Abuse (2013–) (see Chapter 9) and many official inquiries into child protection systems. If that is not paradox enough, the failure of Australian governments to give effect to the United Nations Convention on the Rights of the Child (1989) means that Australia’s children lack many basic legal protections, entitlements and human rights associated with being a citizen, many of which have long been taken for granted by most other groups.2 Most young people, for example, are denied fundamental rights such as the right to have a say in decision-making that directly affects them. Governments also routinely develop and apply discriminatory legislation to young people. For example, the Federal Government, under the leadership of then-Prime Minister John Howard,

passed legislation in 2001 making it lawful for employers to discriminate against young employees on the basis of age. The ‘youth wage’ ensures that many young people do not receive equal pay for equal work. All other age groups are protected from such discriminatory practices. The Fair Work Commission reaffirmed the principle of a junior wage rate as recently as 2016.3 It is worth recalling that this policy was justified on the basis of the same arguments used decades earlier to deny women equal pay for equal work (young people, it was said, lack the abilities, experience and skills adults possess, plus they are dependent and can, therefore, survive on a very low income). 1.3 This mix of statutory controls and non-legal practices reflects what many people believe to be the normal and proper treatment of young people and popular understandings of what it is to be a child or young person. In legal terms, this means that, until a certain age is reached, children and/or young people are deemed to lack the capacities to reason and to distinguish right from wrong that adults are presumed to possess. These intellectual and ethical capacities are presumed to be naturally associated with being a fully developed human being — which entitles a person to be treated as a citizen with rights or entitlements. 1.4 Different jurisdictions define the age of legal responsibility for one’s actions differently, but this principle is a crucial aspect of the development of the legal and policy frameworks that affect all children and young people.4 In all Australian jurisdictions, children aged at least 105 but less than 14 years of age are believed to be innocent [page 5] and incapable of a criminal act (doli incapax) unless that presumption is successfully rebutted (see Chapter 7). The negation of the principle of doli incapax depends on whether those who contest it can demonstrate that the

child has the required moral understanding to fully appreciate the significance of a criminal action. The maximum age for the appearance of ‘a child’ in a juvenile or youth court varies across states and territories, with most identifying 18 as the age at which a person is treated as an adult. 1.5 Sitting behind the legal principle of doli incapax are some longstanding and widespread beliefs and stories. The most significant belief is that ‘childhood’ and ‘adolescence’ are natural or biological phenomena, and that childhood and youth are periods of biological and social dependency in the human life cycle. Children and adolescents are deemed by their very nature to be irrational, amoral, vulnerable, naïve, innocent and, therefore, in need of protection. 1.6 While understanding children and young people in this way may seem normal and appropriate, we do not agree. While popular ideas about children and young people and how they are treated has something to do with biology, it has much more to do with our complex webs of meaning, with our cultures and with the way particular communities make sense of children and young people. Western European and Anglo-American communities have long held that, left to their own devices, children and young people are less than fully human and need to be ‘civilised’ or ‘socialised’. Drawing on a relatively new body of research, children and young people have been subjected to waves of what Mitzman called ‘civilizing offensives’,6 discussed below at 1.9ff. It is an argument that helps explain the paradoxical status enjoyed by children today. It is important to note that historically, other groups — such as women, poor or working-class people, ‘coloured’ and Indigenous people, and people with disabilities — have similarly been defined as naturally or biologically inferior on the basis that they lacked the relevant intellectual or ethical capacities deemed necessary for being treated as citizens with rights or for being treated with respect. They too have been subjected to ‘civilizing offensives’.

‘Childhood’ and history

1.7 Our starting point is that the current status and treatment of children and young people is not the consequence of a timeless or natural state of affairs. Adopting an historical framework reveals that the current understanding of children and young people as ‘innocent’ and lacking intellectual or ethical capacities, for example, is not how they have always been understood or dealt with. Contrary to the assumption that ‘childhood’ or ‘adolescence’ are timeless biological phenomena, our understanding of childhood and adolescence can only be understood as a consequence of social processes that have a history. [page 6] While childhood or adolescence have certain biological aspects, historians since Phillipe Ariès’ book Centuries of Childhood 7 have shown that what we call childhood or adolescence is a product of specific historical patterns of beliefs. These are beliefs connected to expert knowledge and social practices produced by people working in institutions such as churches, schools, medicine, the media and the law. An historical imagination helps in understanding how children and young people have come to be the kind of people who have the moral and legal status they have today. 1.8

Here we ask just two questions:

1. How have we come to know and to treat young people and children in the ways so many of us take for granted? 2. What role has the law played in creating the present circumstances of children and young people? We begin with the first question, which could also be phrased: how have our contemporary ideas about children and the ways they are treated come about?

Childhood and the ‘civilizing offensive’

1.9 In Centuries of Childhood, Ariès provided an account of the cultural and social shifts that took place in early modern times (in the 16th and 17th centuries) as middle-class families in Britain, America and Europe discovered or invented childhood. He pointed to a relationship between the discovery or invention of childhood, as a special phase in the life cycle, and the evolution of a vast array of professional practices and institutional developments in the West that created the contemporary state of childhood. Ariès showed how the modern Western concept of childhood emerged slowly and fitfully across a period from late medieval times into the early 19th century. He demonstrated that, until the modern period, children and young people were generally treated as ‘little adults’ who were fully involved in the life of their community. For example, they were expected to make an economic contribution to their family and community by way of their labour. Monarchs and noblemen as young as 12 also led armies into battle. 1.10 The making of our modern conception of ‘childhood’ was not a uniform, regular, steady or inevitable process. The category of childhood involved making new and sharp distinctions between children and adults — a distinction predicated on a belief in the innocence and vulnerability of children. This distinction marked an epochal shift and required a considerable creative reworking of lived experience accompanied by increasing sentimentalism and fantasy about children. Against all the evidence, children increasingly were also deemed to be non-sexual, irrational, naïve, vulnerable, innocent, natural, simple and uncomplicated beings. In the course of this dramatic shift in sensibility and the treatment of children, they were defined anew as dependent beings, in need of protection and requiring segregation from adult ways. Most importantly, this involved the delaying of adult responsibilities. 1.11 Central to this shift in understanding and rearing children was the proposition that each child should have a ‘childhood’. Having a childhood meant children needed

[page 7] to be segregated and protected from adult activities such as employment, sex, alcohol, gambling, etc. Indeed, being a child and having a childhood came to be defined by contrast with the world of adults and whatever defined the adult experience. 1.12 It is now generally acknowledged that if Ariès did not always get everything right, the 18th and 19th centuries did see the emergence of new ideas about childhood.8 The consolidation of these ideas would not have been possible in the 19th century without the work of writers (such as Charles Dickens) and the interventions of ‘child-savers’, who crafted a sentimental cult about little children suffering in a world of abusive adults. The first generations of child-savers included religious activists, charity workers, and reforming politicians and intellectuals who initiated a kind of social movement after the 1840s. These child-savers were determined to protect children from the physical, social and moral dangers found in the adult world and so preserve their innocence, dependency and vulnerability. This was the origins of a process that Mitzman and others call the ‘civilizing offensive’. The argument that we can and should write a history of the ‘civilizing process’ was first made by Elias (1994).9 He argued that we see in western European history over the last millennium, a long-term ‘civilizing process’ involving the gradual internalisation of external, social constraints (such as the use of violence, or threat of violence, monopolised by the state in the moulding of self-discipline).10 As a result, Elias argued that people came to exercise greater control over their impulses, which were ‘built’ into the personality structure of individuals, and so were better able to act in a more rational and calculated fashion. 1.13 Elias’ work generated a substantial, broadly interpretive socialhistorical literature. Dutch and English writers radicalised Elias’ work as they developed the idea of a ‘civilizing offensive’, or Beschavingsoffensief.11

As highlighted by Max Weber, this idea refers to an attack on behaviour presumed by those in authority to be ‘immoral’ or ‘uncivilized’.12 In short, the ‘civilizing offensive’ involves efforts by states drawing on the rationalisation and centralisation of state power.13 The Australian case of child-removal practices targeting people of Aboriginal and Torres Strait Islander descent that was central to policy and legal processes across much of the 20th century is an example of one kind of ‘civilizing offensive’. Australians who observed the implementation of the Northern Territory ‘Intervention’ in 2006–07, targeting ‘dysfunctional’ remote Aboriginal communities, will remember [page 8] how this involved the use of military personnel to enforce what was described as ‘welfare policy’.14 1.14 Considerable historical research has demonstrated how children and young people became the object of persistent exercises in ‘civilizing’ them across the 19th century.15 It was an exercise that began as part of the childsaving movement through the 19th century. It evolved into a complex jigsaw of institutional, moral and professional practices that have persisted into the 21st century: today’s youth workers, child psychologists, criminologists, social workers and teachers continue working in the shadow of 19th-century childsaving.16 According to this evolving discourse of ‘childhood’, young people had to be ‘protected’ by being prevented from engaging in adult activities, such as working for an income, sexual activities, gambling, drinking alcohol, smoking, and in general spending too much time on the streets. They needed to be rendered safe — either by being sequestered in the home or by being institutionalised in child-only spaces monitored by adults, such as schools, crèches and kindergartens. The new ‘normalised’ innocence of childhood becomes apparent when reading of the horror of child-saver Mary Carpenter,

when she discovered the sheer number of ‘delinquents’ — that is, children who worked for a living — in London: [The young delinquent] exhibited in almost every respect qualities the very reverse of what we should desire to see in a child; we have beheld them independent, self-reliant, advanced in the knowledge of evil.17

By implication, a ‘good childhood’ was signified by dependence, virginal innocence and vulnerability. It is not surprising that the child-savers turned early and often to the law to advance their project.

The state, law and childhood 1.15 Sociologists and legal scholars have long understood that if we are to understand ‘the law, we need to better understand how it reflects and shapes the social relationships, dominant ideas, values and ways of living within a given society or community. It may seem that the legal or justice system in our large and complex society is one among many social mechanisms that regulate human conduct. Families, churches, workplaces, hospitals, neighbourhoods and the media all intervene in [page 9] various ways. However, because the law draws on the power of the state to secure compliance, it tends to play a larger role than other institutions. In our society, that power resides in institutions central to modern government, such as parliaments and public bureaucracies, which use their control of economic power (like tax revenues) and coercive resources (like the courts and police) to define and then regulate a variety of collective and individual ideas about what is good and what is bad. The power of the state and its lawmaking activities, including the power to criminalise, has been indispensable to the way that the status of children and young people has been transformed

over the past two centuries. Yet this factor has not always been clearly acknowledged. 1.16 Pierre Bourdieu is one contemporary theorist keen to argue that the state in some ways is an ‘unthinkable object’. Concerned about the ease with which we can become trapped in webs of conventional thinking, Bourdieu warned that we risk applying to the state a ‘state thinking’ where: ‘our thinking, the very structure of consciousness by which we construct the social world and the particular object that is the state are very likely the product of the state itself.’18 The state, according to Bourdieu, needs to be approached first as ‘a principle of production of legitimate representation of the social world’.19 This is because the state is defined by Bourdieu as the possession of the monopoly of legitimate physical and symbolic violence. For Bourdieu, the monopoly of symbolic violence is the precondition for the exercise of the state’s monopoly of physical violence. In this way, Bourdieu enlarges Max Weber’s definition of the state as ‘the monopoly of legitimate violence’. On this basis, Bourdieu proposes that the state is ‘the principle of orthodoxy’ — ‘a hidden principle that can be grasped in the manifestation of public order. This, says Bourdieu, is because the state ensures as far as possible ‘logical conformity’ and ‘moral order’.20 By ‘logical conformity’, Bourdieu means the state tries to ensure there is some degree of consensus about the categories of thought people use in a society, enabling some immediate agreement about perceptions involved in the construction of reality. Moral order involves agreement about certain basic moral values. While Bourdieu is right to point to the normalising effects of the state when it promotes ‘logical conformity’ and ‘moral order’, we cannot overlook the complex interplay between state and non-state institutions, such as the media, families, churches, business entities, trade unions, professions and so forth. When we look at the historical process designed to make children and young people conform to a set of ideas about ‘childhood’ and ‘adolescence’, we can observe the interplay between state and non-state institutions. The present

morass of legal guidelines and legally enforced practices is a consequence of longstanding and persistent efforts by reformers, experts and professionals working in various state and non-state institutions — such as the health care, justice and educational systems — to regulate the lives of children and young people. [page 10] 1.17 In what follows, we explore just a few dimensions of this complex interplay between the Australian state, the legal system and ideas people have held about children/childhood and later of young people/adolescence. We explore several kinds of legal interventions that have helped construct childhood and adolescence, including attempts to make children attend school, to define child welfare and to deal with Indigenous children.

Inventing childhood: schooling 1.18 The origins of modern Australia take us to 1787 when 1030 British military personnel and convict men, women and children sailed more than halfway around the world in 11 ships. After a journey lasting nine months, the First Fleet took possession of land deemed at the time to be terra nullius (empty land), and established the colony of New South Wales. Five other colonies — Tasmania (1804), Western Australia (1828), South Australia (1837), Victoria (1851) and Queensland (1859) — were later established. These colonies came together in 1901 to establish the Commonwealth of Australia. Since we cannot possibly trace the legal history of each colony or state in a short chapter, we mostly focus on one jurisdiction (Victoria) to illustrate the way the law has been used to regulate the lives of children and young people. 1.19

The Australian colonies were established at a critical time in the

genealogy of childhood. In the making of childhood, schooling became a key institution where children could be guaranteed to have a childhood. As modern ideas about childhood gathered momentum, the law was enlisted to secure and protect the core idea of childhood. Child-savers set about removing children from the streets and factories of the cities. A central ambition of the child-savers was to ensure that every child had a childhood. This meant the passage of laws outlawing certain kinds of child labour. Successive waves of reform legislation were passed in the various colonies excluding children from the factories and mines, and the streets where they had worked as newspaper sellers. During the 19th century, children were rendered economically and socially dependent. As these child-savers ‘knew’, large numbers of children led unsupervised, unregulated and disorderly lives. Schooling provided the answer: a guarantee of social order. This was another key argument used to make schooling compulsory for all children.

Colonial schooling 1.20 The Age of Enlightenment, which encompassed the 18th century, promoted the idea that schooling was a good ‘civilizing’ process. Shadowing the policies of Britain, all the colonies established schooling systems based initially on the premise that schooling ought to be a voluntary matter. The various colonial administrations provided capital to build schools, as well as subsidies to private, secular and church-run schools to pay teachers. The colonial governments also established state-run schools to meet the needs of ‘the lower classes’. Governments then tried to regulate the hybrid [page 11] system of private and government-run schools through a government-run

educational bureaucracy using a system of inspectors. 1.21 By the middle of the 19th century, pressure was mounting on governments to make schooling compulsory. Inquiry after inquiry revealed that fewer than half of the children in Australia were getting any schooling. In Victoria, for example, the Higginbotham Royal Commission of 1867 showed that of the 170,000 school-age children in Victoria, only 76,000 were regularly attending school.21 By the 1860s and 1870s, it had become an article of faith among the increasingly confident professional and liberal middle classes, and among working-class Australians, that ‘everyone’ had a right to attend schools provided by the government. Compulsory schooling promised to address the problem of social disorder by bringing all children into spaces where they would be properly regulated by adults. Advocacy for ‘secular, free and compulsory’ schooling also pointed to ‘the growing numbers of poor’ and the idea that ‘our population’ was quickly degenerating morally, physically and socially. Education, it was argued, promised to prevent or at least arrest the otherwise unfettered growth of an ‘urban criminal class’ by instilling into children the virtues of being law-abiding, hard-working citizens. One inspector in 1869 made the point that only schooling would combat the evils of larrikinism.22 1.22 The 1870s and the decades that followed saw a succession of colonial legislation that made schooling compulsory in Australia. New South Wales led the way with the passage of its 1871 Education Act. Victoria followed suit in 1872, South Australia in 1875, Queensland in 1879, Tasmania in 1885 and Western Australia in 1896. The Victorian Education Act was exemplary. In spite of vehement opposition from the churches, the Act established a Ministry of Education to provide for a system of legally compulsory attendance by all children at either church-run schools or the new state schools. In the state schools, the teachers were to be paid by the government, teach approved curricula and be subject to regular inspection.

As historians of education have pointed out, the introduction of this legislation was the start of a long struggle by governments, the education bureaucracy and the burgeoning army of related experts, including teachers and social scientists, to turn the idea of compulsory education into a reality.23 1.23 In the cities and in rural Australia, many working-class families resisted the compulsory aspect of education. This was in part because of the importance of children’s labour for maintaining the family economy. Carrying buckets of water for bathing, making beds, washing the floors, laundry and cooking were all part of their duties, and hard work affected school attendance. Many parents saw little practical value in their children learning to read, write or do arithmetic and opposed the [page 12] practice of sending their children to school because their children’s labour contributed to the household income and in many cases was crucial for the survival of the family. The invention of compulsory schooling was one way statutory law was used to flesh out the idea of ‘childhood’. Statutory law was also used to define and regulate ‘juvenile delinquency’, ostensibly with a view to protecting the ‘welfare’ of the child or young person, as well as the ‘safety’ of the community.

Child welfare or juvenile justice? 1.24 From the mid-19th century, all Australian governments legislated to secure the welfare of children by defining the circumstances in which children needed to be protected from neglect or abuse. From the outset, this legislation blurred the distinction between neglect/abuse of children and criminal conduct by children, by also allowing for the criminalisation of young people’s conduct: see 1.26ff. In Victoria, this began in 1864 with the

Neglected and Criminal Children’s Act. This initial exercise set loose an ongoing process of legislative regulation that has continued unabated into the 21st century.24 There are now some 47 major national and state/territory statutes dealing with child welfare and juvenile justice. In Victoria alone, the Children and Young Person’s Act 1989 was amended 43 times between 1997 and 2005 before it was replaced by the Children, Youth and Families Act 2005, which was in turn subjected to major amendments in 2014.25 1.25 The interest in child welfare was driven by middle-class Christian evangelical social reformers determined to stamp out vice, ameliorate the excesses of poverty and promote social order.26 In the course of promoting the myths of childhood, the child-savers confused ‘juvenile justice’ and ‘child welfare’. The conflation of ‘child welfare’ and ‘social order’ reflected a mixture of class-based, gendered and racialised prejudices. The resulting system of laws and policies had little to do with any commitment to secure either justice or welfare for children — especially if that entailed asking what children and young people might want themselves. In the confusion between pursuing the ‘welfare’ of the child and the ‘welfare’ of the community, the children both of the colonists and of Aboriginal and Torres Strait Islander people were subjected to coercive child removal policies which exposed them to physical violence, sexual abuse and emotional trauma. Of course, some27 justified the practices of child [page 13] welfare by appealing to prevailing community standards while making the spurious claim that the parents of these children supported the ‘welfare’ system.

Treatment of poor children

1.26 Victoria’s Neglected and Criminal Children’s Act 1864 was the product of a decade of debate in the colony of Victoria about what to do with children and young people of the poor who were attracting official and public concern. The fantasies about ‘childhood’ intersected with other fantasies about poverty. The colonial elites, like the ruling classes of Britain, believed that poverty was a moral failing grounded in individual laziness and a lack of self-discipline or thrift. 1.27 In Britain, that view produced the New Poor Law Act 1834, which created a system of poor relief designed to punish those not working for a living by incarcerating them in prison-like work houses. Like the other colonies, Victoria did not imitate the institutions of Britain’s punitive Poor Law. However, the underlying beliefs and values of that system were vigorously upheld, beginning with a distinction being made between the ‘deserving poor’ and the ‘undeserving poor’. Colonial governments encouraged and subsidised well-off philanthropists to establish charities to provide food, rental assistance, clothing or even cash to the ‘deserving poor’. This system seemed to offer something for everyone. The wealthy citizens could exercise their responsibility for the less well-off and win kudos for their philanthropic spirit. The state managed to limit its financial burden to the modest outlay required to support the administration of the charity system. 1.28 This system, and the values and prejudices that underpinned it, mapped readily onto the problem of ‘poor children’. In the 19th century, it was taken for granted that there were three classes of neglected children. Two were acceptable targets for philanthropic and charitable care; namely, the children of thrifty, working-class people who through no fault of their own were in distress, together with the ‘respectable’ orphans and children of ‘respectable’ families who were the victims of misfortune. The third group were the mass of uncontrolled, abandoned, orphaned and runaway urchins, frequently the children of the ‘undeserving poor’ — the drunks and nohopers, the criminals and prostitutes. It was this last group that so upset the respectable citizens of Melbourne

who were affronted in the mid-1850s by the sight of ‘youthful Bedouins [on] our streets [living] in a condition of nomadic wildness’.28 As the 1857 Select Committee on Penal Discipline reported, poor and deserted children were treated as vagrants under the Vagrancy Act 1835 (NSW), along with women, the sick, the mad and the elderly — all being subject to arrest by police who used the prisons as last-resort accommodation.29 [page 14] The 1861 Royal Commission report on charities and municipalities established new ways of thinking about ‘neglected’, ‘vagrant’, ‘uncontrolled’ and ‘delinquent’ children. The Royal Commissioners insisted the state had to intervene. If the state had assumed responsibility for policing and education, the Commissioners saw no reason why it should not also assume responsibility for neglected children.30 1.29 The Neglected and Criminal Children’s Act 1864 (Vic) defined the targets of the policy as both ‘neglected’ and ‘criminal’ children. A ‘neglected child’ was any child ‘found begging or receiving alms’, or ‘wandering about or frequenting any street, or public resort or sleeping in the open air’, as well as children who lived in a brothel or with a person ‘reputed to be a thief, prostitute or drunkard’ or a convicted vagrant. The ‘criminal child’ was any child who was convicted of an offence ‘punishable by imprisonment’ (but who might benefit from being sent to an industrial school). The Act also established systems of industrial and reformatory schools, which were prison schools for children. This saw the state and charities establish and run the new training ‘schools’, a feature that has defined the Victorian partnership approach to child welfare ever since.31 The Neglected and Criminal Children’s Act conflated the problem of destitute and poor children with the problem of criminal children and handed it all over to the police and the magistrates courts. It thereby

established a continuing confusion between ‘neglected’ and ‘criminal’ children that produced, as Donna Jaggs32 has argued, much convoluted legislation and programs that oscillated between the drive to incarcerate and the drive to intervene in the family — the primary site in which childhood was supposed to be nurtured and flourish. Finally, the Act also established a potent institutional network. It created a longstanding statutory framework of child welfare based on a partnership model between the Victorian Government and a variety of church and charitable agencies. The government ran the Royal Park Depot for state wards, while the voluntary sector ran orphanages and ‘training institutions’ such as the Salvation Army reformatory school at Bayswater. (In the latter half of the 20th century voluntary organisations also began running youth refuges). For most of the 20th century there was little direct government control or supervision of these private institutions. In Jaggs’ words they provided: a changing and uncoordinated range of residential services including some institutions which resembled single sex boarding schools some of which took children of both sexes, a few cottage homes, institutions for difficult adolescents, maternity homes, babies homes, and a few establishments for physically and mentally handicapped children.33

It was within this burgeoning system of child welfare that new ideas about ‘adolescence’ were to grow and flourish. In the legal domain, this saw a mobilisation [page 15] of the law to give effect to these new ideas. By the start of the 20th century, the new framework for thinking about adolescence was already in sight.

