Rose, Alan --- "Seen and Heard" [1998] ALRCRefJl 10; (1998) 72 Australian Law Reform Commission Reform Journal 44

• Reform Issue 72 Autumn 1998

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Reform Issue 72 Autumn 1998

This article appeared on pages 44– 47 of the original journal.

Seen and heard

The release of the report Seen and heard: priority for children in the legal process has prompted renewed community debate about the impact of legal processes on Australia’s young people.

Alan Rose* outlines some of the 286 recommendations of the report, which was the result of a two year inquiry by the Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission (HREOC).

Since the release of the Seen and heard report, a number of organisations and individuals with an interest in children’s issues have indicated a real interest in the recommendations made by the Commissions.

Seen and heard documented extensive evidence received by the Commissions of the problems and failures of legal processes for children. The Commissions found legal processes riddled with inconsistencies; duplications and gaps in services for children; and significant failings in the legal system, departments and agencies responsible for assisting children.

Despite international and professional recognition of children’s rights and their evolving capacities to participate in legal processes affecting them, children are often ignored, marginalised - even mistreated - by the agencies and organisations supposed to assist them. Australia’s children and their families must cope with appalling care and protection systems, discriminatory legal processes and the failure by so many government departments, agencies and children’s services to consult with and listen to them.

The Commissions also remain concerned by the recent shift to more punitive, less effective juvenile justice legislation, such as mandatory sentencing laws in WA and the NT, and NSW legislation providing for preventative apprehension of young people. These laws violate children’s human rights and should be repealed.

Seen and heard concluded that urgent action was needed by Australian governments to overcome significant failures in the treatment of children in the legal system.

Many of those with a particular interest in children’s issues have expressed anxiety that there is no political will to consider and implement the necessary reforms. Children’s advocacy organisations have commented that government departments they have spoken to since the report was tabled in federal parliament on November 19 have expressed a view that it is ‘just all too hard’.

These comments confirm the essential finding of the report that what is needed is a vehicle for engaging stakeholders and policy makers concerned with children’s issues at the highest level. There is also a need for a clear national agenda to be set, to direct the momentum for activity and change.

Government responsibility for matters affecting children is currently divided between State/Territory and federal governments. Services are delivered to children and their families by a variety of government departments and agencies and many children ‘slip through the gaps’.

The Commissions recommended that the Prime Minister convene a national summit of heads of Australian governments as a matter of priority. The summit should discuss national responses to child abuse and neglect; causes of and remedies for juvenile offending; youth suicide; and youth homelessness.

At the conclusion of the summit, a small national taskforce on children and the legal process would be appointed by the heads of government. It would comprise representatives from relevant federal, State and Territory departments and non-government organisations, specialist academics, practitioners, young people and parents.

A summit and national taskforce can provide an opportunity for a strong, focused and effective response on children’s issues. The report’s recommendations should form the agenda for the summit and decisions would be implemented by a special national taskforce on children.

The Office for Children

The Office for Children (OFC) recommen0ded by the Commissions is seen to be most effectively established within the Department of the Prime Minister and the Cabinet, to ensure national ongoing priority is given to coordination of policies and programs for children and their families.

The OFC, as envisaged, would have a number of discrete functions including;

• providing an annual report to parliament on the status of children in Australia;

• monitoring new legislation, programs and initiatives, for compliance with human rights commitments, particularly the Convention on the Rights of the Child (CROC);

• providing leadership and coordination - in consultation with the States and Territories - in preparing and implementing national standards in government service delivery and legal practice, as recommended by the Commissions;

• coordinating the development of models of best practice for dealing with child consumers of government services or programs;

• advising governments of the most effective use of funds for programs for children;

• liaising with federal, State and Territory bodies relevant to children, children’s advocacy and complaints from young people; and

• consulting with relevant community and professional groups and with children and young people to determine the most appropriate strategies for improving conditions for children.

Some funds from existing government programs could be re-allocated to offset a large proportion of the costs of these new initiatives, as work from the existing programs would become the responsibility of the OFC. The Commissions estimate the summit, task force and OFC will cost under $2.5 million for each of the first two years and $3.3 million a year thereafter.