The invention of ‘adolescence’ 1.30

While it may oversimplify matters, we can argue that ‘adolescence’

was ‘invented’ as a phase in the life cycle in the early 20th century. This involved extending the presumptive dependence of childhood into what later came to be known as the ‘teen’ years. Adolescence was increasingly recognised as having special qualities that affected the way young people were thought about and treated. 1.31 Adolescence emerged from a complex mix of ideas and institutions. It is now generally acknowledged that G Stanley Hall provided the most influential account of adolescence. Hall was the founding father of American psychology and a child studies expert at the beginning of the 20th century. In his 1904 book, Adolescence,34 Hall promoted the idea — now taken to be a fact — that adolescence was a precarious stage in the human life cycle, marking the passage from childhood to adulthood. This passage was an insecure and unstable period of transition and adjustment in preparation for adult life. Based on little evidence, Hall argued that the turbulence resulted from the hormonal, physical and emotional changes raging through the adolescent’s body and running up against society’s rules. Adolescents, although fully sexually developed, were prohibited from giving expression to their sexual urges because that was reserved for adults. From this story of conflict between biological imperatives and social norms, Hall argued for the need for young people to control their sexuality for a decade or more because it created trouble for the adolescent and for those around him or her. Adolescents, he argued, are naturally angry, confused, turbulent and troublemaking people. This was a view that reinforced the point that sexual expression for ‘teenagers’ was taboo: they were neither balanced nor mature enough to accept adult responsibilities required to be sexually active. 1.32 Through the 20th century, the idea that the adolescent is naturally irresponsible, emotionally unstable, rebellious, difficult and deviant has been recycled endlessly by generations of social scientists. It is now widely held to be a basic truth by most adults. Secondary school teachers, for example, regularly talk about the middle years in secondary school as pure hell. In like fashion, decades of developmental psychology has established as a ‘scientific

fact’ that young people are emotionally, ethically and intellectually less competent than adults. In suggesting this is a prejudice, we are not arguing that the emotional, cognitive or ethical experiences of young people are always or necessarily the same as adults. Our point is that professionals and experts have treated any differences as signs that adolescents are deficient and/or inferior to adults. (This interpretative frame parallels the way black people and women were formerly seen from a white, male view of the world that treated any differences as evidence of inferiority or defective capacity.) [page 16] 1.33 The imposition of the discourse of ‘adolescence’ on top of the older ideas about ‘childhood’ produced clear policy effects by the start of the 20th century. For example, governments began establishing special children’s courts to deal with young people. Victoria established its Children’s Court in 1905.35 As Donzelot observed, the invention of children’s courts abolished the public scrutiny typical of the adult criminal justice system and protected the privacy of the family.36 However, it also opened up the way, via the establishment of a parole system, to exposing the family of ‘the delinquent’ to continuing surveillance by charitable committees, and later to an army of social workers, psychologists, teachers, probation officers and the like. Just as the law was enlisted to promote a view of children and adolescents as being naturally inferior to adults, it has been persistently used to manage the regulation of Indigenous people. Complementing the legal doctrine of terra nullius to justify the dispossession of the Aboriginal and Torres Strait Islander people’s lands, the legal system was also used to strip large numbers of their children away from their families.

Stolen generations

1.34 The intersection of Indigenous children and the law is covered in detail in Chapter 15. However, a consideration of the Australian history of the legal treatment of children would not be complete without some reference to what has come to be known as the ‘stolen generations’. In 1997, the Human Rights and Equal Opportunity Commission (HREOC) report Bringing Them Home37 found that generations of young children of Aboriginal, Torres Strait Islander and mixed descent had been coercively removed from their families. The removal of Indigenous children had its origins in attempts to deal with the ‘native problem’. The history of how ‘native welfare’ policy developed to deal with Indigenous children and young people points to another way in which equal measures of fantasy, malice and good intentions combined to produce human pain and distress in the name of welfare.

Protecting indigenous children 1.35 The presence of Indigenous people in an ostensibly vacant land proved to be an enduring problem for colonial policy makers in Australia. Introduced diseases and settler violence set loose a demographic catastrophe in the colonies of Tasmania, Victoria and New South Wales. (By 1906, the total population of Victorian Aborigines had declined to about 250, from the estimated 7500 of 1835.) One response to the early evidence of the catastrophe was the decision taken in 1837 by the new colonial administration in Melbourne at the behest of the British Colonial Office to establish the [page 17] Port Phillip Aboriginal Protectorate. This was the first such protectorate in Australia. It appointed official Protectors whose job was to locate and count

Aborigines and bring them under the protection of the government.38 This policy led to the establishment of nine Aboriginal stations and reserves between 1839 and 1861 to ‘protect’ the Aborigines in Victoria. By 1849, a Special Committee of the Legislative Council had concluded that Aboriginal protection was a failure and that the Aborigines were fast dying off. The state returned to the fray in 1860, authorising the establishment on a voluntary basis of a Central Board to Watch Over the Interests of Aborigines, which established Aboriginal reserves and indirect control of missions, and appointed 48 local guardians. These arrangements were formalised in 1869 with the passage of the Board for the Protection of Aborigines Act 1869 (Vic) creating a government agency that lasted until 1957. This Act provided the board with the power to make regulations for the ‘the care, custody and education of the children of Aborigines’. Section 13(v) (custody of children) specified that ‘[t]he governor may order the removal of any Aboriginal child neglected by its parents, or left unprotected, to any place of residence specified in regulation 1, or to an industrial or reformatory school’. Regulation 1 gave officials the power to make children ‘attend schools and reside and take their meals and sleep in any building set aside for such purposes’.39 Two decades later, amending legislation (the Aborigines Protection Act 1886 (Vic)) was passed to force the absorption and dispersal of young Aborigines and especially ‘half-castes’ into white society, and gave wide powers for the transfer of any ‘half-caste’ child being an orphan into the care of the state. 1.36 Although the details of the legislation passed between the 1860s and 1915 to ‘protect’ Indigenous people varied from state to state, there were common features. These included the use of racial categories. The 1912 Report of the New South Wales Aboriginal Protection Board reported that of the 7000 Aborigines in New South Wales, fewer than 2000 were ‘full bloods’. As the board noted, the ‘number who are half-castes, quadroons and octoroons are increasing with alarming rapidity’, something which its members viewed as ‘an injustice to the children themselves and a positive

menace to the State’.40 Most of the Aboriginal Protection Boards in the various states used their far-reaching powers to restrict the movement of Indigenous people, either by ordering them from white towns and land, or by keeping them on reserves or in designated regions which they were forbidden to leave. Equally, white access to these reserves and regions was tightly regulated. Under these protectionist regimes, Aborigines could not vote or own property. In some cases they were forbidden to marry, seek employment or be paid wages without explicit permission from the relevant agency. [page 18] 1.37 By the early 1920s, the authorities had untrammelled authority to take children from their families. In 1915, the New South Wales Aboriginal Protection Board, for example, decided it needed the power to separate children from their parents even if there was no issue or evidence of neglect. As the board explained: ‘Past experience has shown that the [half-caste] children cannot be properly trained under their present environments, and it is essential that they should be removed at as early an age as possible to ensure success.’41

Assimilation 1.38 Racist policies affected large numbers of ‘part-Aboriginal’ children over the first 60 years of the 20th century.42 In the context of the ‘benevolent pessimism’ about the ‘inevitable’ death of the ‘Aboriginal race’, policy makers in that period discovered or constituted a problem requiring the removal of ‘half-caste’ children from their families. The result of this ‘discovery’, as Andrew Markus observes, was that: the forcible removal of children was regarded as a matter of course and did not provoke controversy in the world of white Australians. Removal was said to be in the best interests of the

children and of minor significance for the mothers.43

In the 1930s, fears of an explosion in the ‘half-caste’ population informed a new policy emphasis involving a shift from ‘protection’ to ‘assimilation’. Biological assimilation became the dominant idea among the key Aboriginal protectors in the 1920s and 1930s based on the premise that: ‘half-castes almost without exception are more degraded than the blacks for they have the evil tendencies of both black and white intermingled and intensified.’44 1.39 In the post-1945 period, the policy of assimilation was pursued with vigour and conviction. It gave rise to an effective policy of segregation linked to the enforced removal of children from their parents and their placement in state- or church-run homes.45 1.40 As to the numbers of children caught in these child removal policies, it is hard to be precise. One problem is that the bureaucratic files that might be drawn on to clarify this question have been destroyed. Drawing on Australian Bureau of Statistics research, Robert Manne suggests that at least 20,000 to 25,000 children of mixed descent were forcibly removed from their families and placed in state-run institutions, missions or fostered out to white families between 1910 and 1970.46 [page 19] 1.41 As the HREOC report Bringing Them Home47 indicates, the policy of child removal was profoundly disturbing. HREOC made a good, if controversial, case for treating it as a policy with genocidal overtones. The denial of Indigeneity, deceit about the whereabouts of parents and children by authorities, economic exploitation, and physical and sexual abuse became an all-too-common experience.48 Attempts to acknowledge and repair the damage done to Aboriginal and Torres Strait Islander communities remains one of the intractable policy problems in contemporary Australia. Parallel issues accompany contemporary attempts to understand better the

history of child welfare policies with a view to overcoming the longstanding prejudices about children and young people that prevent them from being accorded their just measure of rights and respect.

Conclusion 1.42 One thing that has altered little is the persistent and prejudicial idea that young people lack the capacities adults are presumed to possess, and that it is right and proper that they not be treated as full citizens. Here we see an unfortunate affinity between current trends such as ‘globalisation’, neo-liberal policies and what Sassen pointed to as the practice of expulsion.49 1.43 The dynamics of globalisation and neo-liberal economic restructuring have combined to extend the social conditions of dependency for young people. The majority of young people have been systematically removed from the full-time labour market since the early 1980s, while their participation rates in education and training has increased. What was once understood as adolescent dependence has been extended into early adulthood. In 2015, 27 per cent of people aged 20–34 were living in the parental home. This encouraged proposals to extend the mandatory school leaving age to 18 in some states/territories. The prolongation of education has seen changes to income support policies that have literally abolished the category of ‘youth unemployment’, because those under 18 years of age were deemed no longer eligible for unemployment benefits. In this respect, the reframing of state policies under the aegis of neo-liberalism has not meant any reduction in the power or reach of the state. As writers like Wolin and Hibou observe, the apparent privatisation of the state strengthens rather than weakens states and the political elites, enabling state-led projects to continue to shape social relations.50 1.44 This is why the politics of ‘law and order’ populism continue to thwart efforts to promote the welfare of young people. Carlen called attention to the pattern of ‘risk

[page 20] crazed governance’ that now shapes juvenile justice policy.51 Following moral panics about rising crime rates mobilised by elements of the media, governments in Western Australia (1996) and the Northern Territory (1997) introduced mandatory sentencing targeting young and often Indigenous offenders. This legislation resulted in young offenders who had stolen sweets or pencils receiving custodial sentences. As well as breaching common law principles, such as the idea that the punishment should fit the crime, this legislation clearly breached Australia’s obligations under the United Nations Convention on the Rights of the Child (1989) (CRC). It is worth noting that the obligation to comply with the CRC has been acknowledged by the Australian Government as a pertinent international law under the Human Rights and Equal Opportunity Act 1986 (Cth) and subsequent amendments. The Australian Government (through the Attorney-General’s Department) also submits a ‘report card’ to the United Nations on a regular basis detailing the degree to which it believes Australia is compliant with the CRC. 1.45 Popular anxiety about threats to Australia’s security seems to have allowed successive national governments to place large numbers of child asylum seekers in high-security detention centres. According to Agamben, Australia had created a site of legal exceptionality in establishing these centres, extinguishing fundamental legal and constitutional rights in pursuit of what is said to be its national security.52 1.46 While there is a clear trend towards increasing the regulation of young people by legal and extra-legal means, which often deny young people’s basic human rights, it is important to note that many young people themselves (as well as advocates for young people) are challenging these developments. As is well known, Australia is the only modern liberal democracy in the world without a national bill of rights. It is not going too far to say that, just as we have established an unenviable reputation as a ‘welfare

state laggard’, so too we have a reputation as a human rights laggard. In what can be regarded as a basis for optimism, the passage of the Australian Capital Territory Human Rights Act (2004) and the Victorian Charter of Rights and Responsibilities Act (2006) may encourage a more reflective and respectful approach to thinking about and treating children and young people (along with many other groups). 1.47 The need for eternal vigilance is suggested in the ways in which young people continue to be subject to various prejudices and delusions. Through the first decade of the 21st century, some psychologists and youth workers promoted the idea that there is something called an ‘adolescent brain’ and that this explained their ‘risk-taking’ and ‘anti-social’ tendencies.53 Notwithstanding the popularity of this ‘discovery’ there are many good reasons for doubting that young people are biologically destined to be irrational and ‘anti-social’ because their brains are different. It is a claim that relies more on a longstanding prejudice about ‘the adolescent’ and an obtuse form of [page 21] neurological reductionism than good science.54 Moreover, the consequence of acting on such a theory would be to curtail even more severely the rights of young people.55 Yet such prejudices continue to influence law and policy making, and help ensure that many young people continue to be discriminated against. 1.48 The refusal or inability to remember the past also plays its part. Australia’s record of child protection through the 20th century is largely a history of failures to meet a fundamental social obligation; namely, protecting children and young people from abuse and exploitation. During the 20th century many children and young people deemed to be ‘at risk’ were removed from their families and placed in ‘protective care’. Yet the state’s record of

meeting their most basic needs has generally been abysmal.56 In the first decades of the 21st century, Australia’s ‘child welfare’ system has morphed into a ‘child protection’ system. It remains a system open, in 2015, to the same criticisms made in 1900 and in 1950 — that it is poorly coordinated, inadequately resourced and often unable to protect children from significant physical, emotional or sexual abuse.

Further reading Agamben, G, Homo Sacer: Sovereign Power and Bare Life, Stanford University Press, Stanford, 1998. Ariès, P, Centuries of Childhood: A Social History of Family Life, Penguin, Harmondsworth, 1969. Australian Government, ‘Terms of Reference’, Royal Commission into Institutional Responses to Child Sexual Abuse, Canberra, 2013. Bennett, D, ‘The Cubillo and Gunner Cases’ (2000) 44(11) Quadrant 35. Bessant, B (ed.), Mother State and her Little Ones: Children and Youth in Australia 1860–1930, Centre for Youth and Community Services, Melbourne, 1987. Bignell, S, ‘Orphans and Destitute Children in Victoria up to 1864’ (1973) 44 Victorian Historical Magazine 24. Bourdieu, P, On the State: Lectures at the College de France 1989–1992, Polity, Cambridge, 2014, p. 3. Carlen, P, ‘Imaginary Penalities and Risk Crazed Governance’ in Imaginary Penalities, Routledge, Abingdon, 2010, pp. 1–23. Coldrey, B, ‘The Scheme’: The Christian Brothers and Childcare in Western Australia, Argyle-Pacific Press, Perth, 1993. [page 22]

Commission of Inquiry, Report of the Commission of Inquiry into the Abuse of Children in Queensland Institutions, GOPRINT, Brisbane, 1999. Croll, A, ‘Street Disorder, Surveillance and Shame: Regulating Behaviour in the Public Spaces of the Late Victorian Town’ (1999) 24(3) Social History 250. Donzelot, J, The Policing of Families, Pantheon Books, New York, 1979. Flint, J and Powell, R, ‘Civilizing Offensives: Sectarianism and Conduct in the Informalized Spaces of Scottish Football’ in D Burdsey (ed.), Ethnicity and Football, Routledge, Oxford, 2009, pp. 191–206. Foucault, M, Power/Knowledge, Harvester, Brighton, 1980. Frijhoff, W, ‘Elite and Popular Cultures in the Dutch Republic: Notes on the Specific Forms of their Relationship’ in Images of the World, Dutch Genre Painting in its Historical Context, Thames & Hudson, London, 1986. Hague, W, William Wilberforce: A Life, Random House, London, 2007. Hibou, B, ‘From Privatising the Economy to Privatising the State: An Analysis of the Continual Formation of the State’ in Privatising the State, Hurst & Co, London, 2004. Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Commonwealth of Australia, Canberra, 1997. Jaggers, B, Anti-terrorism Control Orders in Australia and the United Kingdom: A Comparison, Research Paper No. 28, 2007–08, Australian Parliamentary Library, Canberra, 2008. Jaggs, D, Neglected and Criminal: Foundations of Child Welfare Legislation in Victoria, Centre for Youth Studies, Coburg, 1986. Manne, R, ‘In Denial: The Stolen Generations and the Right’ (2001) 1(1) The Australian Quarterly Essay 1. Marsh, R, ‘“Lost”, “Stolen” or “Rescued”’ (1999) 43(6) Quadrant 15. May, M, ‘Innocence and Experience: The Evolution of the Concept of

Juvenile Delinquency in the Mid-Nineteenth Century’ in R Dale (ed.), Education and the State, Vol. 1, Falmer Press, London, 1981. Meagher, D, ‘Not Guilty’ (2000) 44(11) Quadrant 11. Mitzman, A, ‘The Civilizing Offensive: Mentalities, High Culture and Individual Psyches’ (1987) 20(4) Journal of Social History 663. Pearson, G, ‘“A Jekyll in the Classroom, a Hyde in the Street”: Queen Victoria’s Hooligans’ in A Mille (ed.), Securing Respect: Behavioural Expectations and Anti-social Behaviour in the UK, Policy Press, Bristol, 2009, 23–40. Platt, AM, The Child Savers: The Invention of Delinquency, University of Chicago Press, Chicago, 1969. Powell, R, ‘The Theoretical Concept of “Civilizing Offensive” (Beschavingsoffensief): Notes on its Origins and Use’ (July 2013) 2(2) Human Figurations 1. Power, P, Amendments to the Children Youth and Families Act 2005-March 2105, Children’s Court of Victoria, 2015, www.childrenscourt.vic.gov.au/amendments-children-youth-andfamilies-act-2005-march-2015/. [page 23] Sassen, S, Expulsions: Brutality and Complexity in the Global Economy, Harvard University Press, Cambridge, 2014. Schlossman, S, Love and the American Delinquent: The Theory and Practice of ‘Progressive’ Juvenile Justice, 1825–1920, University of Chicago Press, Chicago, 1977. Scott, D and Swain, S, Confronting Cruelty: Historical Perspectives on Child Protection in Australia, Melbourne University Press, Melbourne, 2002. Tallis, R, Aping Mankind: Neuromania, Darwinitis and the Misrepresentation

of Humanity, Routledge, London, 2014. Tyler, D, ‘The Development of the Concept of Juvenile Delinquency in Victoria, 1855–1905’ (1982–83) 4 Melbourne Working Papers 34. van Krieken, R, ‘Crime, Government and Civilization: Rethinking Elias in Criminology’ (2006), https://ses.library.usyd.edu.au/bitstream/2123/916/1/crime.pdf (accessed 9 August 2016). Victorian Parliamentary Papers, 1856–57, Vol. 3, Select Committee on Penal Discipline Report. Victorian Parliamentary Papers, 1861–62, Royal Commission to Inquire into Municipalities and Charities Report. Watts, R, ‘Making Numbers Count: The Birth of the Census and Racial Government in Victoria, 1835–1840’ (2003) 34(121) Australian Historical Studies 26. Watts, R, States of Violence and the Civilising Process: On Criminology and State Crime, Palgrave-Macmillan, London, 2016, pp. 76–89. Wolin, S, Politics as Vision, Princeton University Press, Princeton, 2004.

1. 2.

3.

4.

5.

B Jaggers, Anti-terrorism Control Orders in Australia and the United Kingdom: A Comparison, Research Paper No. 28, 2007–08, Australian Parliamentary Library, Canberra, 2008. The only enforceable obligation Australia seems to recognise is the obligation to produce a report each five years enabling the United Nations to periodically monitor Australia’s commitment to promoting and protecting children’s rights. Fair Work Commission, National Minimum Wage Orders, 2016, www.fwc.gov.au/awards-andagreements/minimum-wages-conditions/national-minimum-wage-orders#field-content-1heading (accessed 23 August 2016). One difficulty in being too specific about this state of affairs relates to the diversity of legal jurisdictions in Australia. The six states, the two territories and the Commonwealth all use an inconsistent variety of age markers to define the status of children and young people and their ability to do various things, such as drive a car, drink alcohol or have sex, or to be legally responsible or to move from the jurisdiction of Children’s Courts into the adult criminal justice system. In Australia, across every jurisdiction a child under the age of 10 cannot be charged with a

6. 7. 8. 9. 10. 11. 12. 13.

14.

15.

16. 17.

18. 19. 20. 21. 22.

23.

criminal offence. The upper age limit in the youth justice system is 17 in all states and territories with the exception of Queensland, where the age limit is 16. This means that people aged 18 or older who have been accused of committing an offence will be dealt with under the criminal legislation relating to adults in all jurisdictions except Queensland; in Queensland people over 17 are treated as adults. A Mitzman, ‘The Civilizing Offensive: Mentalities, High Culture and Individual Psyches’ (1987) 20(4) Journal of Social History 663. P Ariès, Centuries of Childhood: A Social History of Family Life, Penguin, Harmondsworth, 1969. S Schlossman, Love and the American Delinquent: The Theory and Practice of ‘Progressive’ Juvenile Justice, 1825–1920, University of Chicago Press, Chicago, 1977, p. 3. N Elias, The Civilizing Process: Sociogenetic and Psychogenetic Investigations, Basil Blackwell, Oxford, 1994. R Powell, ‘The Theoretical Concept of “Civilizing Offensive” (Beschavingsoffensief): Notes on its Origins and Use’ (July 2013) 2(2) Human Figurations 1. R van Krieken, ‘Crime, Government and Civilization: Rethinking Elias in Criminology’ (2006), https://ses.library.usyd.edu.au/bitstream/2123/916/1/crime.pdf (accessed 4 July 2016). H Gerth and C Wright Mills (eds), From Max Weber: Essays in Sociology, Oxford University Press, Oxford, 1946. W Frijhoff, ‘Elite and Popular Cultures in the Dutch Republic: Notes on the Specific Forms of their Relationship’ in Images of the World, Dutch Genre Painting in its Historical Context, Thames & Hudson, London, 1986 pp. 23–40. R van Krieken, ‘The “Stolen Generations” and Cultural Genocide: The Forced Removal of Australian Indigenous Children from their Families and its Implications for the Sociology of Childhood’ (1999) 6(3) Childhood 297. A Croll, ‘Street Disorder, Surveillance and Shame: Regulating Behaviour in the Public Spaces of the Late Victorian Town’ (1999) 24(3) Social History 250; G Pearson, ‘“A Jekyll in the Classroom, a Hyde in the Street”: Queen Victoria’s Hooligans’ in A Mille (ed.), Securing Respect: Behavioural Expectations and Anti-social Behaviour in the UK, Policy Press, Bristol, 2009, pp. 23–40. AM Platt, The Child Savers: The Invention of Delinquency, University of Chicago Press, Chicago, 1969. M May, ‘Innocence and Experience: The Evolution of the Concept of Juvenile Delinquency in the Mid-Nineteenth Century’ in R Dale (ed.), Education and the State, Vol. 1, Falmer Press, London, 1981, p. 113. P Bourdieu, On the State: Lectures at the College de France 1989–1992, Polity, Cambridge, 2014, p. 3. Ibid. Ibid. L Blake, Vision and Realisation: A History of State Education in Victoria, Education Department, Victoria, 1997. D Jaggs, ‘Mother State and Her Little Ones’ in B Bessant (ed.), Mother State and her Little Ones: Children and Youth in Australia 1860–1930, Centre for Youth and Community Services, Melbourne, 1987, pp. 118–39. P Miller, Long Division: State Schooling in South Australian Society, Wakefield Press, Adelaide,

24.

25.

26. 27.

28. 29.

30. 31. 32. 33. 34. 35. 36. 37.

38. 39. 40. 41. 42.

1986. There were 10 principal Acts passed over a period of 90 years in Victoria: Neglected and Criminal Children’s Act 1864; Neglected and Criminal Children’s Act 1874; Neglected and Criminal Children’s Act 1878; Neglected Children’s Act 1887; Neglected Children’s Act 1890; Neglected Children’s Act 1915; Children’s Welfare Act 1924; Children’s Welfare Act 1926; Children’s Welfare Act 1928; Children’s Welfare Act 1933. Around this legislation, cognate Acts such as the Children’s Court Acts and the Children’s Maintenance Acts were also passed. P Power, Amendments to the Children Youth and Families Act 2005-March 2105, Children’s Court of Victoria, 2015, www.childrenscourt.vic.gov.au/amendments-children-youth-and-families-act2005-march-2015 (accessed 4 July 2016). W Hague, William Wilberforce: A Life, Random House, London, 2007, pp. 115–36. D Scott and S Swain, Confronting Cruelty: Historical Perspectives on Child Protection in Australia, Melbourne University Press, Melbourne, 2002; R Marsh, ‘“Lost”, “Stolen” or “Rescued”’ (1999) 43(6) Quadrant 15 at 16; D Bennett, ‘The Cubillo and Gunner Cases’ (2000) 44(11) Quadrant 35; D Meagher, ‘Not Guilty’ (2000) 44(11) Quadrant 11 at 28. The Argus, quoted in S Bignell, ‘Orphans and Destitute Children in Victoria up to 1864’ (1973) 44 Victorian Historical Magazine 24 at 31. Victorian Parliamentary Papers, 1856–57, Vol. 3, Select Committee on Penal Discipline Report, pp. 92–7. The original legislation was a New South Wales statute, the Vagrancy Act 1835 (NSW), and this was replaced by the Police Offences Statute 1865 (Vic): see A McLeod, ‘On the Origins of Consorting Laws’ (2013) 37(1) Melbourne University Law Review 103. Victorian Parliamentary Papers, 1861–62, Royal Commission to Inquire into Municipalities and Charities Report, pp. xxxv-xxxvii. D Jaggs, Neglected and Criminal: Foundations of Child Welfare Legislation in Victoria, Centre for Youth Studies, Coburg, 1986, pp. 26–7. Ibid. Ibid, p. 143. G Stanley Hall, Adolescence: Its Psychology and Its Relations to Physiology, Anthropology, Sociology, Sex, Crime, Religion, and Education, Appleton, New York, 1904. D Tyler, ‘The Development of the Concept of Juvenile Delinquency in Victoria, 1855–1905’ (1982–83) 4 Melbourne Working Papers 34. J Donzelot, The Policing of Families, Pantheon Books, New York, 1979, p. 104. Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Commonwealth of Australia, Canberra, 1997. R Watts, ‘Making Numbers Count: The Birth of the Census and Racial Government in Victoria, 1835–1840’ (2003) 34(121) Australian Historical Studies 26 at 33. P Pepper and T De Araugo, What Did Happen to the Aborigines of Victoria, Vol. 1: The Kurnai of Gippsland, Hyland House, Melbourne, 1985, pp. 270–2. R Manne, ‘In Denial: The Stolen Generations and the Right’ (2001) 1(1) The Australian Quarterly Essay 1 at 11. Ibid. R Watts, States of Violence and the Civilising Process: On Criminology and State Crime, Palgrave-

43. 44. 45. 46. 47. 48. 49. 50.

51. 52. 53. 54.

55.

56.

Macmillan, London, 2016, pp. 76–89. A Markus, Governing Savages, Allen & Unwin, Sydney, 1990, p. 23. T Austin, I Can Picture the Old Home So Clearly: The Commonwealth and ‘Half-cast’ Young in the Northern Territory 1911–1939, Aboriginal Studies Press, Canberra, 1993, p. 21. H Goodall, ‘Saving the Children: Gender and the Colonisation of Aboriginal Children in NSW 1788–1990’ (1990) 2(44) Aboriginal Law Bulletin 6. Manne, ‘In Denial: The Stolen Generations and the Right’, note 40 above at 24–7. Human Rights and Equal Opportunity Commission, Bringing Them Home, note 37 above. C Cunneen, A Study of Aboriginal Juveniles and Police Violence, Human Rights and Equal Opportunity Commission, Sydney, 1990. S Sassen, Expulsions: Brutality and Complexity in the Global Economy, Harvard University Press, Cambridge, 2014. S Wolin, Politics as Vision, Princeton University Press, Princeton, 2004; B Hibou, ‘From Privatising the Economy to Privatising the State: An Analysis of the Continual Formation of the State’ in Privatising the State, Hurst & Co, London, 2004. P Carlen, ‘Imaginary Penalities and Risk Crazed Governance’ in Imaginary Penalties, Routledge, Abingdon, 2010, p. 1. G Agamben, Homo Sacer: Sovereign Power and Bare Life, Stanford University Press, Stanford, 1998. L Steinberg, ‘Risk Taking in Adolescence: New Perspectives From Brain and Behavioral Science’ (2007) 16(2) Current Directions in Psychological Science 55. J Searle, Mind: A Brief Introduction, Oxford University Press, New York, 2004; R Tallis, Aping Mankind: Neuromania, Darwinitis and the Misrepresentation of Humanity, Routledge, London, 2014. J Bessant, R Hill and R Watts, Discovering Risk: Social Research and Policy Making, P Lang, New York, 2005, p. 149; J Bessant, ‘Hard Wired for Risk: Neurological Science, The Adolescent Brain and Developmental Theory’ (2008) 11(3) Journal of Youth Studies 11. Commission of Inquiry, Report of the Commission of Inquiry into Abuse of Children in Queensland Institutions, GOPRINT, Brisbane, 1999; B Coldrey, ‘The Scheme’: The Christian Brothers and Childcare in Western Australia, Argyle-Pacific Publishing, Perth, 1993.

[page 25]

Chapter 2

The Development of Children’s Rights John Tobin1

Introduction 2.1 In 1973, Hillary Rodham, as she then was, proclaimed that ‘children’s rights’ was a slogan in search of a definition.2 This chapter attempts to provide some guidance with respect to this search. Importantly, it does not seek to present an exhaustive examination of the idea of children’s rights. It does, however, seek to engage with three critical questions that underpin most discussions concerning children’s rights: 1. Should children have rights? 2. What rights do children have under the law in Australia? 3. What does it mean to adopt a ‘rights-based’ approach with respect to matters concerning children? With respect to the first question, it will be argued that this threshold question remains extremely contentious among academic commentators, policy makers and the general public, especially parents. It is not necessary to examine in detail the depth and complexity of this debate here, as many other commentators have already undertaken this task.3 Rather, it is sufficient to outline relatively briefly the competing arguments in

[page 26] order to identify the general contours of the debate. The conclusion to be drawn is that much of the opposition to the notion of children as rights bearers is framed around misunderstandings as to the meaning of human rights. As a consequence, on balance there exists a strong legal, moral and political rationale to advance the use of human rights as a vehicle to address the needs of children. The answer to the second question underscores the conflicted nature of the debate in relation to the first question. At the international level, the remarkable consensus around the question of whether children should have rights resulted in the adoption of the United Nations Convention on the Rights of the Child (CRC) in 1989 — a treaty that imposes binding legal obligations on its 196 States Parties. Indeed, the USA is the only state not to have ratified the CRC. However, domestic implementation of these obligations has not reflected the ostensible commitment given by states when they ratified the CRC, and Australia is no exception in this regard. Although there is evidence of a trend to recognise the rights of children within the legal systems of some states,4 Australia has remained obstinate in its refusal to implement the CRC. This is not to say that children do not have any rights in Australia, and the CRC has informed the development of aspects of legislation and policy within some jurisdictions in Australia. On balance, however, there remains a limited and piecemeal approach to the use of the CRC and the notion of children as rights bearers as the benchmark against which to develop, implement and monitor laws and policies affecting children. This potential to use the CRC in a comprehensive manner has inspired what is increasingly referred to as the use of a ‘rights-based’ approach to matters dealing with children. The substantive meaning of this catch phrase, however, remains somewhat elusive.5 As a result, the third section of this chapter is dedicated to identifying the various features and principles that can

be said to inform a rights-based approach. Such a discussion represents an attempt to respond to the observation of Guggenheim that the children’s rights movement has made little progress in developing a cogent conceptual position.6 It aims to create awareness and stimulate debate around the underlying principles of such an approach and, in doing so, demonstrate that the slogan is no longer in search of a definition.

Should children have rights? 2.2 Historically, children were never endowed with notions of individual liberty or rights. Under Roman law, the doctrine of patria potestas (paternal power) effectively [page 27] entitled a father ‘[not only] to all the service and all the acquisitions of his child as much as those of his slave but he had the same absolute control over his person’.7 John Stuart Mill’s seminal work On Liberty (first published in 1859) was only prepared to extend liberty ‘to human beings in the maturity of their years’ and disqualified from its exercise ‘children and young persons below that age which the law may fix as that of manhood and womanhood.8 Moreover, the courts for many years were determined to preserve this social order.9 Over the course of the 20th century, the idea of children as rights bearers gradually began to emerge. Numerous factors contributed to this development at both the international10 and national levels,11 the cumulative effect of which was to ‘focus specifically on the plight of children as individuals in their own right rather than as the property of one or other of their parents'.12 At the international level, for example, ‘reactions for the plight of exploited working children, horror at the sexual exploitation of

children and especially its suspected cross border dimensions’13 led the International Labour Organization to adopt various minimum age standards in 1919, which stimulated an awareness of the link between children’s needs and their rights. A decade later, in 1929, the League of Nations, in response to the humanitarian crisis and suffering experienced by children during World War I and the subsequent years, adopted the Declaration on the Rights of the Child. Although couched largely in welfarist terms, this declaration has been identified as ‘the formal establishment of an international movement for children’s rights'.14 2.3 The subsequent years saw relatively little special attention given to the rights of children at the international level. The provisions of the Universal Declaration on Human Rights (1948) and the subsequent covenants, the International Covenant on Civil and Political Rights (1966) (ICCPR) and the International Covenant on Economic Social and Cultural Rights (1966) (ICESCR), all extended to children. However, only a few provisions of these instruments were concerned with the special circumstances of children. But it was the Declaration on the Rights of the Child, adopted by the United Nations in 1959, which ‘gave a broad imprimatur to the concept of children’s rights per se’.15 This Declaration, as with its like-titled predecessor from 1924, also [page 28] had significant limitations, especially with respect to its tendency to emphasise the protection and safety of children and omit any civil and political participatory or autonomy rights. This deficiency was not rectified until the adoption of the CRC in 1989, after a 10-year drafting process, which marked the full transformation, and complete emergence, of the idea of children as rights bearers at the international level. Importantly, these international developments were not occurring in

isolation from events within the domestic realm. Indeed, the emergence of an international consensus around the idea of children’s rights was fuelled and enabled by an increasing acceptance of the idea at the domestic level. Over the course of the 20th century, a number of assumptions with respect to the status and standing of children were dismantled. Studies with respect to the abuse of children revealed that the cause of such suffering was often at the hands of parents and guardians, thereby debunking the myth of natural parental affection.16 The work of psychologists demonstrated that children were more active thinkers than had previously been thought. As a consequence, political scientists began to question the social construction of childhood at a time of unprecedented social change, when the language of rights was being used to transform the experiences and entitlements of women and various racial groups.17 Lawyers also started to advance calls to liberate children from the denial of their rights because of their status as children and, perhaps more importantly, courts began to listen to such calls.18 Decisions such as Tinker v Des Moines Independent Community School District19 and Re Gault,20 which were delivered by the United States Supreme Court, and the House of Lords judgment in Gillick v West Norfolk and Wisbech Area Health Authority21 heralded judicial acknowledgment that the language of rights had a legitimate role to play in advancing the interests of children. 2.4 In the years following, many groups have embraced children’s rights as a tool for both academic analysis and advocacy at the international and domestic levels.22 However, this trend has been uneven and is certainly unmatched at the institutional, policy and academic levels, where there exists a level of resistance, scepticism and [page 29] uncertainty about the utility of rights for children. This debate is detailed and

complex.23 It is sufficient here, however, to outline the principal arguments of concern advanced in opposition to the relevance of children’s rights. 1. Rights for children are unnecessary because adults have the best interests of children at heart.24 2. Childhood can be seen as a ‘golden age of innocence’ in which there is no need for children to have rights, as they should be spared the burden of the concomitant responsibilities. 3. Rights are individualistic and only serve to undermine the family structure by creating an adversarial climate and legitimising intervention by the state within the family.25 4. The enjoyment of rights is contingent upon the capacity to exercise those rights and as children lack capacity or competency they should not be entitled to rights.26 5. Rights are excessively legalistic27 and do not operate to challenge the structures and processes that undermine or threaten children’s needs. Alternative models, therefore, provide a more appropriate political and moral paradigm by which to respond to children’s needs. These models include a focus on the obligations of parents, teachers and other persons involved in children’s lives;28 or an ethic of care that would emphasise responsibilities over rights and provide a more effective response to children’s needs.29 6. Rights are invariably ill defined and vague.30 7. The autonomy of children is misguided as their dependence is a reality.31 Moreover, the liberation of children is a dangerous objective that raises the very real risk of harm to children.32 Most of these criticisms are based on either an idealised vision as to the reality of children’s lives or a misunderstanding as to the role and content of the various rights that have been attributed to children under the CRC. First, the majority of parents may [page 30]

have their children’s best interests at heart, but the evidence demonstrates that this is not always the case.33 Moreover, as Chapter 6 demonstrates, for far too many children the ideal of a golden age of childhood is an elusive dream.34 2.5 In relation to the claim that the individualistic nature of rights operates to fragment families, it is true that rights are recognised as individual entitlements, but their enjoyment and realisation does not occur in isolation, and the CRC adopts a relational rather than an individualistic conception of rights.35 The family structure and the role of parents are critical in securing this process.36 Intervention within the family may be permitted under the CRC, but it is not an elective option to be exercised by states at whim. Rather, it is only permitted when parents fail to secure the best interests of their children. With respect to the issue of capacity, this is not a precondition for the recognition of the human rights of any person, including a child — such entitlements are granted to all persons by virtue of their humanity.37 In response to the emphasis placed on law under a human rights paradigm, the law may be an imperfect tool for social regulation, but it remains accepted as the dominant means by which to achieve this end, despite its limitations. Finally, the demand for autonomy associated with the call to recognise rights for children should not be equated with a denial of a period of dependence for children or a claim to complete liberation. On the contrary, the model advanced under the CRC advances an evolving rather than absolute notion of autonomy for children, which reflects their age and level of maturity.38 2.6 The value of children’s rights as a response to children’s needs is, therefore, linked to the capacity of this discourse to: elevate the status of children; render them visible; recognise their evolving capacity as active agents rather than passive subjects dependent upon welfare and benevolence; recognise their human dignity; and legitimise their claims and entitlements and demand accountability from those who are responsible for the realisation of these goals. As Freeman explains in his strong defence of children’s rights,

‘[r]ights then are also a resource; they offer reasoned argument. They support a strong moral case’ and they ‘offer fora for action’.39 [page 31]

What rights do children have? 2.7 In Australia, the answer to the question of what rights children have depends upon the jurisdiction that is the subject of the inquiry. When Australia ratified the CRC in 1990, as a matter of international law each person under the age of 18 became entitled to all of the rights set out under the CRC. Moreover, Australia accepted an obligation in good faith to take all appropriate measures to secure the effective enjoyment of those rights within domestic law.40 In practice, the efforts to fulfil this obligation have been, at best, piecemeal and in some instances, most notably with respect to the treatment of child refugees, significantly short of what is required under the CRC.41 Some aspects of the CRC have arguably informed the development of various aspects of the Australian legal system. This is evident, for example, in some aspects of the Family Law Act 1975 (Cth).42 However, as outlined in 1997 in the report by the Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process,43 and the Senate Inquiry into the CRC in 1998,44 there were significant gaps in the protection of children’s rights. Despite the passage of time, the continued existence of these gaps has been confirmed by: 1. a preliminary review of the extent to which the recommendations of the Seen and Heard report have been adopted;45 and 2. the concluding observations of the Committee on the Rights of the Child (Committee) in 2012 with respect to Australia’s reports on its progress in relation to implementation of the CRC.46

As a party to the CRC, Australia is required to submit a report to the Committee every five years in which Australia outlines the measures it has taken to implement its obligations under the CRC. In turn, the Committee prepares a set of concluding observations in which it evaluates Australia’s performance. In its most recent set of observations for Australia, in 2012, the Committee expressed its concern with respect to a range of issues, including: Australia’s efforts to raise awareness of children’s rights; the treatment of Indigenous and refugee children; the failure to prohibit corporal punishment of children; the lack of measures to enable children’s effective participation especially in schools; the abuse and neglect of children in institutional care; and the [page 32] quality of health care for children in rural communities.47 Under international law, Australia is obliged to take measures in good faith to address the concerns of the Committee. In practice, however, the recommendations of the Committee cannot be enforced by any coercive mechanism, and Australia can (and often does) effectively ignore the recommendations without any legal consequence. In 2011, a third optional protocol to the CRC (OP3) was adopted by the United Nations General Assembly, which came into force in 2014.48 This protocol allows children to lodge a complaint with the Committee when their rights under the CRC have been violated. Australia, however, is yet to ratify this protocol which means that children within Australia cannot lodge such a complaint. Despite Australia’s failure to implement fully the CRC and/or ratify OP3, the CRC remains relevant in at least five important respects: 1. It has been declared a relevant international instrument for the purposes of the Australian Human Rights Commission Act 1986 (Cth)

(AHRC Act), which means that it informs the mandate of the Australian Human Rights Commission (AHRC) to monitor, receive complaints and undertake inquiries with respect to the protection and promotion of human rights under the federal system. For example, this provided the basis for the AHRC’s two inquiries into the immigration detention of children.49 2. In 2013, a National Children’s Commissioner was appointed, whose mandate includes the promotion and protection of children’s rights consistent with the CRC (AHRC Act s 46MB). This has enabled the Commissioner to prepare reports based on the rights of children under the CRC, which have addressed issues such as discrimination against children, children’s privacy rights, early childhood education and care, and protection against self-harm and suicidal behaviour for adolescents.50 3. In 2011, the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) established two processes that envision a role for the CRC. The first was the creation of the Parliamentary Joint Committee on Human Rights, whose mandate includes examination of Bills and existing statutes in light of Australia’s obligations under a number of international instruments including the CRC (s 7). The second was a requirement that every Bill submitted to the Commonwealth Parliament be accompanied by a statement of compatibility outlining the [page 33] extent to which the provisions of the Bill comply with Australia’s obligations under various human rights treaties, including the CRC (s 8). Neither of these processes allows for the provisions of the CRC to bind the Commonwealth Parliament, and the identification of an inconsistency with the CRC has no impact on the validity of an

existing Act or Bill. That said, both processes create the potential for the provisions of the CRC to have a more explicit and formal role in the drafting of and debate surrounding Commonwealth legislation, both within the relevant government departments and the Parliament itself.51 The adoption of the Charter of Human Rights and Responsibilities Act 2006 in Victoria and the Human Rights Act 2004 in the Australian Capital Territory provide an independent source of rights for children within those jurisdictions. Each regime extends the rights protected under the relevant enactments to all persons, including children, and contains special provisions for the protection of children’s rights.52 The system for the protection of rights under these instruments is complex. For present purposes it is sufficient to note that like the federal system, the Victorian and Australian Capital Territory systems require new Bills to be accompanied by a statement of compatibility outlining the extent to which the proposed legislation complies with the rights under the relevant Act. Public authorities are also required to give proper consideration to, and act compatibly with, the relevant rights. Thus policy makers, public authorities and parliamentarians are required to engage with the idea of children as rights bearers. In terms of judicial protection of rights, the Australian Capital Territory scheme provides an explicit cause of action against a public authority (s 40C) for a violation of an individual’s rights which is also available to children. However, as yet53 there is no separate cause of action under the Victorian Charter. That said, courts in Victoria have still had cause to consider the relevance of children’s rights under the Charter when interpreting the obligations of the state in the context of its obligations under other legislation regarding, for example, the rights of children in child protection proceedings.54 This possibility arises by

[page 34] virtue of s 32(1), which requires that: ‘So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’. Moreover, when performing this function there remains scope for policy makers, lawyers, judges and parliamentarians to draw upon international instruments such as the CRC to interpret the rights under the Victorian and Australian Capital Territory human rights schemes and general legislation. This possibility arises under the Victorian Charter, for example, as a result of s 32(2) which provides that: ‘International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.’55 4. The CRC (and indeed other international treaties that provide rights for children, such as the ICCPR and ICESCR) can be used to inform the accepted principles of judicial interpretation with respect to the status of ratified yet unincorporated treaties. These principles allow for the CRC to play a role in: the interpretation of legislation where there is an ambiguity; the development of the common law; the application of the principle of legitimate expectation; and the exercise of judicial discretion. It is within these contexts that courts in Australia have on occasions made recourse to the CRC. This has occurred most frequently within the Family Court, where judges have drawn on the CRC to assist them in their interpretation of the Family Law Act 1975 (Cth).56 Judges have also made recourse to the CRC within other contexts, such as the sentencing of juveniles57 and immigration proceedings.58 That said, the opportunities for using the CRC in judicial proceedings within Australia are still yet to be fully explored.59 5. Finally, policy makers at the federal, state/territory and local government levels can elect to use the CRC and the idea of children’s

rights to inform the development of policies concerning children. At the federal level, for example, the CRC has been explicitly affirmed in contexts such as the National Framework for Protecting Australia’s Children 2009–2020;60 the National Standards for [page 35] Out-of-Home Care;61 the Early Years Learning Framework for Australia;62 and Australia’s National Plan of Action against the Commercial Sexual Exploitation of Children.63 It has influenced the content of legislative schemes such as the Family Law Act;64 featured in the Senate Inquiry into donor conception issues;65 been part of the terms of reference for the Royal Commission into Institutional Responses to Child Sexual Abuse;66 and has also influenced the work of bodies such as the Australian Institute of Family Studies67 and the Family Law Council of Australia.68

What does it mean to adopt a rights-based approach to matters involving children? 2.8 There are increasing calls for the adoption of a rights-based approach with respect to children’s needs. This catch cry is common at the international level69 and it is also heard within Australia, especially in Victoria with the adoption of the Charter of Human Rights and Responsibilities Act 2006. This trend invites an assessment and discussion of what it actually means to adopt a rights-based approach.70 There is a need to move beyond the vague generalisations, analytical confusion71 and rhetoric that often characterise the calls and implementation of such an approach, and identify some of its key underlying features. For the purposes of this section it is suggested

[page 36] that there are at least 10 such features. Clearly this number is not fixed and some commentators will identify more elements, while others will identify less. The point to stress here is that a rights-based approach cannot be reduced to a simple catch cry. Rather, it exists as a complex set of ideas and principles that have their foundations in international human rights standards, principally the CRC, and provides the potential to act as a useful tool for addressing children’s needs.