Much of the debate since the release of the report has centred on whether the Commissions should have advocated a Commissioner for Children, instead of an OFC. The recent ALP national conference in Hobart endorsed a resolution which called for any future Labor government to establish a Children’s Commissioner within HREOC. In New South Wales, the state government has issued a Green Paper, calling for community comment on how a State Children’s Commission might operate.

The Commissions considered that the most pressing need, at this stage, is a national body located within government to coordinate policy development and service delivery for children. However, the Commissions agree that an independent body to provide broad based national advocacy for children is needed.

Seen and heard recommended HREOC develop this role, establishing a specialist children’s rights unit to undertake broad, national, systemic advocacy on behalf of children. Each State and Territory should ensure it has appropriate bodies to handle children’s complaints against that State or Territory’s authorities, to provide child advocacy at a policy level and liaise with HREOC and the OFC. Children’s Commissioners in the States are well positioned to undertake this role. As well, a network of community and legal advocates should be developed to advise and assist individual children with legal processes.

Courts & lawyers

Children tend to be invisible in the court system. When they do appear, many of them complained that they were ignored. Children who give evidence concerning abuse are often subjected to repeated pre-trial interviews, hostile and damaging cross-examination at trial and delays in the court hearings they are involved in.

The Commissions heard extensive evidence that court proceedings were exceedingly traumatic for children. One confidential submission to the inquiry came from a mother, whose 14-year-old daughter - the victim of an assault - was cross-examined for five hours:

“... when cross-examining her [the defence counsel] accused her of doing this for gain of money. He told her that he thought she reacted like she did because she was sleeping around. Mind you, at the time of the assault, she was nine years old ... he told her he believed something happened, he then accused her father and said her father had really done it, but she was blaming this man instead ... in two sentences he ruined my daughter ... she came out of court, she was sick, she could not stop vomiting.” (Confidential Public Hearing Submission, Melbourne, 29 May 1996.)

Such cases demonstrate the clear need for national standards to be developed and adopted to reduce the trauma of interviews and examination of child witnesses. Child witnesses must be assisted, supported and adequately prepared for the process of giving evidence.

The Commissions have recommended the entire evidence of a child should be videotaped before trial and presented on video at committal hearings and at trial, whenever the interests of justice so require. The Commissions also recommend the expansion of child witness support programs which provide such children with information about trial processes and practices and a support person to be present with them when giving evidence. All children should be presumed prima facie competent to give sworn evidence and judges should be prohibited from warning or suggesting to a jury that children are an unreliable class of witness.

Appropriate legal advice and representation should be provided to children in need of legal services. This would include the establishment of a legal advice line, specialist children’s legal service units and visiting solicitors’ schemes.

Legal professional bodies throughout Australia should cooperate in drafting comprehensive guidelines to ensure appropriate and effective representation of child clients. The guidelines should distinguish clearly between best interests representation and representation on instruction.

The various examples quoted in the Seen and heard report aptly demonstrate the shortcomings in legal representation for children.

The Commissions were told of a lawyer who telephoned young Aboriginal children about family residence and access. The lawyer had not previously acted for the children and was confident to present such telephone discussions as accurate indications of the children’s wishes regarding their families.

Many children told the Commissions they had never spoken to their separate representative, even though they had written to request an interview. One 14-year-old child, whose parents had been disputing access issues for several years, telephoned the ALRC to see if our staff would speak for her in court, as she had no confidence in a separate representative who consistently refused to meet with her.

In the criminal jurisdiction, the Commissions heard from young people whose lawyers spent little if any time talking with them, refused the young person’s requests to apply for bail and, on occasions, misrepresented their pleas.

These are the problem cases. It is also important to record the dedicated and positive contributions which many committed children’s lawyers make. Few of these lawyers are deriving big financial rewards from their work for children, but their support and advocacy can make a real difference in the lives of many troubled young people.

One pleasing development that has occurred since the release of the report has been the initiative by the National Children and Youth Law Centre to give annual awards for best child’s lawyer for each of the States and nationally. This is an important step in acknowledging the specialist field of practice involved in representing children as well as the singular commitment and skill which many of these advocates bring to children in the legal process.

* Alan Rose AO is the President of the Australian Law Reform Commission.