The need to recognise that children have rights 2.9 A precondition to the adoption of a rights-based approach is an acceptance that children have rights. As outlined above, the utility and relevance of children’s rights as a strategy to address children’s needs remains a subject of debate. However, at the international level, at least from a legal perspective, this issue has effectively been resolved in favour of the affirmation of children’s rights as a legitimate concept. The evidence to support this view is the almost universal ratification of the CRC. At the same time, it is important to recognise that the proposition that children have rights as a matter of international law is not sufficient to advance a rightsbased approach. Rather, what is required is a commitment to accepting the utility of recognising children’s rights as not simply a legal concept, but also an ethical and political framework by which to advance the needs and interests of children by all appropriate means, including measures to protect these rights. Within Australia there remains a reluctance to embrace such an approach. Take, for example, the following comments of Gummow J of the High Court of Australia in a 2004 case concerning the detention of asylum-seeking children: The starting point is the proposition that, at common law, a right of a parent or parents to custody

of children who had not reached the age of discretion (14 for boys and 16 for girls) incorporates a ‘right of possession’ of the child which includes the right to exercise physical control over that child.72

Such a proprietary view of children contrasts sharply with the image of children articulated by Nicholson CJ and O’Ryan J of the Family Court of Australia in B & B v Minister for Immigration and Multicultural and Indigenous Affairs, 73 where they declared that: It is quite apparent that under our law children are entitled to be treated as individuals and not as the property of or appendages of their parents. They are entitled to the same rights and protections at common law and under the Constitution as adults subject to Australian law.

Although the view of Nicholson CJ and O’Ryan J is consistent with the construction of children under the CRC, it could not be said to represent the dominant understanding of children within Australian society. Indeed, in the inquiry into the implementation of the CRC by the Joint Standing Committee of Treaties in 1998, ‘fifty one per cent of the submissions opposed the Convention’.74 Advocacy bodies may well invoke the rights [page 37] of children as a tool to advance their cause, but for many Australians this concept still remains deeply controversial. This is reflected in the propensity of our political leaders to use children as photo opportunities, but their failure to champion their rights.75 2.10 It is true that political leaders may invoke the rights of children in the context of specific issues, but such appropriations are invariably inappropriate and are often used to disguise an alternative agenda. For example, the former Prime Minister, John Howard, was prepared to oppose the extension of assisted conception procedures to single women and lesbian couples on the basis that ‘[t]his issue primarily involves the fundamental right of a child within our society to have the reasonable expectation … of the care and affection of both a mother and a father’.76 This claim was made despite

the absence of any such right under international law77 and the existence of an overwhelming body of evidence that same-sex parenting presents no harm to the development of children.78 Ultimately, a genuine commitment to the CRC requires more than the selective use of the rhetoric of children’s rights to advance a particular ideological or political position. It requires an acceptance of the idea that children have rights, an understanding of the substantive content of these rights, and a commitment to adopt practical measures to protect and promote the rights of children. The first of these involves the need to bring children’s rights into the mainstream in all matters that affect them.

Mainstreaming children’s rights 2.11 ‘Mainstreaming’ has become a fairly common theme with respect to any discussion of human rights. This practice involves the process of assessing the human rights implications of any planned action including legislation, policies or programs, in all areas and at all levels. It is a strategy for making human rights an integral dimension of the design, implementation, monitoring and evaluation of policies and programs in political, economic and social spheres.79

These steps form the basis of ‘the human rights-based approach’.80 [page 38] The term ‘mainstreaming’, when used in the context of children’s rights, stresses the need to make children visible and integrated rather than marginalised, isolated or ignored within all debates concerning matters that affect them. At present, far too many debates tend to adopt the latter approach. The opinions of Lord Birkenhead and Baroness Hale of Richmond of the House of Lords in R (Williamson) v Secretary of State for Education and Employment81 provide a good illustration of these competing approaches. The case involved a claim by parents that a ban on corporal punishment

within schools was a violation of their rights to discipline their children in accordance with their religious beliefs. Lord Birkenhead conceived of the issue primarily as one that involved the resolution of the competing interests between the parents and the state. In contrast, Baroness Hale declared: My Lords, this is, and has always been, a case about children, their rights and the rights of their parents and teachers. Yet there has been no one here or in the courts below to speak on behalf of the children. No litigation friend has been appointed to consider the rights of the pupils involved separately from those of the adults. No non-governmental organisation, such as the Children’s Rights Alliance, has intervened to argue a case on behalf of children as a whole. The battle has been fought on ground selected by the adults. This has clouded and over-complicated what should have been a simple issue.82

The contrast could not be more striking. One law lord rendered the rights of children completely invisible in his analysis, while the other ensured that their rights were integrated into the analysis of an issue that directly impacted upon their rights. In adopting such an approach, Baroness Hale was able to recognise that children are not merely objects of concern, but subjects with rights. 2.12 Importantly, the mainstreaming of children rights is not intended to displace all other considerations. The ‘children first’ slogan so commonly used by governments83 and advocates for children is a highly problematic model that does not reflect a rights-based approach. As Cantwell explains, it places children ‘on a kind of “more equal than others” pedestal’, which reflects a ‘charity based approach to children, where sentimentality over children’s vulnerability leads to facile “separate” responses: never mind human rights let’s help children’.84 In contrast, the mainstreaming of children’s rights recognises that children have special needs by virtue of their status as children, which must be given special attention lest they remain invisible and marginalised. So, for example, the European Court of Human Rights has held the United Kingdom to be in violation of its obligation to ensure the right to a fair trial on the basis that its trial procedures remain too ‘adult-centric’ and do not sufficiently accommodate the special circumstances of juvenile offenders.85

[page 39] The mainstreaming of children’s rights also requires that the enjoyment of these rights must be addressed in conjunction with the rights and needs of other groups within a society via ‘the visible integration of children in policy making’,86 rather than in isolation, competition or as an ‘add on’.87 S v M,88 a decision of the South African Constitutional Court, emphasised the need for such an approach when dealing with the means by which the rights of children must be taken into account when a court is giving consideration to the imprisonment of their primary caregiver. Rather than treating the children as merely another ‘circumstance’ in the sentencing process, Sachs J declared that sufficient independent and informed attention must be given to the impact on children of sending their primary caregiver to prison.89 He recognised that the sentencing process must remain a balancing exercise, but stressed the need to ensure that consideration of the best interests of children must be genuine rather than dismissive or perfunctory,90 and must be based on evidence concerning the manner in which the child stands to be affected.91

Universally accepted normative standards provide the foundation of a rights-based approach 2.13 Numerous discourses are invoked to address children’s needs. Within the realm of public health, for example, there remains a marked preference for equity-based approaches,92 and the concept of children’s ‘well-being’ is increasingly being used in a range of contexts.93 A welfare, or ‘child-saving’, model (see Chapter 1) still dominates much of the agenda for organisations working with children, especially those seeking to raise funds to alleviate the situation of children in crisis. Although such models may offer strategies to deal with children, they differ from a rights-based approach in that they can make no claim to an accepted normative foundation. Achieving respect for human rights is a fundamental purpose of the United Nations and an

objective to which all member states, including Australia, have pledged their support, both individually and cooperatively: United Nations Charter Arts 1(3), 55 and 56. This common commitment is further strengthened by the Universal Declaration on Human Rights and several human rights treaties, the most relevant with respect to children being the CRC. [page 40] International human rights law, therefore, provides the normative framework to guide the design, implementation and evaluation of policies and processes affecting children by identifying the entitlements to which all children are eligible by virtue of their status as human beings.94 The realisation of these entitlements is not to be dependent upon the discretion or benevolence of states that have voluntarily undertaken a legal obligation to secure their realisation.95 Accountability of states is, therefore, a key feature of a child rights-based approach. This contrasts sharply with traditional welfare and protective models for dealing with children, which view them as objects of discretionary intervention dependent upon the goodwill and charity of others, rather than subjects with entitlements.

CRC provides core standards of a rights-based approach for children 2.14 Children are the beneficiaries of the rights articulated under all the international human rights treaties by virtue of their status as human beings. Moreover, the ICCPR,96 ICESCR97 and the Convention on the Rights of Persons with Disabilities98 all have provisions that deal explicitly with children. However, as the CRC represents an international treaty that was designed specifically to protect and promote the rights of children, it ‘has become the international standard against which to measure legislation and

policies’99 in relation to matters which affect children. It has been suggested that the CRC is not sufficiently comprehensive100 — a view arguably confirmed by the adoption of two optional protocols to supplement the perceived deficiencies of the CRC in the areas of armed conflict and the sale, trafficking, prostitution of, and pornography involving, children. But putting to one side this debate as to the appropriate scope of the CRC, it is uncontroversial to suggest that it still offers an impressive and extensive catalogue of rights which can be arranged into three categories: 1. rights of general application which apply to all children, such as the rights to life (Art 6); name, nationality and identity (Arts 7 and 8); education (Arts 28 and 29); health (Art 24); freedom of expression (Art 13); and protection against torture (Art 37); 2. rights which apply to children in specific circumstances, such as children subject to adoption (Art 21); criminal justice proceedings (Art 40); children seeking refugee status (Art 22); armed conflict (Art 38); exploitative child labour (Art 32); and children deprived of their family environment (Art 20); and [page 41] 3. rights which apply to children with specific characteristics, such as Indigenous children or children from minority groups (Art 30) and children with disabilities (Art 23). 2.15 The content and meaning of many of these rights can be informed by existing jurisprudence, especially in the context of well-established civil and political rights. It is true that the development of a child-centred interpretation of such rights remains in its embryonic stages and is an evolving process.101 It must also be conceded that the precise parameters of many economic and social rights remain far from resolved. This is not to say that such rights are inherently indeterminate and vague. Rather, that

significant work is still required to provide many economic and social rights with an operative definition. Importantly, this process is enhanced by the work of domestic courts such as the South African Constitutional Court, which has examined a child’s right to health and housing within the context of the South African Constitution.102 The various committees responsible for monitoring the implementation of the international human rights treaties — especially the Committee on the Rights of the Child and the Committee on Economic, Social and Cultural Rights — also play a role with their issuing of regular general comments that guide states as to the nature of their obligations with respect to the relevant rights. Thus, for example, the Committee on the Rights of the Child has issued general comments with respect to juvenile justice, children with disabilities, corporal punishment, early childhood, unaccompanied children, children’s right to health, the best interests principle, children’s right to participation and the aims of education.103 2.16 Two general themes emerge from the work of the committees with respect to the understanding of the obligations of states under the various human rights standards. First, there is a preference for what is sometimes referred to as a tripartite typology of obligations: 1. an obligation to respect, which requires states to refrain from measures that will interfere with the enjoyment of a right; 2. an obligation to protect, which requires states to take all reasonable measures to ensure that a non-state actor does not interfere with the enjoyment of a right; and 3. an obligation to fulfil, which requires states to take all effective measures to ensure the full realisation of the right. Second, the effectiveness of the measures adopted by a state are generally assessed according to four qualitative criteria: availability, accessibility, acceptability and quality.

[page 42] To take just one example, the Committee on the Rights of the Child has interpreted these requirements in the context of adolescent health to mean: 1. availability — primary health care should include services sensitive to the needs of adolescents with special attention given to sexual and reproductive health and mental health; 2. accessibility — health facilities, goods and services should be known and easily accessible (economically, physically and socially) to all adolescents, without discrimination; confidentiality should be guaranteed when necessary; 3. acceptability — while fully respecting the provisions and principles of the CRC, all health facilities, goods and services should respect cultural values, be gender sensitive, be respectful of medical ethics and be acceptable to both adolescents and the communities in which they live; 4. quality — health services and goods should be scientifically and medically appropriate, which requires personnel trained to care for adolescents, adequate facilities and scientifically accepted methods.104

The three general principles of a rights-based approach Interdependence and indivisibility 2.17 Commentators have identified various principles that inform a general human rights-based approach to programming. UNICEF, for its part, has identified three guiding principles that underlie such an approach to matters dealing with children.105 The first is the notion of interdependence and indivisibility of all human rights, which is drawn from the Vienna Declaration and Programme of Action adopted at the World Conference on Human Rights in 1993.106

The terms ‘interdependence’ and ‘indivisibility’, which are invariably used interchangeably, assert that the realisation of a specific right cannot be divorced from the realisation of the other rights to which children are entitled. In the context of juvenile justice, for example, there is limited value in the provision of a system that complies with the requirements of Art 40 of the CRC (with respect to children who are subject to criminal justice proceedings) if these children are denied the right to an effective education, appropriate health care and an adequate standard of living that is free from abuse and violence. In the context of the right to health, there is limited value in the provision of health care centres for children if the privacy of their medical records cannot be ensured. In the context of the education of Indigenous children or children from minority groups, the value of such education is diminished if it is unaccompanied by measures to protect the cultural and linguistic traditions of such children. In the context of violence against children, there is limited value in prosecuting the offenders if the victims of such [page 43] violence do not have access to counselling and assistance to facilitate their recovery and social reintegration. The principle that all rights are interdependent and indivisible, therefore, acts to dilute the artificiality of the distinction and historical antagonism between civil and political rights on the one hand, and economic, social and cultural rights on the other. To say that rights are indivisible not only provides recognition of their interdependence, but also dismantles any claims to there being a hierarchy of rights. It thus affirms the equal status of all human rights and the need to adopt a holistic, or whole-of-child, response to ensure their realisation.

Accountability 2.18 Accountability is recognised as a fundamental principle of a human rights-based approach. It arises from the fact that: States voluntarily acknowledge and accept obligations when they ratify human rights treaties. In doing so they agree to implement these treaties and to be accountable for meeting the rights and providing for the needs of the people within their jurisdiction.107

The principle of accountability, therefore, demands that children be recognised as subjects with entitlements that states are obliged to secure on their behalf. This obligation is generic to all human rights and, as outlined above, is generally considered to consist of three distinct duties: an obligation to respect, an obligation to protect, and an obligation to fulfil. An examination of the right to life can be used to illustrate the operation of these three duties. The obligation to respect life requires states to refrain from any measures that would interfere with a child’s life. The obligation to protect requires that states must take all measures to protect children against a violation of their right to life by non-state actors. For example, in the case of Osman v United Kingdom,108 the European Court of Human Rights accepted that the right to life ‘may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual …’.109 Moreover, in applying this test in the subsequent case of Z v United Kingdom,110 the European Court of Human Rights found that the failure of the state to intervene and offer protection, in circumstances where the harm suffered by five children in the care of their mother reached the threshold for inhuman and degrading treatment, was a violation of the prohibition against such treatment. The obligation to fulfil requires states to take active measures, including legislative, administrative, budgetary, judicial, social and educational measures to facilitate, provide and promote the full realisation of children’s rights.111 The Human Rights Committee has explained that in the context of the right to life, this requires states to

[page 44] take measures to diminish infant mortality.112 Moreover, when this same duty is applied in the context of protective care, it leads to the result that a regime to remove a child from the care of his or her parents, where this is necessary to secure the child’s best interests, is insufficient to secure a child’s right to life. Rather, preventive measures to assist the parents of a child must be made available and be accessible so as to maximise the capacity of the parents to care for the child.113

Universality 2.19 The notion of universality, which is intrinsic to international human rights law, is identified by UNICEF as the third foundational principle of a child rights-based approach.114 It is premised on the principle expressed in Art 1 of the Universal Declaration on Human Rights that ‘all human beings are born free and equal in dignity and rights’, which translates into a requirement that all children at all times are endowed with the same rights that are universally applicable. This concept of dignity is linked to the ‘Kantian moral philosophy that affirms the inherent worth of human beings’.115 It demands that children are never to be seen simply as a means to an end, but as an end in themselves. Importantly, such an approach rejects the construction of children as social capital, which is often used to justify investment and action to assist children in various contexts, such as early childhood intervention and the provision of education. For example, an early version of the Conceptual Framework for the World Bank’s investment in children and young people was based on the argument that ‘it is economically efficient to invest in the early years’.116 In contrast, a rights-based approach demands the provision of early childhood services and educational opportunities because children have a right to such entitlements irrespective of any prospective economic benefits.

This idea of the inherent dignity and value of every child also underlies international insistence that corporal punishment and the sterilisation of children with an intellectual disability are never to be permitted. With respect to corporal punishment, for example, the Committee of the Rights of the Child has recommended that Australia ‘[t]ake all appropriate measures to explicitly prohibit corporal punishment in homes, in public and private schools, detention centres and alternative care settings in all states and territories’.117 In relation to sterilisation, the United Nations Convention on the [page 45] Rights of Persons with Disabilities requires states to protect the rights of persons with disabilities, including children, to retain their fertility on an equal basis with others.118 The Committee on the Rights of the Child has also recommended that Australia [e]nact non-discriminatory legislation that prohibits non-therapeutic sterilization of all children, regardless of disability; and to ensure that when sterilization which is strictly carried out on therapeutic grounds does occur, that this be subject to the free and informed consent of children, including those with disabilities.119

The principles of universality and individual dignity also stress the need to secure the individual rights of every individual child and not simply children as a class. As Santos Pais explains: while it is important to improve the situation of children as a group, it is essential to go beyond good averages of a high rate of progress … [and]… consider the specific reality of those children who have not been affected by the wave of general progress, who have remained invisible or forgotten and who are becoming increasingly vulnerable and marginalised.120

The challenge, therefore, is to recognise the need to identify and respond to the individual needs of every child rather than become preoccupied with generalist approaches that simply set targets or indicators with respect to the treatment of children.

The four specific principles of a children’s rightsbased approach 2.20 In addition to the three guiding principles of a rights-based approach, which are drawn from international human rights law generally, there are four articles under the CRC that have been identified by the Committee as the general principles of a child rights-based approach.121 They are the principle of non-discrimination; the requirement that the best interests of children must be a primary consideration in all matters affecting them; the right to survival and development; and the right to participation.

Non-discrimination 2.21 Non-discrimination is a fundamental norm of international human rights law and is included in Art 2 of the CRC, which provides that: 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 child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion,

[page 46] political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

This provision requires that children’s rights shall not be nullified or hindered by any distinction, exclusion, restriction or preference based on any ground, irrespective ofwhether such an effect was intended.122 At the same time, it does not require identical treatment of children123 and demands that States Parties must sometimes ‘take affirmative action in order to diminish or eliminate conditions which cause or perpetuate discrimination’.124 Of particular concern to the Committee are Indigenous children within Australia (see Chapter 13),125 and the Committee has recommended that Australia ‘evaluate disparities in the enjoyment by children of their rights and on the

basis of that evaluation undertake the necessary steps to prevent and combat discriminatory disparities’.126

Best interests 2.22 Article 3(1) of the CRC requires that the best interests of the child must be a primary consideration in all actions concerning children. It is an obligation that extends to all actions undertaken by ‘public or private social welfare institutions, courts of law, administrative authorities or legislative bodies’. According to the Committee, this obligation demands a child-impact assessment and evaluation with respect to all legislation and policy development to determine the impact of any proposed law, policy or budgetary allocation on children’s rights.127 Although the best interests principle is firmly entrenched within the CRC and various domestic legislative regimes,128 it has been the subject of repeated criticism on the grounds of its alleged indeterminacy and inherent subjectivity.129 Such criticisms, however, suffer from the common problem of reading the articles of the CRC in isolation. While the best interests principle remains a fluid and flexible concept, it is not unfettered. Rather, it remains informed and constrained by the rights and principles provided for under the CRC.130 [page 47] It is important to note that the scope of the best interests principle extends beyond the specific articles of the CRC. This independent sphere of operation, however, is not to be appropriated in such a way as to coincide conveniently with, or justify the personal whims, preferences and prejudices of, individuals who invoke the best interests principle to serve their own agendas. Unfortunately, such an approach is all too common. Thus, for example, the move in 2003 to amend the Family Law Act 1975 (Cth) to create

a presumption of 50/50 shared physical care131 and the subsequent, though somewhat different, amendments aimed at promoting shared parenting132 were couched as being necessary to secure the child’s best interests, as were the measures of the then Liberal Government’s ‘Intervention’ in the Northern Territory in 2006–07: see Chapter 13. In each of these contexts, an assessment of the best interests of children should have been informed by the empirical evidence, rather than the subjective interpretation, or calculated misappropriation of this principle, by those seeking to pursue their own agendas under the guise of children’s best interests. If such an approach had been adopted, it would have revealed that the Family Law Act amendments may well expose children to greater risk of harm,133 while the report of Wild and Anderson, Little Children are Sacred,134 suggested that a far more consultative, holistic and culturally sensitive approach than the ‘Intervention’ was required if the best interests of Indigenous children were to be secured. Importantly, the requirement that children’s best interests must be taken into consideration in all matters affecting them is not necessarily designed to displace all other legitimate considerations. Although States Parties carry a heavy onus to justify any actions or omissions that will be contrary to children’s best interests, children’s best interests are not the only consideration or even the paramount consideration relevant in decisionmaking.135 Thus, the insistence by the Committee that children ‘should be placed at the centre of the response to the [HIV/AIDS] pandemic’136 does not mean that their interests must be the sole and overriding consideration. It does, however, operate to recalibrate the balancing process and make visible the interests of children, which historically have been subsumed under those of adults, or ignored or devalued. Examples of attempts to adopt such an approach can be seen in the report of [page 48]

the Victorian Law Reform Commission on Sexual Offences137 and the reference of the Australian Law Reform Commission on Privacy,138 both of which dedicated significant attention to children.

Survival and development 2.23 The right to survival and development under Art 6(1) of the CRC is an umbrella concept of direct relevance to all the rights to which children are entitled. The Committee has explained that it expects ‘States to interpret “development” in the broadest sense as an holistic concept, embracing the child’s physical, mental, spiritual, moral, psychological and social development’.139 In isolation, the notion of development can suffer from the same indeterminacy or subjectivity critique that is often directed at the best interests principle. But, like the best interests principle, a child’s development, while a flexible concept, must be informed by, and assessed by reference to, the other rights and their underlying values as listed in the CRC, and the empirical data rather than subjective assessments of decision-makers. The Aboriginal and Torres Strait Islander Child Placement Principles140 provide an illustration of the requirements imposed by the right to survival and development. The removal of an Aboriginal or Torres Strait Islander child from his or her parents may well be necessary to secure the physical and emotional well-being of the child. However, a failure to give any consideration as to how to protect and develop the cultural, spiritual and linguistic aspects of the child’s identity in the determination of the appropriate placement would compromise the child’s effective enjoyment of the right to survival and development. To take another example, an education program that made no provision for children to have unstructured free time may well satisfy the right to education under Art 32 and the obligation to facilitate the intellectual development of a child, but it would compromise the right to play under Art 31 and impede the recognised development benefits to children associated with play and leisure time.

Participation 2.24 Traditionally, and in many contemporary settings, especially within the law, children have remained seen and not heard. A rights-based approach seeks not only to dismantle this paradigm and give children a voice, but demands that [page 49] the views of children have an impact on decisions regarding matters affecting them. Importantly, this impact is not necessarily determinative. Rather, due consideration must be given to a child’s views in light of his or her age and level of maturity.141 Australian courts and the Australian legal system have increasingly recognised the need to listen to the views of children in matters that directly affect them.142 However, the Committee has recommended that Australia ‘promote the meaningful and empowered participation of all children, at all levels of government and within the family, community, and schools, including within student council bodies — with particular attention to children in vulnerable situations’.143 Although Art 12 of the CRC underscores the principle of participation, it should not be interpreted in isolation from other articles under the CRC and exists as part of a package of rights that together form what is often referred to as a ‘right to participation’.144 Especially relevant in this context are the rights for freedom of expression (Art 13), freedom of thought, conscience and religion (Art 14) and freedom of association (Art 15).145 The emphasis placed on the autonomy of a child under Art 12 is often seen to be in potential conflict with the priority accorded to the welfare of a child by the best interests principle under Art 3.146 But it is wrong to treat the relationship between these two fundamental principles in such binary terms, and the objective is to ensure an appropriate balance between the autonomy

of a child and the protection of his or her physical and mental integrity.147 This process has been described by Eekelaar as dynamic ‘self determinism’148 and, according to Morrow, requires ‘not the straightforward delegation of decision making to children but rather enabling children to make decisions in controlled conditions the overall intention being to enhance their [page 50] capacities for mature well founded choices’.149 Thus the Committee has explained that the relationship between the two provisions must be seen as ‘complementary’.150

The implementation of a rights-based approach is a process 2.25 The conceptual understanding and practical use of human rights standards are invariably limited to their normative value. In other words, human rights are generally conceived of as an end point, with an exclusive focus placed on an investigation as to whether that point has been achieved. This is an important inquiry; however, it is unnecessarily restrictive and fails to appreciate the instrumental role of human rights in shaping the means or process by which that end point is to be achieved. Although there is no consensus as to the specific steps required in this process,151 as a minimum, the general and specific principles outlined above must inform the process. It is, therefore, buttressed by the notions of interdependence and indivisibility, accountability, universality, nondiscrimination, the best interests of the child, survival and development, and participation. In terms of practical steps, the first stage of a human rightsbased approach must be to undertake an evaluation and identification of children’s needs by reference to their rights. This inquiry has to be linked to

an identification of the various factors — social, cultural, economic, geographic, political, environmental and personal — that undermine the realisation of these rights. The collection of such data must then be used to develop a comprehensive strategy using all necessary measures — legislative, administrative, economic, educational and other social measures — to build the capacities of the people responsible for the realisation of children’s rights and the elimination or minimisation of the various structural, social and institutional factors that have impeded this objective. Many states, including Australia, are often prepared to draft policies and practices that have been designed to realise children’s rights — initiatives that have been welcomed by the Committee.152 However, such measures are insufficient and must be accompanied by a genuine and committed effort to implement the relevant strategies and ensure they remain subject to monitoring and evaluation in accordance with the content of the relevant normative standards. It is within this context that the Committee has recommended that Australia consider establishing a technical body or mechanism, with adequate human, technical and financial resources, for advising the Council of Australian Governments on the coherence of the policies and strategies of its entities and ministries responsible for the implementation of the Convention throughout its territory.153

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The implementation of a rights-based approach must be multi-sectoral and interdisciplinary 2.26 As a discourse, human rights — and by implication children’s rights — have a reputation for being excessively legalistic. However, as the above discussion demonstrates, the effective implementation of a rights-based approach requires a much more holistic approach, involving a consultative and participatory process in which the views and interests of all relevant

actors — governments, academics, professionals, community groups, religious leaders, parents and children — must be taken into account. As a consequence, a rights-based approach demands both a multi-sectoral and an interdisciplinary response. Sole or excessive reliance upon a legal response will prove to be ineffective. Thus, for example, the adoption of legislative measures with respect to child protection will never of itself remedy the deficiencies in a child protection system if insufficient resources are allocated to provide the appropriate services and supports that children and their families require beyond the courtroom. Similarly, the criminalisation of a practice such as female genital cutting may outlaw this practice within the Australian community, but it is unlikely to deter those groups that insist upon this practice and is only likely to serve to drive it underground. To take another example, the criminal justice setting may place an emphasis on rehabilitation and eschew detention in favour of social reintegration, but such an approach will be of limited value if there are inappropriate or inadequate education, housing and health services to assist a young offender in his or her reintegration efforts.

The implementation of a rights-based approach must be culturally sensitive and locally owned 2.27 International human rights are invariably subject to the criticism that they seek to impose universal standards that reflect and prioritise Western values at the expense of non-Western values. Children’s rights are certainly not immune from such accusations.154 A discussion of the cultural relativist debate is not necessary here.155 Rather, it is sufficient to make the following observations. First, there is always the risk that human rights — and, indeed, children’s rights — can be used to impose agendas and values that are inappropriate and ineffective in responding to the specific cultural needs of children. However, the requirement of participation, which is a critical feature of a genuine rights-based approach, demands that the implementation

of a rights-based approach must be sensitive to, informed by and reflect the cultural needs and interests of children. As a consequence, although human rights are universal, a degree of flexibility is granted to states in the implementation of measures to secure children’s rights in recognition of the need to accommodate cultural differences. A global one-size-fits-all approach is, therefore, not appropriate. At the same time, this flexibility does not allow [page 52] for cultural or traditional practices to be invoked as a defence to violations of children’s rights. Indeed, the CRC demands under Art 24(3) that ‘States Parties shall take all effective and appropriate measures with a view to abolishing traditional practices prejudicial to the health of children’. However, the process and measures required for the elimination of such practices are not to be imposed or defined exclusively by reference to the values and expectations of those in a position of power. On the contrary, a rights-based approach favours collaboration and consultation rather than the imposition of hegemonic strategies to address the violations of children’s rights. Strategic partnerships both between states and within states at the local, regional and national level are critical to this process, which must be participatory in design, implementation and evaluation and locally owned if it is to be effective and sustainable. The intervention of the Federal Government in the Northern Territory in 2006–7 provides a vivid illustration of these principles, albeit by way of bad practice. The report of Wild and Anderson, Little Children are Sacred,156 confirmed the existence of widespread sexual abuse of children within Aboriginal communities. In response, the Federal Government adopted a strategy that failed to incorporate any of the recommendations of this report. Indeed, it designed an approach without any genuine consultation with

Aboriginal people, despite the recommendations of Wild and Anderson that such a measure was of ‘critical importance’.157

A rights-based approach requires the reallocation of power and resources 2.28 Ultimately, the adoption of a rights-based approach as a paradigm to address children’s diverse and special needs is about the reallocation of resources and power within communities. International law concedes that the realisation of economic and social rights is progressive and subject to the availability of resources. As a consequence, states are quick to justify their failure to secure the enjoyment of rights as a product of their limited resources. The Committee, however, has stressed that when allocating resources, ‘[t]he budget process should ensure that the rights of boys and girls are a primary consideration and realize necessary public spending to respect, promote, protect and fulfil those rights at national and sub-national levels’.158 Despite such a plea, in practice the political process will invariably determine the way in which scarce resources are allocated, laws are made, and policies and procedures are designed and implemented. A rights-based approach requires the recognition of this reality and a preparedness to challenge, dismantle and reconfigure existing power relations and structures within the communities where the decisions affecting children’s rights are made. It is an ambitious task and not easily achieved, especially [page 53] given the reluctance to embrace the notion of children as rights bearers. It must begin, however, by reorienting the terms of the debate towards the normative standards to which all children are universally entitled.

Conclusion 2.29 A few years ago the former United Nations High Commissioner for Human Rights, Louise Arbour, declared that: Today global awareness of human rights including children’s rights is at an all time high … The Convention has brought about an understanding that children are not the property of parents or guardians, not objects of necessity or goodwill but are rights holders …159

Awareness of the concept of children’s rights may well be greater today than at any other time in history, but it is wrong to assume that this has translated into the understanding of children as asserted by the former High Commissioner. The reality remains far removed from the ideal in most countries and Australia is no exception. Although the idea of children as rights bearers remains contested and the full realisation of these rights is yet to be achieved, the act of granting children human rights confers on them the right to claim their legitimate entitlements and, in doing so, reconceptualises the power relationship between children, adults and the state. Importantly, it does not privilege children to the exclusion of all other interests within society — a child’s best interests are in most circumstances only to be a primary rather than the overriding consideration.160 Such an approach does, however, demand that children can no longer be ignored, devalued or marginalised in legal, policy and social debates. Nor can the rationale with respect to action for children be based on their potential as social capital. A rights-based approach, therefore, demands a new way of thinking that challenges and threatens existing social structures and power relations. It is about confronting the marginalisation, paternalism and benevolence that has characterised their treatment; recognising their dignity, entitlements, capacity and evolving autonomy; accepting social responsibility and burden sharing in relation to the realisation of their entitlements; and creating participatory, sustainable and empowering processes to ensure the realisation of their rights which have been accepted by the Australian Government upon its ratification of the CRC.

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Further reading Archard, D, Children: Rights and Childhood, 2nd ed., Routledge, London, 2004. Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84, November 1997. Fortin, J, Children’s Rights and the Developing Law, 3rd ed., Cambridge University Press, Cambridge, 2009. Freeman, M, The Moral Status of Children: Essays on the Rights of the Child, Martinus Nijhoff, The Hague, 1997. Freeman, M (ed.), Law and Childhood Studies, Oxford University Press, Oxford, 2012. Invernizzi, A and Williams, J (eds), The Human Rights of Children: From Visions to Implementation, Ashgate, Farnham, 2011. Guggenheim, M, What’s Wrong with Children’s Rights, Harvard University Press, Cambridge, 2005. Hodgkin, R and Newell, P, Implementation Handbook for the Convention on the Rights of the Child, 3rd ed., UNICEF, Geneva, 2007. MacDonald, A, The Rights of the Child: Law and Practice, Family Law, Bristol, 2011. Mnookin, R and Weisberg, D, Child, Family and State: Problems and Materials on Children and the Law, 5th ed., Aspen Publishers, New York, 2005. Parkinson, P and Cashmore, J, The Voice of a Child in Family Law Disputes, Oxford University Press, Oxford, 2008. Ruck, M and Freeman, M (eds), Handbook of Children’s Rights: Global and Multidisciplinary Perspectives, Routledge, Abingdon, forthcoming 2017.

Van Bueren, G, The International Law on the Rights of the Child, Kluwer Law International, The Hague, 1998. The following journals will provide further useful articles: International Journal of Children’s Rights International Journal of Law, Policy and the Family

1.

2. 3.

4. 5.

6. 7. 8. 9.

Professor of Law, University of Melbourne. Special thanks to Cate Read from the Legal Research Service at Melbourne Law School for her research assistance. This chapter was also prepared with assistance from the ARC120104 Discovery Grant DP ‘Children’s Rights: From Theory to Practice’. H Rodham, ‘Children Under the Law’ (1973) 43 Harvard Educational Review 487 at 487. See, for example, J Tobin, ‘Justifying Children’s Rights’ (2013) 21 International Journal of Children’s Rights 395; D Reynaert, M Bouverne-De Bie and S Vandevelde, ‘Between “Believers” and “Opponents”: Critical Discussions on Children’s Rights’ (2012) 20 International Journal of Children’s Rights 155 at 159; M Freeman, ‘Why It Remains Important to Take Children’s Rights Seriously’ (2007) 15 International Journal of Children’s Rights 5; D Archard, Children: Rights and Childhood, 2nd ed., Routledge, London, 2004, p. 218; M Guggenheim, What’s Wrong with Children’s Rights, Harvard University Press, Cambridge, 2005; R Dixon and M Nussbaum, ‘Children’s Rights and a Capabilities Approach: The Question of Special Priority’ (2012) 97 Cornell Law Review 549 at 553; L Ferguson, ‘Not Merely Rights for Children but Children’s Rights: The Theory Gap and the Assumption of the Importance of Children’s Rights’ (2013) 21 International Journal of Children’s Rights 177; M Cordero Arce, ‘Towards an Emancipatory Discourse of Children’s Rights’ (2012) 20 International Journal of Children’s Rights 365 at 366–7; J Eekelaar, ‘The Emergence of Children’s Rights’ (1986) 6 Oxford Journal of Legal Studies 161. See J Tobin, ‘Increasingly Seen and Heard: The Constitutional Recognition of Children’s Rights’ (2005) 21 South African Journal on Human Rights 86. For a more detailed discussion, see J Tobin, ‘Understanding a Human Rights Based Approach to Matters Involving Children: Conceptual Foundations and Strategic Considerations’ in A Invernizzi and J Williams (eds), The Human Rights of Children: From Visions to Implementation, Ashgate, Farnham, 2011, pp. 61–98; J Tobin, ‘Beyond the Supermarket Shelf: Using a Rights Based Approach to Address Children’s Health Needs’ (2006) 14 International Journal of Children’s Rights 275. Guggenheim, What’s Wrong with Children’s Rights, note 3 above. J Hadley, Introduction to Roman Law, 1991, pp. 119–21, as cited in B Garner (ed.), Black’s Law Dictionary, 7th ed., West Group, St Paul, 1999, p. 1188. The full text of Mill’s work can be found at www.serendipity.li/jsmill/on_lib.xhtml (accessed 15 December 2007). See, for example, Bowen LJ in the late-19th-century English decision Re Agar-Ellis (1883) 24 Ch D 317 at 336, where he warned that any move by a court to override ‘the natural jurisdiction’ of a

10.

11. 12. 13. 14. 15. 16. 17. 18. 19.

20. 21.

22.

23. 24.

25. 26. 27.

father over his child ‘would be really to set aside the whole course and order of nature, and it seems to me it would disturb the very foundation of family life’. See generally, P Alston, J Tobin and M Darrow, Laying the Foundations for Children’s Rights: An Independent Study of Some Key Legal and Institutional Aspects of the Impact of the Convention on the Rights of the Child, UNICEF Innocenti Research Centre, Florence, 2005, pp. 1–8. See generally, Guggenheim, What’s Wrong with Children’s Rights, note 3 above, pp. 5–15; Eekelaar, ‘The Emergence of Children’s Rights’, note 3 above. Alston, Tobin and Darrow, Laying the Foundations for Children’s Rights, note 10 above, p. 3. Ibid, p. 3. Ibid, p. 4. Ibid, p. 5. See, for example, C Kempe and R Helfer (eds), Helping the Battered Child and His Family, Lippincott, Philadelphia, 1972. See, for example, B Gross and R Gross (eds), The Children’s Rights Movement: Overcoming the Oppression of Young People, Anchor Books, New York, 1977. See Guggenheim, What’s Wrong with Children’s Rights, note 3 above, pp. 8–12. 393 US 503 (1969) (the United States Supreme Court famously declared, in its assessment as to the validity of a restriction on the wearing of armbands by students in protest against the Vietnam War, that ‘[s]tudents in school as well as out of school are “persons” under our Constitution’). 387 US 1 (1967) (the United States Supreme Court held that children were entitled to due process rights in criminal proceedings). [1986] 1 AC 112 (the House of Lords held that parental rights were recognised by the law only as long as they were needed for the protection of the child, and such rights yielded to the child’s right to make their own decisions when they reached a sufficient understanding and intelligence to be capable of making up their own mind. Thus, on the facts, a girl under 16 did not, merely by reason of her age, lack legal capacity to consent to contraceptive advice and treatment by a doctor). See also Secretary, Department of Health and Community Services (NT) v JWB and SMB (Marion’s case) (1992) 175 CLR 218; 106 ALR 385. Within the Australian context, see, for example, M Jones and LA Basser Marks (eds), Children on the Agenda: The Rights of Australia’s Children, Prospect Publishing, Sydney, 2001; K Funder (ed.), Citizen Child: Australian Law and Children’s Rights, Australian Institute of Family Studies, Melbourne, 1996. See Tobin, ‘Justifying Rights for Children’, note 3 above; Tobin, ‘Understanding a Human Rights Based Approach to Matters Involving Children’, note 5 above at 61. See, for example, Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child, 17th Report, Commonwealth of Australia, Canberra, 1998, Additional Comments by Senators Abetz, McGauran and O’Chee. Guggenheim, What’s Wrong with Children’s Rights, note 3 above, pp. 13–14. L Purdy, In Their Best Interest? The Case against Equal Rights for Children, Cornell University Press, New York, 1992. M King, ‘Children’s Rights as Communication: Reflections on Autopoietic Theory and the United Nations Convention’ (1994) 57 Modern Law Review 385; M King and C Piper, How the Law Thinks about Children, 2nd ed., Ashgate, Aldershot, 1995.

28. 29.

30. 31. 32. 33. 34.

35. 36.

37. 38. 39. 40. 41. 42. 43. 44. 45. 46.

47. 48.

O O’Neil, ‘Children’s Rights and Children’s Lives’ (1988) 98 Ethics 445. B Arneil, ‘Becoming Versus Being: A Critical Analysis of the Child in Liberal Theory’ in D Archard and C MacLeod (eds), The Moral and Political Status of Children, Oxford University Press, Oxford, 2002, p. 70. Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child, note 24 above, p. ix. Guggenheim, What’s Wrong with Children’s Rights, note 3 above, pp. 13–14. Purdy, In Their Best Interest?, note 26 above. P Pinheiro, Rights of the Child: Report of the Independent Expert for the United Nations Study on Violence against Children, UN Doc A/61/299, 29 August 2006, [38]-[47]. See also UNICEF Office of Research, Children of the Recession: The Impact of the Economic Crisis on Child Well-Being in Rich Countries, Innocenti Report Card 12, Florence, 2014; P Davidson and R Evans, Poverty in Australia 2014, 4th ed., Australian Council of Social Service, Strawberry Hills, 2014 (noting that nearly 18 per cent of children were living below the poverty line in Australia in 2014). See J Tobin, ‘Understanding Children’s Rights: A Vision Beyond Vulnerability’ (2015) 84 Nordic Journal of International Law 155. See J Tobin, ‘Fixed Concepts but Changing Conceptions: Understanding the Relationship between Children and Parents under the CRC’ in M Ruck (ed.), Handbook of Children’s Rights: Global and Multidisciplinary Perspectives, Routledge, Abingdon, forthcoming 2017. For a more detailed discussion, see Tobin, ‘Justifying Children’s Rights’, note 3 above at 9. See CRC Arts 5 and 12. See also G Lansdown, The Evolving Capacities of Children, UNICEF, Innocenti Research Centre, Florence, 2005. Freeman, ‘Why It Remains Important to Take Children’s Rights Seriously’, note 3 above at 9. Vienna Convention on the Law of Treaties Art 26: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’. Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention, 2014. See, for example, Family Law Act 1975 (Cth) s 60B(4), as inserted by Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Sch 1 cl 13. Report 84, November 1997. Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child, note 24 above, [9.101]. National Children’s and Youth Law Centre and YouthLaw, Preliminary Review of the Implementation Status of the Seen and Heard Report, Discussion Paper 9, November 2007. Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention: Concluding Observations: Australia, UN Doc CRC/C/AUS/CO4, 28 August 2012. The Committee is a body of 18 independent experts whose role is to monitor states’ compliance with their obligations under the CRC. Ibid. See also the earlier observations of the Committee: CRC/C/15/Add. 79 (21 October 1997) and CRC/C/15/Add. 268 (20 October 2005). Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure. There are two other optional protocols to which Australia is a party: Optional Protocol to the

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57. 58. 59.

60. 61.

Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography; and Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict. Australian Human Rights Commission, The Forgotten Children, note 41 above; Human Rights and Equal Opportunity Commission, A Last Resort? National Inquiry into Children in Immigration Detention, 2004. See Australian Human Rights Commission, Children’s Rights, www.humanrights.gov.au/ourwork/childrens-rights/projects/current (accessed 22 January 2016). See A Byrnes, ‘The Human Rights (Parliamentary Scrutiny) Act 2011 and The Work Of The Parliamentary Joint Committee on Human Rights: Bright Light, But What Impact?’ (March 2015) (copy on file with author); S Rajanayagam ‘Does Parliament Do Enough? Evaluating Statements of Compatibility under the Human Rights (Parliamentary Scrutiny) Act (2015) 38 University of New South Wales Law Journal 1046. For example, with respect to the Victorian Charter on Human Rights and Responsibilities, see Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 17, 23, 24(3) and 25(3); Human Rights Act 2004 (ACT) ss 11, 19, 20, 21(3) and 22(3). The 2015 review of the Charter recommended the adoption of such a measure: M Brett Young, From Commitment to Culture: The 2015 Review of the Charter of Human Rights and Responsibilities Act 2006, State of Victoria, 2015, Recommendation 27. But it remains to be seen whether the Victorian Government adopts this recommendation. See, for example, Secretary, Department of Human Services v Sanding (2011) 36 VR 221; [2011] VSC 42 (discussing the right to a fair hearing and the best interests of a child); A and B v Children’s Court (Vic) [2012] VSC 589 (discussing the right of a child to representation); Re Beth (2013) 42 VR 124; [2013] VSC 189 (discussing the rights and best interests of a child subject to a secure welfare order). See also Human Rights Act 2004 s 31(1). The role of the CRC in the Family Court was heavily influenced by its former Chief Justice, Alastair Nicholson. See M Kirby, ‘Chief Justice Nicholson, Australian Family Law and International Human Rights’ (2004) 5 Melbourne Journal of International Law 221. This influence was maintained by his successor, Chief Justice Bryant: see, for example, Re Jamie (2013) 278 FLR 155; [2013] FamCAFC 110 (examining the issue of a child’s capacity to consent to gender reassignment in light of the provisions under the CRC). See, for example, Director of Public Prosecutions v TY (No. 3) (2007) 18 VR 241; [2007] VSC 489 per Bell J. See, for example, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 128 ALR 353; [1995] HCA 20. For a more detailed examination of this issue, see J Tobin ‘Judging the Judges: Are They Adopting the Rights Approach in Matters Involving Children’ (2009) 33 Melbourne Journal of International Law 579. Department of Social Services, Protecting Children Is Everyone’s Business: National Framework for Protecting Australia’s Children 2009–2020, Commonwealth of Australia, 2009, p. 12. Department of Families, Housing, Community Services and Indigenous Affairs, An Outline of National Standards for Out-of-Home Care, Commonwealth of Australia, July 2011, pp. 2, 6.

62. 63.

64. 65. 66.

67. 68.

69.

70.

71.

72. 73. 74. 75. 76. 77.

Department of Education, Employment and Workplace Relations, Belonging, Being & Becoming: The Early Years Learning Framework for Australia, Commonwealth of Australia, 2009, p. 5. Department of Family and Community Services, Tomorrow’s Children: Australia’s National Plan of Action against the Commercial Sexual Exploitation of Children, Commonwealth of Australia, 2000, p. 6. Family Law Act 1975 s 60B(4), as inserted by Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 Sch 1 cl 13. Legal and Constitutional Affairs References Committee, Donor Conception Practices in Australia, Commonwealth of Australia, February 2011. See Royal Commission into Institutional Responses to Child Sexual Abuse, Terms of Reference, 2014, www.childabuseroyalcommission.gov.au/about-us/terms-of-reference (accessed 13 February 2016). See, for example, R Kaspiew et al, Australian Institute of Family Studies, Independent Children’s Lawyers Study, Final Report, 2nd ed., Commonwealth of Australia, June 2014. See, for example, Family Law Council, Report on Parentage and the Family Law Act, Commonwealth of Australia, December 2013; Family Law Council, Interim Report on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems (Terms 1 and 2), Commonwealth of Australia, June 2015. See, for example, UNICEF, Human Rights for Children and Women: How UNICEF Helps Make Them a Reality, New York, 1999; Save the Children, Child Rights Programming: How to Apply Rights-Based Approaches to Programming, 2nd ed., 2006. See also UNICEF, Global Evaluation of the Application of the Human Rights-Based Approach to UNICEF Programming, Final Report — Vol. 1, March 2012. For a more detailed discussion of this approach, see Tobin, ‘Understanding a Human Rights Based Approach to Matters Involving Children’, note 5 above; Tobin, ‘Beyond the Supermarket Shelf’, note 5 above. M Ignatieff, ‘Moral Globalisation and its Discontent’, Presentation at a Conference on Human Rights, Institute for Public Policy Research, London, 25 November 2003, cited in L Piron, ‘RightsBased Approaches and Bilateral Aid Agencies: More than a Metaphor?’ (2005) 36(1) IDS Bulletin 19 at 19. Re Woolley; Ex parte Applicants M276/2003 (2004) 225 CLR 1; 210 ALR 369; [2004] HCA 49 at [157]. (2003) 199 ALR 604; 30 Fam LR 181; [2003] FamCA 451 at [383]. Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child, note 24 above, p. ix. A Nicholson, Australia’s Children: Does the Law Offer Them Sufficient Protection?’, The 21st Lionel Murphy Memorial Lecture, Sydney, 28 November 2007. Office of the Prime Minister, Amendment to the Sex Discrimination Act 1984 (Cth), media release, 1 August 2000. McBain v Victoria (2000) 99 FCR 116; 177 ALR 320; [2000] FCA 1009 per Sundberg J. See J Tobin and R McNair, ‘Public International Law and the Regulation of Private Spaces: Does the Convention on the Rights of the Child Impose an Obligation on States to Allow Gay and Lesbian Couples to Adopt?’ (2009) 23 International Journal of Law, Policy and the Family 110.

78.

See Victorian Law Reform Commission, Assisted Reproductive Technology and Adoption, Final Report, March 2007, pp. 30–4, 204–15. 79. United Nations Secretary General, Renewing the United Nations: A Programme for Reform, UN Doc A/51/950, 14 July 1997. 80. The Human Rights-Based Approach: Statement of Common Understanding, Inter-Agency Workshop on a Human Rights-Based Approach in the context of UN reform, 3–5 May 2003, annexed to UNICEF, The State of the World’s Children 2004, New York, 2003. 81. R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246; [2005] UKHL 15. 82. Ibid at [71]. 83. See, for example, S Garbutt, Ministerial Statement — Putting Victoria’s Children First, Parliamentary Debates, Legislative Assembly, 4 June 2003. 84. N Cantwell, ‘Is the Rights Based Approach the Right Approach?’, Paper delivered at the Defence for Children International (DCI) International Symposium, Geneva, 22 November 2004. 85. See T v United Kingdom (1999) 7 BHRC 659; [1999] ECHR 170; V v United Kingdom (1999) 30 EHRR 121; [1999] ECHR 171; SC v United Kingdom (2004) 17 BHRC 607; [2004] ECHR 263. 86. Committee on the Rights of the Child, General Comment No 4 — Adolescent Health and Development in the Context of the Convention on the Rights of the Child, UN Doc CRC/GC/2003/4, 1 July 2003, [47]. 87. E Williams, ‘Small Hands, Big Voices? Children’s Participation in Policy Change in India’ (2005) 36(1) IDS Bulletin 82 at 83. 88. (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC) (26 September 2007). 89. Ibid at [48]. 90. Ibid at [46]. 91. Ibid at [67]. 92. See, for example, C Victoria et al, ‘Applying an Equity Lens to Child Health and Mortality: More of the Same is Not Enough’ (2003) 362 The Lancet 233; T Evans et al (eds), Challenging Inequities in Health: From Ethics to Action, Oxford University Press, New York, 2001. 93. See, for example, S Richardson and M Prior, No Time to Lose: The Well-Being of Australia’s Children, Melbourne University Press, Melbourne, 2005. 94. See, for example, CRC Art 2(1): ‘State parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind …’. 95. Vienna Convention on the Law of Treaties Art 26. 96. See Arts 10(3), 14(4), 23(4) and 24. 97. See Art 10. 98. See Arts 3(h), 4(3), 7, 8(2)(b), 16(5), 18(2), 23, 24(2), 24(3) and 25(b). 99. S v M (CCT 53/06) [2007] ZACC 18; 2008 (3) SA 232 (CC) (26 September 2007) at [16] per Sachs J. 100. See, for example, M Freeman, ‘The Future of Children’s Rights’ (2000) 14 Children & Society 277 at 282–5. 101. See for example, A Macdonald, The Rights of the Child: Law and Practice, Family Law, Bristol, 2011; J Fortin, Children’s Rights and the Developing Law, 3rd ed., Cambridge University Press, Cambridge, 2009; R Hodgkin and P Newell, Implementation Handbook for the Convention on the

102.

103.

104. 105. 106. 107. 108. 109. 110. 111. 112.

113.

114. 115. 116. 117.

118. 119. 120. 121.

122.

Rights of the Child, 3rd ed., UNICEF, Geneva, 2007. See Government of the Republic of South Africa v Grootboom (CCT 11/00) [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000); Minister of Health v Treatment Action Campaign (No. 2) (CCT 8/02) [2002] ZACC 15; 2002 (5) SA 721; 2002 (10) BCLR 1033 (5 July 2002). Available online at United Nations Human Rights Office of the High Commissioner, Committee on the Rights of the Child, www.ohchr.org/EN/HRBodies/CRC/Pages/CRCIndex.aspx/; go to ‘General Comments’ (accessed 14 February 2016). Committee on the Rights of the Child, General Comment 4, note 86 above, [41]. UNICEF, Human Rights for Children and Women,note 69 above, pp. 5–7. World Conference on Human Rights, Vienna Declaration and Programme of Action, UN Doc A/CONF.157/23, 12 July 1993, [5]. UNICEF, Human Rights for Children and Women, note 69 above, p. 5. (1998) 5 BHRC 293; 29 EHRR 245. Ibid at [115]. (2001) 10 BHRC 384; [2001] ECHR 333. CRC Art 4. Human Rights Committee, ‘General Comment No 6 — Article 6 (Sixteenth Session, 1982)’, Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 at 6, 29 July 1994 at [5]. See CRC Arts 18, 19, 24 and 27; Committee on the Rights of the Child, ‘Day of General Discussion’ on Violence Against Children within the Family and in Schools, 28 September 2001 in Convention on the Rights of the Child, Report of the Twenty-Eighth Session, UN Doc CRC/C/111, 28 November 2001, [728]. UNICEF, Human Rights for Children and Women, note 69 above, p. 6. S Liebenberg, ‘The Value of Human Dignity in Interpreting Socio-Economic Rights’ (2005) 21 South African Journal of Human Rights 1 at 6. World Bank, Children and Youth: Conceptual Framework, December 2004. Committee on the Rights of the Child for Australia, Concluding Observations: Australia, note 46 above, [44(a)]. See also Committee on the Rights of the Child, General Comment No 8 — The Right of the Child to Protection from Corporal Punishment and other Cruel or Degrading Forms of Punishment, UN Doc CRC/C/GC8, 2 March 2007, [7]: ‘The Committee has repeatedly made clear in its concluding observations that the use of corporal punishment does not respect the inherent dignity of the child …’. Convention on the Rights of Persons with Disabilities Art 23(c). Committee on the Rights of the Child, Concluding Observations: Australia, note 46 above, [58(f)]. M Santos Pais, A Human Rights Conceptual Framework for UNICEF, Innocenti Essays No 9, UNICEF International Child Development Centre, Florence, 1999, pp. 8–9. Committee on the Rights of the Child, General Comment No 5 — General Measures of Implementation of the Convention on the Rights of the Child, UN Doc CRC/GC/2003/5, 27 November 2003, [12]. Human Rights Committee, ‘General Comment No 18 — Non-Discrimination (Thirty-Seventh Session, 1989)’, Compilation of General Comments and General Recommendations Adopted by

123. 124. 125. 126. 127.

128. 129.

130.

131.

132.

133. 134.

135. 136. 137. 138. 139. 140.

Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.6 at 146, 12 May 2003 at [6]. Ibid at [12]. Ibid at [10]. Committee on the Rights of the Child, Concluding Observations: Australia, note 46 above, [29]. Ibid, [30]. Committee on the Rights of the Child, General Comment No 5, note 121 above, [45]. See also Committee on the Rights of the Child, General Comment No 14 on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration, UN Doc CRC/C/GC/14, 29 May 2013, [35], [99]. See, for example, Family Law Act 1975 (Cth) Pt VII Div 1 Subdiv BA; Children, Youth and Families Act 2005 (Vic) s 10. For a discussion of this principle, see Committee on the Rights of the Child, General Comment No 14, note 127 above; J Eekelaar, ‘The Role of the Best Interests Principle in Decisions Affecting Children and Decisions About Children’ (2015) 23 International Journal of Children’s Rights 3; Tobin, ‘Justifying Children’s Rights’, note 3 above at 22–3. Committee on the Rights of the Child, General Comment No 14, note 127 above, [32]; P Alston and B Gilmour-Walsh, The Best Interests of the Child: Towards a Synthesis of Children’s Rights and Cultural Values, UNICEF-Innocenti Studies, Siena, 1996, p. 32. Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation, Commonwealth of Australia, Canberra, December 2003. See, for example, the new ‘primary considerations’ set out in s 60CC(2) of the Family Law Act 1975 (Cth), and the new presumption of equal shared parental responsibility set out in s 61DA. For further discussion of these provisions, see Chapter 16. Nicholson, ‘Australia’s Children’, note 75 above. P Anderson and R Wild, Ampe Akelyernemane Meke Mekarle, ‘Little Children are Sacred’: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, Northern Territory Government, Darwin, 2007. However, note the discussion of the treatment of the best interests of children in family law decision making in Chapter 16. Committee on the Rights of the Child, General Comment No 3 — HIV/AIDS and the Rights of the Child, UN Doc CRC/GC/2003/3, 17 March 2003, [10]. Victorian Law Reform Commission, Sexual Offences, Final Report, July 2004, ch 5. Australian Law Reform Commission, DP 72 Review of Australian Privacy Law, discussion paper, September 2007, Vol. 3, Pt I. Committee on the Rights of the Child, General Comment No 5, note 121 above, [12]. By way of background, see generally, Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, Commonwealth of Australia, 1997, Pt 6, ch 21; R Monohan, Department of Human Services, Aboriginal Child Placement Principle Guide for Child Protection and Care Workers, State of Victoria, August 2002; C Tilbury, Aboriginal and Torres Strait Islander Child Placement Principle: Aims and Core Elements, Secretariat of National Aboriginal and Islander Child Care, June 2013; Children, Youth and Families Act 2005 (Vic) ss 12–14.

141. CRC Art 12. For a detailed examination of this provision, see Committee on the Rights of the Child, General Comment No 12 — The Right of the Child to Be Heard, UN Doc CRC/C/GC/12, 20 July 2009. 142. See, P Parkinson and J Cashmore, The Voice of a Child in Family Law Disputes, Oxford University Press, Oxford, 2008; Family Law Act 1975 (Cth) s 60CD. 143. Committee on the Rights of the Child, Concluding Observations: Australia, note 46 above, [34]. 144. Committee on the Rights of the Child, General Comment No 12, note 141 above, [2]-[3]; UNICEF, The State of the World’s Children 2003, New York, 2002, pp. 24–5. 145. Other articles of the CRC that are often interpreted to require the participation of children include: Art 9 (proceedings to separate a child from his or her parents); Art 17 (access to the media); Art 21 (adoption procedures); Art 23 (the obligation to facilitate the active participation of disabled children in society); Art 29(1) (development of a child’s personality, talents, mental and physical abilities); and Art 40(2) (participation in juvenile justice proceedings). 146. M Freeman, ‘Whither Children: Protection, Participation, Autonomy?’ (1994) 22 Manitoba Law Journal 307 at 319–20; N Thomas and C O’Kane, ‘When Children’s Wishes and Feelings Clash with Their “Best Interests”’ (1998) 6 International Journal of Children’s Rights 137. 147. Committee on the Rights of the Child, General Comment No 12, note 141 above, [74]. 148. J Eekelaar, ‘The Interests of the Child and the Child’s Wishes: The Role of Dynamic SelfDeterminism’ in P Alston (ed.), The Best Interests of the Child: Reconciling Culture and Human Rights, Clarendon Press, Oxford, 1994, p. 42. 149. V Morrow, ‘“We Are People Too”: Children’s and Young People’s Perspectives in Children’s Rights and Decision-Making in England’ (1999) 7 International Journal of Children’s Rights 149 at 166. 150. Committee on the Rights of the Child, General Comment No 14, note 127 above, [43]. 151. See, for example, Save the Children, Child Rights Programming, note 69 above; The Human RightsBased Approach, note 78 above. 152. Committee on the Rights of the Child, Concluding Observations: Australia, note 46 above, [4]. 153. Ibid, [14]. 154. V Pupavac, ‘The Infantilization of the South and the UN Convention on the Rights of the Child’ (1998) 3 Human Rights Law Review 3; S Harris-Short, ‘Listening to “the Other”: The Convention on the Rights of the Child’ (2001) 2 Melbourne Journal of International Law 304. 155. See Tobin, ‘Justifying Children’s Rights’, note 3 above at 24–9. 156. Anderson and Wild, Little Children are Sacred, note 134 above. 157. Ibid, Recommendation 1. 158. Committee on the Rights of the Child, General Comment No 19 — On Public Spending and the Rights of the Child, UN Doc CRC/C/19, 11 June 2015 (Draft Version). 159. L Arbour, ‘Happy Birthday!’ in J Connors, J Zermatten and A Panayotidis (eds), 18 Candles: The Convention on the Rights of the Child Reaches Majority, Institut International des Droits de L’Enfant, Sion, 2007, p. 7. 160. See ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166; [2011] UKSC 4 (finding that a child’s rights did not automatically trump other considerations within the context of deportation proceedings).

[page 55]

Chapter 3

The ‘Child’ In Utero and Ex Utero1 Pam Stewart and Anita Stuhmcke

Introduction 3.1 At common law, a human being does not attain legal rights2 or legal ‘personhood’ until he or she has been ‘born alive. A legal person does not exist until a child is born and living independently of its mother.3 It follows, therefore, that an unborn child cannot have the legal rights that are afforded to ‘legal persons’. This traditional assumption permeates the common law — both civil and criminal. But its allure lies in its simplicity rather than its accuracy, and in part it is a legal fiction that hides both the pragmatism of the common law in finding exceptions to the general rule and the growing legislative intervention that is changing both the legal functions of creating rights and affording protection to the unborn child, embryo or fetus.4 The classification of the fetus in law has always been a work of legal fiction, as recognised in 1989 by the Supreme Court of Canada in Tremblay v Daigle:5 The tasks of properly classifying a foetus in law and in science are different pursuits. Ascribing personhood to a foetus in law is a fundamentally normative task. It results in the

[page 56] recognition of rights and duties — a matter which falls outside the concerns of scientific classification. In short, this court’s task is a legal one. Decisions based upon broad social, political, moral and economic choices are more appropriately left to the legislature.

On closer analysis, since 1989 there has been a rapid escalation in pressure upon the law to respond to biomedical developments. Biomedical innovations — such as cloning Matilda, Australia’s first cloned sheep, in 2000 and creating the first Australian embryonic stem cell line in 2004 — have resulted in regulatory questions that cut across the disciplines of law, ethics, morals, politics, economics and religion. As a result, almost all areas of law need to address issues as to the regulation, rights and protection of the not yet conceived, the embryo, the fetus and the unborn child. What is new is not the traditional common law ‘born alive’ rule being subject to stress. This has always been the case, particularly with regard to pregnancy where issues such as abortion and conflicting maternal and fetal interests have been the subject of much historical and ongoing debate.6 Rather, it is that biomedical developments are forcing judges and legislators to recognise, define and then afford rights or protection to a human, an unborn child, a fetus or an embryo in areas as diverse as patents, discrimination, cloning, torts, inheritance, child protection, family law, immigration, contracts, criminal law and discrimination law.7 Space does not allow all of these areas to be considered here. The legal response across these areas is not consistent. This chapter draws three main conclusions from the way in which the law has developed in response to very diverse problems. First, current legislative and judicial authorities illustrate that the legal response is pragmatic, with the recognition of a ‘pre-birth entity’ differing according to the regulatory purpose and policy objectives of the particular legal area. Second, this legally pragmatic and segregated development may be mapped as a ‘timeline’ of the way the law has recognised the existence of an entity before birth. Rather than affording legal

rights and responsibilities, the law recognises at different times prior to birth when ‘some thing’ exists in law — or when there is ‘not nothing’.8 Finally, this legal approach to pre-birth entities suggests that the question as to when life begins at law depends upon why the law is asking the question, the solution being determined by reference to the area of law in which the question is asked. [page 57]

The impact of biomedical innovation 3.2 The ‘born alive’ rule dominates legal recognition of the rights of a human being. There is a long line of authority which establishes that, for the purposes of the civil law including succession law, the parens patriae jurisdiction (meaning the authority of the state to make decisions for those legally unable to do so, such as children) and the law of torts, the position is as stated by Sir George Baker in Paton v British Pregnancy Advisory Service Trustees:9 The foetus cannot, in English law, in my view, have a right of its own at least until it is born and has a separate existence from its mother. That permeates the whole of the civil law of this country (I except the criminal law, which is now irrelevant) …

This rule is broadly replicated in the criminal law10 and forms the basis of fundamental legal doctrines such as murder and negligence, which incorporate this rule. For example, no homicide may be committed unless a human being is killed; no tort liability is possible unless the interests of a human being are traversed. Until the middle of the 20th century, the ‘born alive’ rule was fairly unassailable. But, a plethora of legal responses have been necessitated by recent biomedical and other technological developments. In light of these developments, the ‘born alive’ rule has been recognised as insufficient to inform legal developments. Indeed, as the following discussion illustrates,

there has been an escalation in legislation being enacted and interpreted as applicable or not to the unborn. There has also been an increase in case law which, while not particularly authoritative, is nonetheless notable in dealing with the difficult, complex and novel issues that arise at the forefront of legal development. We shall look at various areas of the law where the issue of the recognition of the unborn has been addressed.

The law of torts Fetal injury 3.3 At common law an unborn child has no ability to commence an action in tort (assuming proceedings would be brought by a parent or other guardian in a representative capacity) because of the operation of the ‘born alive’ rule. But, if injured in utero and subsequently born suffering damage as a result of that injury, then upon birth the child attains the right to sue in tort in respect of the in utero injury. The significance of the position of the unborn child in tort is that, as a matter of law, a ‘potential’ duty of care (in the tort of negligence) can be owed to a child in utero (or even a child yet to be conceived), that duty can be breached while the child is in [page 58] utero (or even before conception), and damage can be occasioned while the child is in utero. But it is not until the child is born, suffering damage, that there is an actionable wrong. The duty of care ‘crystallises’ upon the birth of the injured child. Clearly, the law recognises the rights of the unborn not to be injured, but it postpones the completion of the cause of action and the

right to recover until after birth. The decision of the Full Court of the Victorian Supreme Court in Watt v Rama11 has long been accepted as a correct statement of Australian law on the issue of the recognition of the unborn in the tort of negligence.12 In that case, the plaintiff was born suffering brain damage and epilepsy as a result of a motor accident in which the plaintiff’s mother, while pregnant with the plaintiff, was rendered quadriplegic. The collision was caused by the negligence of the defendant. Surprisingly, in 1972 there was no English or Australian authority directly on whether a child ‘born with injuries caused by the pre-natal neglect of the defendant has a cause of action in negligence against him in respect of such injuries’.13 The court considered the requirements for a duty of care in the tort of negligence, in particular the requirement of reasonable foreseeability of the plaintiff, and held that pregnant women in cars are reasonably foreseeable, as is the possibility of injury, on birth, to their unborn children. The court pointed out that the cause of action in negligence is not complete without damage to the plaintiff, so that in the case of a child in utero, the tort is complete only at birth, when the child is born suffering damage caused by the defendant’s negligence. It was held that: where the injury does not occur contemporaneously with the act or neglect, the relationship will not necessarily crystallize so as to create a duty at the time of the act or neglect. Where the injury to the plaintiff occurs only subsequently to the time of the act or neglect in circumstances where the plaintiff is not defined at that time, as for example where he is only one of a class, the relationship and the duty to arise therefrom may be said to be contingent or potential but capable of ripening into a relationship imposing a duty when the plaintiff becomes defined.14

So, using the language of the court in Watt v Rama, the plaintiff in these cases becomes ‘defined’ at birth and the relationship between plaintiff and defendant, creating the duty of care, ‘ripens’ at that moment. The court did not see the issue as one requiring any departure from the ‘born alive’ rule or the use of any fiction to ‘deem’ the plaintiff to have been ‘alive’ at the time of the defendant’s negligent act. Rather, the court looked to the elements of the tort of negligence, taking the view that the last element, the damage, did not

eventuate until the plaintiff’s birth in a damaged state. It is significant, however, that the court held that an unborn child who might subsequently be born suffering damage, was reasonably foreseeable as a member of a class of persons who might be injured by the defendant’s negligence. [page 59] Watt v Rama was applied by the New South Wales Court of Appeal in Lynch v Lynch15 to impose a duty of care on a mother to her own child who was born injured as a result of a car crash caused by the mother’s negligent driving. The court was keen to confine the mother’s duty to her unborn child to the situation of negligent driving so as not to make a mother liable to her child for other acts during pregnancy.16 3.4 In X v Pal,17 the New South Wales Court of Appeal decided that a child who was not conceived at the date of the defendant’s negligent act could acquire rights on birth to sue in the tort of negligence. In this case, the plaintiff was born with syphilis having been infected by her mother who was unaware that she carried the disease. The mother had previously been pregnant and her treating doctors at that time had failed to screen her for the disease during that earlier pregnancy. Had they done so, they would have discovered the mother’s illness and treated her for it, thereby avoiding the risk to the plaintiff before the plaintiff’s conception. Clarke JA held that ‘a person may be subjected to a duty of care to a child who was neither born nor conceived at the time of his careless acts or omissions’.18 His Honour found this proposition ‘entirely consistent with what was said by the High Court … in Chapman v Hearse’19 regarding the requirement of reasonable foreseeability of the plaintiff: If one postulates the duty in terms of the class or category of persons to whom it is owed, as I believe one should, and accepts that there may be within that class persons who are not born when the careless conduct occurs there is no need to resort to artificial concepts, such as deeming, or to be unduly troubled about the child’s lack of legal personality at the time of that conduct.

… The fact that damage was suffered many years after the breach of duty has never been regarded as an impediment to the cause of action. Nor should, in my view, the fact that a particular plaintiff acquired legal personality (and suffered damage) years after the breach.20

The same approach was adopted in Kosky v Trustees of the Sisters of Charity,21 where Tadgell J, in an application for an extension of the time in which to bring proceedings, took the view that a child was owed a duty of care by a hospital in respect of a blood transfusion given to the mother eight years before the child’s birth. Clearly, the law of tort recognises the rights of the unborn not to be injured and provides a remedy, after birth, for harm occurring before birth caused by negligent acts before birth or even before conception. Tort law does this not by recognising the existence of a ‘legal person’ before birth, but by recognising that a child in utero can be [page 60] the victim of a negligent act and that a child in utero, or even before conception, is one of a class of reasonably foreseeable persons.

Wrongful life claims 3.5 A wrongful life claim is one made by a child after birth, where it is claimed that, but for the negligence of the defendant, the child would not have been born at all. These cases typically arise where the parents’ medical advisors have been negligent in failing to diagnose a pregnancy, or in performing a sterilisation procedure, or in failing to diagnose fetal abnormality, so that a child is born who would not otherwise have been born. The effect of the negligence of the parents’ medical advisors is to ‘cause’ the birth in the sense that, had the parents been properly advised or treated, they would have had the opportunity to avoid or terminate the pregnancy.

There is no question in these circumstances that the parents have a claim at common law in the tort of negligence against their medical advisors,22 who owe them the ordinary duty of care that arises in a doctor-patient relationship.23 But the very difficult question for the courts has been whether a child born as a result of this type of negligence has a tortious remedy against the parents’ negligent medical advisors. In 2006, the High Court held in Harriton v Stephens24 and Waller v James; Waller v Hoolahan25 that a claim by the child in this type of case is not maintainable. The plaintiffs in these cases were born suffering profound disabilities. Their disabilities were not caused by any act of the defendants, but by a rubella virus infection in utero in the Harriton case and by a genetically transmitted disorder in the Waller cases. The plaintiffs claimed that the defendants owed them a duty of care to avoid the damage of being born (into a life of disability) by properly advising their parents. The argument in Harriton was that, had the rubella infection been diagnosed and the plaintiff’s mother afforded the opportunity to terminate the pregnancy, she would have done so, thereby avoiding the plaintiff’s birth and life. In the Waller cases, where the plaintiff was conceived by the IVF technique, it was argued that, had the medical experts advised the plaintiff’s parents about the risks of the genetic disorder, the parents would not have proceeded with IVF treatment and the plaintiff would not have been conceived or born. The High Court (Kirby J dissenting) in each case refused to allow the plaintiffs’ claims because ‘the nature of the damage alleged is not such as to be legally cognisable in the sense required to found a duty of care’.26 The majority of the High Court (see Crennan J’s ‘lead’ judgment) held that being born did not constitute damage known to the law: [page 61] In the Court of Appeal, Spigelman CJ was of the opinion that it is not ‘possible to avoid or obfuscate the fact that an action by a disabled child, as distinct from an action by the parents,

involves an assertion by the child that it would be preferable if she or he had not been born. This raises the difficult question of whether the common law could or should recognise a right of a foetus to be aborted, or an interest of a foetus in its own termination, which is distinct from the recognised right of a foetus not to be physically injured whilst en ventre sa mère, whether by a positive act or by an omission. (original emphasis)27

Crennan J continued: Because damage constitutes the gist of an action in negligence, a plaintiff needs to prove actual damage or loss and a court must be able to apprehend and evaluate the damage, that is the loss, deprivation or detriment caused by the alleged breach of duty. Inherent in that principle is the requirement that a plaintiff is left worse off as a result of the negligence complained about, which can be established by the comparison of a plaintiff’s damage or loss caused by the negligent conduct, with the plaintiff’s circumstances absent the negligent conduct … A comparison between a life with disabilities and non-existence, for the purposes of proving actual damage and having a trier of fact apprehend the nature of the damage caused, is impossible.28

Other factors that the court held to be influential in the decision to refuse to find a duty of care were the impossibility of assessing damages on the compensatory principle; the need to recognise that all life is valuable, including life with disability; and the need to avoid a decision that would result in inconsistency or incompatibility with other areas of the law — in particular, statutes prohibiting differential treatment of the disabled.

Succession and equity and trusts 3.6 Equity and trust law has always acknowledged the existence of unborn children. Many of the cases discussed in other categories in this chapter concern equitable remedies. As Gillard J stated in Yunghanns v Candoora No 19 Pty Ltd29 (discussed below at 3.9): no civilised legal system which is fair and just could permit the destruction or interference with the rights of the unborn to acquire an interest in property upon birth and survival, prior to the child becoming a legal person to protect its own rights.

His Honour continued: ‘the courts of equity have over many years responded to the need and often interfere to protect contingent rights before birth’.30 3.7 Traditionally, the ‘born alive’ rule has not prevented a child who was in utero at the death of a testator, or at the date of commencement of a trust,

from taking a benefit to which he or she would have been entitled if living at the relevant date. Such a child, when born, would be entitled to a share in the trust or estate. The courts have for many years been prepared to recognise an ‘exception’ to the traditional common [page 62] law ‘born alive’ rule so as to enable the share of an unborn child in an estate or trust to take effect at birth as if the child had been born at the relevant date. The courts have had no hesitation in making orders to include in the class of beneficiaries entitled under a will or trust, children who were en ventre sa mère31 at the date the testamentary or trust benefit took effect, if they would have been so entitled, if living (ie if already born) at that date. The courts have done so by applying a rule that apparently recognised a form of contingent existence or deemed existence prior to birth. Clearly, the courts have recognised that the child in utero is an entity deserving of protection and the issue of the state of development of the fetus has not arisen until relatively recently. In 1937, Sir John Salmond wrote: Though the dead possess no legal personality, it is otherwise with the unborn. There is nothing in law to prevent a man from owning property before he is born. His ownership is necessarily contingent, indeed, for he may never be born at all; but it is nonetheless a real and present ownership. A man may settle property upon his wife and the children to be born of her. … The rights of an unborn person, whether proprietary or personal, are all contingent on his birth as a living human being. The legal personality attributed to him by way of anticipation falls away ab initio if he never takes his place among the living … A posthumous child may inherit; but if he dies in the womb, or is stillborn, his inheritance fails to take effect, and no one can claim through him, though it would be otherwise if he lived an hour after his birth.32

3.8 There is very old authority acknowledging that the law employs a fiction when recognising the property rights of the unborn.33 In the 20th century,34 the House of Lords considered the issue in Villar v Gilbey35 and

again in Elliott v Joicey,36 and confirmed a rule that unborn children could be included in the class of children living at the date of their fathers’ deaths, holding that such a rule was justified ‘on the ground that such children came within the motive and reason of the gift and should therefore be included by fiction or indulgence on the ground that it was for their benefit’ (emphasis added).37 3.9 These authorities were approved and applied by Gillard J in the Victorian Supreme Court in Yunghanns v Candoora No 19 Pty Ltd.38 But this case was different from the old authorities in that it involved a proceeding, at a time when the child had [page 63] yet to be born, in respect of an interest that could not exist until the birth of the child. The earlier cases concerned applications on behalf of living (ie born) children who had been en ventre sa mère at the time of a testator’s death or the creation of a trust. The Yunghanns case concerned an application for an interlocutory injunction to restrain a trustee from acting so as to exclude an unborn child as a beneficiary. The issue before the court was whether the father of the unborn child had any standing to bring the proceedings (while the child remained unborn) and whether the unborn child had any interest that could be protected before its birth. The court concluded on the authorities that the rights of the unborn child could be protected by the issuing of an injunction and that the child’s father, in a representative capacity, could be a party to an action for that purpose: The law has from very early times treated the foetus as a child in some circumstances. This has been in the area of protecting the unborn child’s right to property. The foetus is treated by a legal fiction as having already been born. (emphasis added)39

It was argued in Yunghanns that the action must fail because the child was

not a legal person at the time of the proceedings and had no rights that could be enforced prior to birth. In support of this argument, two authorities were relied upon, one English, one Australian. Both were cases dealing with an application by a father for an order restraining the mother of a fetus from having an abortion. In the English case of Paton v British Pregnancy Advisory Service Trustees40 the court held that the application must fail because a fetus could have no rights whatsoever until born and having an existence separate from its mother: the ‘born alive’ rule.41 In the Australian case of Attorney-General (Qld) (Ex Rel Kerr) v T,42 Gibbs CJ in the High Court held to the same effect: a foetus has no right of its own until it is born and has a separate existence from its mother. We are here, of course, not concerned with the questions that arise where damage to a foetus results in the birth of a damaged child, or with those cases in which a will is given a fictional construction, to give effect to the reasons and motives of the dispositions of the testator.

The court in Yunghanns distinguished both authorities. The basis of the distinction is that, in a succession case, the orders that the court would make are to protect a right which an unborn child will attain at birth,43 whereas in the ‘abortion’ cases, the courts were considering a situation where the fetus could have no rights which could be enforced because there was never any intention or contemplation that the fetus would ever be born. The distinction seems to rest entirely on the issue of whether there is any possibility or likelihood that a child will be born: essentially whether the ‘contingent existence’ can ever become reality. Indeed, in Paton44 Sir George Baker stated: [page 64] the fetus has no right of action, no right at all, until birth. The succession cases have been mentioned. There is no difference. From conception the child may have succession rights by what has been called ‘fictional construction’; but the child must be subsequently born alive.

3.10 A case that adds an entirely new dimension to the traditional ‘succession’ cases involving the question of the rights of children en ventre sa

mère is the Tasmanian Supreme Court decision Re Estate of the Late K.45 In that case, the Public Trustee as administrator of an intestate estate sought a declaratory order as to whether two frozen embryos (zygotes in strict scientific terms), produced (prior to death) using the sperm of the deceased and ova of his widow, were ‘issue’ pursuant to the relevant Tasmanian legislation dealing with distribution on intestacy. The deceased and his widow already had one child born by the IVF technique and they had intended to have the two frozen embryos implanted with a view to a further pregnancy and birth, but the husband died prematurely. Three questions were put to the court: were the embryos ‘issue’ of the deceased for the purpose of the relevant Tasmanian succession legislation; were they living at the date of death; and would they become children of the deceased upon being born alive? Having reviewed the relevant law, Slicer J concluded that the law had long recognised such a child as ‘born’ for the purpose of succession. His Honour made the observation: The recognition of the rights of an unborn child is an artificial construct or fiction based on the proposition that a child, en ventre sa mère, is deemed to be born at the time of an occurrence so far as it is necessary for the benefit of that child.46

The court held that the embryos were not ‘issue’ of the deceased at the time of their father’s death, and nor were they ‘alive’ at the time of their father’s death. This was on the basis that ‘there was no human in existence’ at the time of the death of the deceased. This conclusion was based on the traditional ‘born alive’ rule. But the court answered the final question in the affirmative. For the purposes of succession, the embryos would become children of the deceased upon their being born alive. Slicer J asked: As a matter of policy, should the law distinguish between a child, en ventre sa mère, and his or her sibling who was at the same time a frozen embryo? … Should a right by way of the application of a legal fiction be denied because medicine and technology have overtaken the circumstances existent in the 19th century when the legal fiction was applied?47

After reviewing the reports of various Law Reform Commissions48 on the issue of the status of posthumously conceived children or children born from

stored embryos, [page 65] Slicer J noted that several legislatures had denied succession rights to such children on pragmatic grounds because of the practical difficulties that would arise for executors and administrators of deceased estates. His Honour concluded, however, that such practical difficulties should not fetter his court and held: If a child en ventre sa mère is not regarded as living (in terms of law) but has a contingent interest dependent on birth, then in logic the same status should be afforded an embryo. That would be so whether or not two cells, four cells, or a developed foetus was existent. In this case fertilization has occurred and, although in stasis, possesses a potential for live birth. If such be the case then it could be said to possess the same contingent rights as a sibling, en ventre sa mère.49

This decision highlights that settled areas of law are able to incorporate biomedical developments such as the freezing of embryos and that the recognition of contingent rights is not necessarily reliant upon the growth or development of a fetus.

The parens patriae decisions: Can an unborn child be made a ward of the court? 3.11 Traditionally the courts have applied the ‘born alive’ rule to refuse ‘protection’ or ‘guardianship’ orders in respect of unborn children. At common law, it seems that the parens patriae jurisdiction of the courts cannot be relied upon to make an unborn child a ‘ward of the court’. The position seems certain in Australia, having regard to the decision of Gibbs CJ in the High Court in Attorney-General (Qld) (Ex Rel Kerr) v T,50 discussed at 3.9, where his Honour held that an unborn child is not a person whose existence can be protected by the court in its role as parens patriae. His Honour cited and approved the judgment of Sir George Baker P in Paton v

British Pregnancy Advisory Service Trustees,51 where the ‘born alive’ rule was relied upon. Similarly, the English Court of Appeal in Re F (in utero)52 held that it had no jurisdiction to make a child in utero a ward of the court. That case concerned an application in respect of the unborn child of a mentally ill woman who led a nomadic existence and who, the relevant social worker feared, would not attend hospital or obtain other assistance for the birth of her child. While the decision was unanimous, the justices in Re F arrived at their conclusions by slightly different considerations. May LJ relied on the traditional ‘born alive’ rule. His Lordship also considered that a wardship order would inevitably create a conflict between the legal rights of the mother and the inchoate rights of the unborn child. Balcombe LJ took a similar view, relying on the notion that an unborn child has no existence separate from its mother. Staughton LJ held that, because the life of the fetus could not be regarded in isolation from that of the pregnant mother and because an unborn child could not physically be cared for by any person until it was born, the court should not assume jurisdiction. His [page 66] Lordship further held that it was for parliament, not the courts, to create a jurisdiction in this type of case. In Winnipeg Child & Family Services (Northwest Area) v G,53 a majority of the Full Canadian Supreme Court took the House of Lords’ view that an unborn child was not a legal person and could not, therefore, be protected under the parens patriae jurisdiction of the court. The dissenting judgment, however, observed that the ‘born alive’ rule ‘is a common law evidentiary presumption rooted in rudimentary medical knowledge that has long since been overtaken by modern science’.54 3.12

The High Court of New Zealand has taken a view of the issue based

on different considerations. In Re an Unborn Child,55 Heath J held that a guardianship order should be made in respect of a child then in utero with the order to take effect immediately. The mother of the child was appointed ‘agent of the court’ for the purposes of the guardianship. National television in New Zealand had broadcast a piece about a pornographic film to be made featuring the birth of a child whose mother was also to ‘star’ in the film. The chief social worker for the Department of Child, Youth and Family Services had grave concerns about the welfare of the child and applied to the court for orders placing the unborn child under the guardianship of the court, and prohibiting the filming and publication of the birth of the child for any pornographic publication. At the time of the decision, the issue of guardianship and wardship jurisdiction was governed in New Zealand by ss 10A-10E of the Guardianship Act 1968 (now covered by the Care of Children Act 2004 (NZ)). Heath J held that an unborn child was a ‘child’ within the legislation (defined as a ‘person under the age of 20 years’). In concluding that the definition of child in the Act included an unborn child, Heath J considered several authorities, including the English Court of Appeal decision in Re F (in utero). His Honour considered that that case was not applicable in New Zealand because there were significant differences in the New Zealand position which required a different approach and which required Re F (in utero) to be distinguished. These were: 1. New Zealand had adopted and ratified the United Nations Convention on the Rights of the Child, which ‘expressly recognizes the creation of rights in a child at a time before birth’; 2. in the present case, the court would be making an order restraining the child’s mother from doing something, rather than a mandatory order requiring the mother to act against her will; and 3. other New Zealand legislation protects the interests of unborn children (ss 182 and 187 of the Crimes Act 1961 (NZ) and the Contraception, Sterilisation and Abortion Act 1977 (NZ)).56

[page 67] Heath J concluded: having regard to the international obligations which have been assumed by New Zealand under the convention, and the other provisions of New Zealand law which support the interests of unborn children, I hold that the term ‘child’ … can include an unborn child.57

In support of this conclusion, his Honour referred to the House of Lords’ considerations in Attorney-General’s Reference (No. 3 of1994),58 where their Lordships addressed the issue of whether a fetus has a human personality distinct from its mother. Lord Mustill stated that ‘the mother and the foetus [are] two distinct organisms’59 and Lord Hope of Craigend said ‘the embryo is in reality a separate organism from its mother from the moment of its conception’.60 Further, Heath J points out, the approach of the House of Lords had already been adopted by the Full Court of the New Zealand High Court in an appeal from the Complaints Review Tribunal under the Health and Disability Commissioner Act 1994 (NZ).61 3.13 The court reached its conclusion in Re an Unborn Child on the basis that the best interests of the child were the paramount consideration, that there was a likely risk of emotional harm to the child arising out of sexual exploitation of the child’s image and that, therefore, the guardianship order should be made. The New Zealand Family Court had considered the same issue previously in Re Baby P (an unborn child),62 which concerned an application for a care and protection order (under s 14 of the Children, Young Persons and Their Families Act 1989 (NZ)) in respect of an unborn child whose birth was imminent. In that case, Inglis J reached the surprising (given the then state of the authorities) conclusion that the late-term unborn child was a young human being … Medically and physiologically there is only a minor, if not imperceptible, difference between his present stage of development and the stage he will be immediately after his birth … Baby P has all the characteristics of independent human personality.63

Heath J in Re an Unborn Child declined to follow the reasoning in the

Baby P case, noting that the decision had been criticised on several grounds,64 most significantly that there was a risk of conflict between the mother’s interests and those of the child, where the order would have the effect of mandating the mother’s prenatal conduct. Heath J further held that the decision in Baby P was flawed: first, because the judge saw the issue of whether to exercise power in respect of an unborn child as discretionary rather than jurisdictional; and, second, because the view that an unborn child is sufficiently developed to be a ‘young human being’ was apparently based on the judge’s own personal view of what constitutes sufficient development. [page 68] 3.14 The New Zealand decision in Re an Unborn Child is of interest to Australian lawyers because the main considerations on which the decision was based are also applicable in Australia. Australia is a signatory to the United Nations Convention on the Rights of the Child,65 and there is legislation in various Australian states protecting the rights of unborn children.66 The unusual facts of Re an Unborn Child involved considerations very different from those in the ‘abortion’ case of Attorney-General (Qld) (Ex Rel Kerr) v T,67 which is the leading Australian authority on the point. It may be that there is scope to argue in Australia that there are circumstances where it would be appropriate for the courts to consider making a guardianship order in respect of an unborn child, notwithstanding the traditional ‘born alive’ rule.

Child protection laws 3.15 Three Australian jurisdictions provide for some protection for the unborn, allowing for intervention by government authorities to ‘protect’ the welfare of an unborn child.68

In Queensland, an amendment to the Child Protection Act 1999, s 21A, allows for civil intervention by the authorities ‘if, before the birth of a child, the chief executive reasonably suspects the child may be in need of protection after he or she is born’. The provision has been described as giving much more extensive protection to unborn children than any other Australian provision. The legislation appears to cover unborn children from the time pregnancy has been detected in the pregnant woman, and covers situations where grievous bodily harm is inflicted on, or a serious disease is transmitted to, the unborn child.69

In Victoria, s 29 of the Children Youth and Families Act 2005 allows reports to be made to authorities before the birth of a child, if the person has a significant concern for the well-being of the child after his or her birth. Bromfield and Higgins have observed that the Children and Young Persons (Care and Protection) Act 1998 (NSW) also provides for reports concerning unborn children. The stated intention is to provide early intervention to reduce the risks to the baby at the time of birth.70 [page 69]

Criminal law 3.16 In criminal law there is no homicide unless a human being is killed. If an unborn child is not a human being, there can be no homicide. Indeed, in Attorney-General (Qld) (Ex Rel Kerr) v T,71 discussed at 3.9, the High Court refused to intervene to prevent an abortion. The common law recognises that the fetus will become a child upon birth, while at the same time denying the fetus the legal status of a human until it is born.72 Criminal statutory provisions may however extend liability to injuries that occur in utero, as long as a child is born alive. For example, s 52A of the Crimes Act 1900 (NSW) attributes legal responsibility in a criminal matter where there is a causal connection between a vehicle and an impact, and the death of a person. This section has been held to apply where the vehicular impact causes the

premature birth of the fetus who, ‘after a passage of time alive, dies because of an inability to withstand the rigours of his or her environment’.73 Similarly to the common law of tort, the individual driving the vehicle has thus caused the death of a person, even though that person was not alive at the time of the impact. The key to the approach of the criminal law to a fetus is its regulation of abortion. There are three broad categories of abortion laws in Australia that make it a crime to seek, perform or otherwise be involved in an abortion.74 These are laws that create the crime of unlawful abortion, laws that create the crime of child destruction, and the law of homicide. The demarcation between these crimes rests in the progressive stages of the pregnancy. In practice, abortion is available in most Australian jurisdictions up to 20 weeks of pregnancy.75

Laws that create the crime of unlawful abortion 3.17 Very generally,76 the laws that create the crime of unlawful abortion make it an offence to procure the death of the fetus unless there is an element of necessity that may affect the life of the mother or the fetus. The offences relate to intended self-abortion, intended procurement of a miscarriage of another and the knowing supply of instruments, drugs or other noxious substances designed to assist in the first two offences.77 The statutory operation of each of these crimes differs from one [page 70] jurisdiction to another. For example, the ‘Menhennitt ruling’ from the Victorian Supreme Court case of R v Davidson78 in 1969 provided that abortion could be lawful if the accused held an honest belief on reasonable grounds that the abortion was ‘necessary’ and ‘proportionate’. This approach

was broadly adopted in New South Wales — the ‘Levine ruling’ from the case of R v Wald79 in the District Court in 1971 stated that an abortion would be lawful if there was any ‘economic, social or medical ground or reason’ upon which a doctor could have a reasonable and honest belief that it was necessary to perform the abortion to avoid a ‘serious danger to the pregnant woman’s life or to her physical or mental health’. Since being reinterpreted by Kirby J in CES v Superclinics (Australia) Pty Ltd,’80 the New South Wales Levine ruling is generally viewed as a more liberal rule than that of Menhennitt. Following the statutory changes to Victorian abortion legislation in 2008,81 the Menhennitt ruling is now largely of historical relevance only. In the Australian Capital Territory the offence of abortion has been abolished.82 Abortion is the subject of criminal law in all other Australian states and territories; however, in every jurisdiction in Australia, medical abortion is justifiable in a broad set of circumstances. The more liberal jurisdictions83 are the Northern Territory, South Australia, Tasmania, Victoria and Western Australia, where it is lawful for an abortion procedure to be performed by a medical practitioner.84 The grounds on which a lawful termination may be performed differ, as do the limitations on duration of pregnancy. The South Australian Criminal Law Consolidation Act 1935, for example, provides that an abortion cannot be performed after 28 weeks, the exception being where the abortion is performed in good faith and solely to preserve the life of the pregnant woman. Prior to this outer time limit, an abortion can be carried out when the ‘maternal health ground’ or the ‘foetal disability ground’ is satisfied. The ‘maternal health ground’ refers to the physical or mental health of the pregnant woman being at risk, and the ‘foetal disability ground’ is satisfied if there is a substantial risk that the child will be seriously physically or mentally handicapped. [page 71]

Laws that create the crime of child destruction 3.18 Abortion laws reflect a timeline approach to the fetus as a potential human being. This replicates the concept of the pre-birth continuum. Through the child-destruction provisions, the notion of ‘capable of being born alive’ is added to the traditional ‘born alive’ rule. The crime of child destruction applies only to abortions performed late in pregnancy. The crime covers situations where neither the offence of abortion nor the offence of murder or manslaughter is appropriate. As such, it is meant to cover the period where the fetus is viable — capable of being born alive — but before it is born and attains the status of a human being.85 The definition of an unborn child differs between jurisdictions. In South Australia it is unlawful to act to intend to destroy a ‘child capable of being born alive’ before it has an existence independent of its mother. The exception is where that act is done in good faith to preserve the mother’s life. If the pregnancy is 28 weeks or later, that is prima facie proof that a woman is carrying a ‘child capable of being born alive’. Thus 28 weeks is the prima facie legal test of viability (while United Kingdom cases have indicated that a child is capable of being born alive at 26 weeks).86 The remaining statutes in Australia are less exact. Most refer to a fetus being capable of being born alive. For example, s 165 of the Tasmanian Criminal Code does not strictly describe a child-destruction offence and is not clearly applicable as such. But it prohibits causing death to a ‘child who has not become a human being’ in such a manner that the person causing death would have been guilty of murder if such a child had been born alive, unless the death is caused by an attempt in good faith to preserve the mother’s life. In the Australian Capital Territory, s 42 of the Crimes Act 1900 makes child destruction an offence: A person who unlawfully and, either intentionally or recklessly, by any act or omission occurring in relation to a childbirth and before the child is born alive — (a) prevents the child from being born alive; or (b) contributes to the child’s death; is guilty of an offence punishable, on conviction, by imprisonment for 15 years.

3.19 In Queensland and New South Wales, new crimes have been introduced to deal with attacks on pregnant women. Section 313 of Queensland’s Criminal Code is titled [page 72] ‘Killing unborn child’.87 The Code makes it a crime to unlawfully assault a pregnant woman and destroy the life of a child capable of being born alive: (1) Any person who, when a female is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, the person would be deemed to have unlawfully killed the child, is guilty of a crime, and is liable to imprisonment for life.

Subsection (2) was subsequently added: (2) Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime. Maximum penalty — imprisonment for life.

The purpose of s 313(2) is to make an ‘unborn child’ one that dates from conception. In New South Wales, the 2003 case of R v King88 led to similar reforms. King attacked Ms Flick, who was pregnant with his child. He assaulted her, including kicking her in the stomach and stomping on her stomach about half a dozen times. The fetus was delivered stillborn three days later. The pregnancy was between 23 and 24 weeks. King was charged with the offences of intentional infliction of grievous bodily harm to Ms Flick and procuring a miscarriage.89 In relation to the charge of grievous bodily harm, the Crown relied upon the death of the fetus and the abruption of the placenta as constituting grievous bodily harm to Ms Flick. The issue was whether the death of a fetus is capable of constituting grievous bodily harm to a pregnant mother. The trial judge referred to the decision of the House of Lords in Attorney-General’s Reference (No. 3 of 1994)90 as authority for the proposition that a fetus was a ‘unique organism’ and as having overruled earlier authority

that a fetus was an integral and inseparable part of the mother. On appeal, the court comprising Spigelman CJ, Dunford and Adams JJ held that the fetus was part of the body of the woman. The Crimes Act 1900 (NSW) was subsequently amended91 and individuals will now be punished for the destruction of a fetus. The legislation makes no attempt to define the term ‘fetus’ and does not refer to the destruction of a fetus as murder. Indeed, s 20 of the Crimes Act 1900 (NSW) explicitly states that when a person is on trial for the ‘murder of a child, such child shall be held to have been born alive if it has [page 73] breathed, and has been wholly born into the world whether it has had an independent circulation or not’. The criminal law differentiates categories of crime according to the development of the fetus. In a time-lineal fashion, criminal law creates separate categories of crime for a viable as opposed to a ‘pre-viable’ fetus. Limits on late-term abortions and crimes of child destruction reflect recognition within this area of law that the legal recognition of a fetus alters depending upon the type of crime under consideration.

The law of homicide 3.20 Every Australian jurisdiction prohibits unlawful homicide. Homicide describes a variety of criminal offences that cover manslaughter through to the most serious crime of murder. In essence, in every Australian jurisdiction a fetus cannot be the victim of any kind of homicide. This is the case irrespective of the stage of pregnancy. As Cica says: A foetus can only be the victim of murder or manslaughter if it is born in a living state. For these purposes, a child is born in a living state when it — but not necessarily the umbilical cord, placental tissue or afterbirth — is completely extruded from the pregnant woman’s body. Except in

the Australian Capital Territory, and in New South Wales for murder prosecutions, a child need not have breathed to be considered born alive. Nor is it necessary that the child be viable in the sense that it has the capacity to stay alive. A functioning heart is probably sufficient. Birth includes the surgical removal of a child from its mother, as in the case of Caesarean section, as well as vaginal delivery.92

The thrust of the criminal law in relation to abortion has been to clearly demarcate the crimes of murder and manslaughter from the death of a fetus or unborn child. The reason for this rests in the difficulty that, if the legal definition of personhood were extended to include the fetus, then the law would recognise mother and fetus as two distinct legal persons. This leads inevitably to a conflict of rights between the mother and fetus and raises concerns about the ‘policing of pregnancy’ to constrain mothers from acting in any way that would harm their fetuses.93

Patent law 3.21 The purpose of issuing patents is to encourage innovation, a patent being the primary commercial vehicle for the grant and protection of an intellectual property right by the state to the inventor of a new, inventive and useful product or process.94 [page 74] One point of difference between the Australian regulation of patents95 and that of the United States and the United Kingdom is that the Commonwealth of Australia excludes only one subject matter from patentability. In 2004, s 18(2) of the Patents Act 1990 (Cth) — which states that ‘[h]uman beings, and the biological processes for their generation, are not patentable inventions’ — was first applied:96 Re Fertilitescentrum AB and Luminis Pty Ltd97 and Re Hwang.98 In both cases, the patent applications were refused on the basis that the applicants’ claims related to an attempt to generate a human being.99 The

decisions are also significant because they mark a very early point of recognition by the law of a pre-birth entity.

Re Fertilitescentrum AB and Luminis Pty Ltd 3.22 Fertilitescentrum and Luminis Pty Ltd filed a patent application based on a discovery of a substance called ‘granulocyte-macrophage colonystimulating factor’ (GM-CSF). Pre-blastocyst human embryos could be grown in a medium containing GM-CSF. The basic concept of the invention is that the chemical brings advantages in better simulating the natural environment, and reducing apoptosis of cells in the blastocyst, resulting in greater success in implantation, and babies of greater body mass and having fewer complications compared to IVF babies born without the benefit of the method. The substance is present in the natural environment of the fallopian tube and the invention involves ensuring its presence in an IVF environment. As filed, the application included claims to a culture medium, a method of growing pre-blastocyst human embryos, and an IVF program. During examination, the examiner objected to the claims to the method of growing and the IVF program as being contrary to the Patents Act 1990 (Cth), in particular to s 18(2). At the hearing, the applicants argued that a human being was generated at fertilisation, and since the claimed method was applied at a later stage, it could not be deemed to be a process for [page 75] generating a human being, which was what s 18(2) prohibited. Instead, the applicant argued, it was a method of medical treatment100 of a human being. At first blush, s 18(2) looks straightforward. However, it states that human beings are not patentable inventions without supplying any definition of what constitutes a ‘human being’. Indeed, as the Deputy Commissioner of Patents noted, ‘[r]eproductive technology exposes a range of fundamental issues

concerning the nature of human life vis-à-vis human beings — issues that are essentially ethical or moral in nature, with no clear scientific answer’.101 The question posed in Fertilitescentrum highlights the difficulty in drawing a clear line between those inventions within the exclusion provisions and those outside it — when is a human a ‘human being’ for the purposes of s 18(2) of the Patents Act? The failure to define ‘human being’ provided the Deputy Commissioner with an opportunity to reflect upon and determine what a ‘human being’ is. In this case, the method in question was excluded from patentability as it was found to be a step along the path of generating a human being and, therefore, covered by the exclusion in s 18(2). To arrive at this outcome, the Deputy Commissioner examined the practical application,102 the history103 and the interpretation of s 18(2). This subsection has two components: human beings and the biological processes for their generation.104 The Deputy Commissioner considered the following approaches to interpreting s 18(2): 1. To ask the question: ‘at what point in the reproductive process does a human being come into existence?’105 The Deputy Commissioner noted the fundamental problem with this question is the ‘absence of any legislative or agreed societal definition of what constitutes a human being’.106 2. To focus upon the ‘wrong’ that parliament is addressing (using statutory interpretation techniques).107 The Deputy Commissioner noted this approach also lacks merit given ‘that s 18(2) owes its existence more to political process than to detailed policy deliberation’,108 and that it would essentially replicate the first approach of determining what constitutes a human being. 3. To ‘explicitly recognise that there is no agreement about when in the reproductive process, a human being comes into existence’.109 [page 76]

The third approach, preferred and applied by the Deputy Commissioner,110 is that, for the purposes of s 18(2), the generation of a human being (as distinct from a human life form) occurs over a substantial period of time. The Deputy Commissioner noted that there must be a start and end point, as human life is created at fertilisation and ends with full status being obtained upon birth: The prohibition of ‘human beings’ in my view is a prohibition of patenting of any entity that might reasonably claim the status of a human being. Clearly a person that has been born is covered by this exclusion. But to the extent that there is a process of generation of a human being that lasts from fertilisation to birth, I consider that a fertilised ovum and all its subsequent manifestations are covered by this exclusion.111

The Deputy Commissioner pinpointed the starting point of human life, for the purposes of s 18(2), as ‘being when the sperm enters the ovum — for at that time the ovum has all it needs to go on and develop as a human being’.112 Following this case, the prohibition on the patenting of ‘human beings’ extends to the patenting of any entity that might reasonably claim the status of a human being, including a fertilised ovum and all its subsequent manifestations. The parameters of this definition were explored in the next decision.

Re Hwang 3.23 In this decision,113 the patent application (which was refused) concerned a method of producing chimeric embryos by employing interspecies nuclear transplantation technique.114 While still dealing with s 18(2), the Deputy Commissioner noted two differences between this case and Fertilitescentrum AB and Luminis Pty Ltd: first, that there was no step of fertilisation, and, second, that the embryo was a hybrid involving both human and bovine (cow ovary) DNA. The Deputy Commissioner returned to the starting point of what is a human being, developed in Fertilitescentrum, and refined when fertilisation occurs and what constitutes human life for the purposes of s 18(2). He

defined ‘fertilisation’ more broadly to capture the claim made in this application: In natural reproductive processes, the activation of an ovum arises as a direct result of the fertilisation process. However it is clear that fertilisation by a sperm is not the only way in which an ovum can be activated. In my view, an ovum that has been artificially activated is in principle no different to an ovum that has been fertilised by natural means (noting of course that the DNA content of the ovum will be different.) Accordingly the fact that the claimed method uses postactivation of the ovum does not remove the process from the ambit of s 18(2).115

[page 77] This extension of the creation of a human being from natural means to include artificially activated processes is significant. At a practical level, as patent law aims to encourage innovation, this decision may limit the new forms of processes upon which researchers are prepared to embark in Australia, with respect to assisted conception technologies. At a theoretical or even theological level, it indicates that the notion of ‘natural’ procreation is not necessary for the creation of a legal human being for the purposes of the Patents Act 1990 (Cth). 3.24 A further difference116 between this case and Fertilitescentrum is the presence of non-human DNA. The Deputy Commissioner found that because the nuclear DNA was entirely human — and nuclear DNA governs the primary physical characteristics of mammals — the embryo was human, notwithstanding the presence of bovine mitochondrial DNA.117 Therefore, the process fell within the exclusion in s 18(2). The distinction drawn was between the human nuclear DNA, which would govern the characteristics of this embryo, and the mitochondrial DNA, which would not influence the genetic makeup of the resulting being.118 Due to its generality, this finding may be subject to refinement in subsequent cases. A growing body of research indicates that the extent of the contribution of mitochondria in the creation of the human genetic process is unclear. Indeed, this research challenges the assumption that mitochondrial DNA will not influence the genetic makeup of

the resulting human being. For example, six genetic disorders have been traced to mitochondrial DNA119 indicating that, while it is the only nonnuclear constituent of the cell, the fact that it has its own DNA will impact upon the creation of a human being. 3.25 These two cases provide a legal position,120 at least in relation to patent law, on the definition of a human being. As biotechnology, especially biomedical biotechnology, is becoming the new economic force in the knowledge economy,121 it is not surprising that in Australia the threshold issue as to defining the exact moment that a human life begins has been initially examined and observations made by the Patents Office for the purposes of the Patents Act 1990 (Cth). The decisions of the Patent Office are, of course, specific to their governing legislation. These decisions create, for the purposes of s 18(2), a legal concept of ‘[h]uman beings, and the biological processes for their generation’. Within this context, the law recognises a human entity at the point at which a legal non-entity ceases to be and an entity is created, but that point differs between the two cases. Fertilitescentrum identifies that the biological process of generating a ‘human being’ begins ‘when the [page 78] sperm enters the ovum — for at that time the ovum has all it needs to go on and develop as a human being’.122 In Hwang, this process took place artificially. The law will, therefore, respond to science and other disciplines and belief systems such as religion and morality within its own normative framework. The area of patent law creates its own legal conceptions of a human being, determining its own reference points for conception and processes for generating human beings. The concept of ‘humanness’ is recognised as a process, which ‘lasts from fertilisation to birth’.123

Cloning 3.26 In the legislative regulation of human cloning we again see law define biology. As there is no singular religious, moral or scientific definition of an embryo, the law creates its own legal requirements.124 In the words of McLachlin J in the Supreme Court of Canada decision in Winnipeg Child & Family Services (Northwest Area) v G,125 ‘the issue is not one of biological status, nor indeed spiritual status, but of legal status’. Indeed the law itself has differed as to the meaning of terms such as ‘fetus’ and ‘embryo’. The common law uses the term ‘fetus’ to describe a child in utero as young as three-andahalf weeks;126 whereas, cloning legislation (which was first introduced in all Australian jurisdictions in 2002–03) — in particular, s 8 of the Prohibition of Human Cloning for Reproduction Act 2002 (Cth) — defines a human embryo as: a discrete entity that has arisen from either: (a) the first mitotic division when fertilization of a human oocyte by a human sperm is complete; or (b) any other process that initiates organized development of a biological entity with a human nuclear genome or altered human nuclear genome that has the potential to develop up to, or beyond, the stage at which the primitive streak appears; and has not yet reached 8 weeks of development since the first mitotic division.

This section thus differs from the common law and uses an eight-week timeframe to transition a human embryo to a fetus. Legal regulation of human cloning now provides a clear definition of when a human embryo becomes a fetus. This is the case as a Federal Government review into cloning, the Lockhart review, considered that ‘developments in Assisted Reproductive [page 79] Technology over the past three decades have made it more important to provide an adequate biological and legal definition of an embryo’.127

Similarly to patent law, the legal regulation of cloning starkly exposes the policy choices the law has to make in coming to terms with the use of human embryos in biomedical innovation. Cloning is an area where science has moved past the point of even needing the law to locate and/or define rights between the pregnant mother and the unborn child.

Conclusion 3.27 The above analysis reveals that a uniform legal approach to defining the fetus is an impossibility. Instead, a ‘silo’ approach, whereby every legal area has separate determinations on the legal recognition of the fetus, is now a reality. This approach, apart from being pragmatic, is arguably the most appropriate. Areas of law such as patent law cannot be equated with an application to the court to restrain an abortion — clearly patent law, tort law and criminal law, as well as the other areas identified in this chapter, will have different policy requirements and serve varying social, economic and moral interests. The fact that the law recognises the fetus at differing stages of development prior to birth frees the policy maker, the judge and the legislator from the difficult definitional question embedded in morality, religion and ethics as to determining when human life begins (unless that is within the parameters of the law in question). This approach accords with the view128 that the law has moved past the traditional case law definitional approach of asking ‘What is the fetus?’ Further, this flexible approach both debunks the myth of the prevalence of the ‘born alive’ rule and challenges generalisations whereby legal ‘trends’ are viewed as ‘attaching ever greater significance to the foetus as it approaches viability’.129 This flexible approach highlights that the law is responsive and driven by policy, and thereby reacts to developments in an ad hoc non-uniform fashion. The following table demonstrates the contrasting points of recognition of the unborn by the diverse areas of Australian law considered in this chapter.

Clearly, the traditional ‘born alive’ rule no longer informs decision-making in many of these very challenging areas. Rather, the legislature and the courts have adopted a 21st-century approach that recognises the reality of biomedical and scientific development. [page 80] Table 3.1: Overview of legal recognition of the unborn Area

Law

First recognition

Inheritance law/succession

Common law/Legislation

Frozen embryo/Unborn

Torts

Common law

Before conception

Criminal

Legislation

In utero (a range)

Contracts

Legislation

Embryo, fetus

Births/Deaths

Legislation

20 weeks (or 400 grams)

Patents

Legislation

Process of creation

Cloning

Legislation