Why Young People Should be Heard in Law
Michael Antrum is a member of DCI-Australia and Chair of the Children’s Legal Issues Committee of the New South Wales Law Society.
Children and young people are regular participants in Australian law and Australian courts. You will see them mainly in criminal courts, care and protection courts, and
the Family Court. They will appear as defendants, as witnesses, and as victims. The striking difference about the status of children compared to adults in our legal systems is that they are
overwhelmingly there by compulsion or as the subject of proceedings in which the State is a protagonist.
On the whole, children do not make complaints to bodies set up specifically to receive complaints. Children do not commence proceedings when their rights have been infringed, completely ignored, or
even positively abused. Children and young people do not seek a remedy in our courts, even when a court is the only place that a remedy exists.
And that is the way we like it. Courts are not places for the faint-hearted, let alone children who may already have suffered a lifetime of abuse, trauma and neglect. We live in a country where legal
aid has been stripped to the bone, and where legal process must submit to the economic orthodoxy of big business. Access to justice for children and young people must be facilitated by competent and
professional adults, who are funded to apply their energies to assisting this most vulnerable group of people in our community. Nobody even pretends that this occurs beyond the criminal jurisdiction.
Our governments, State and Federal, know that this huge funding shortfall is unlikely to cause much of an outcry except from bleeding heart, money-grubbing lawyers and a motley crew of social workers
and academics. Kids don’t have a vote anyway, and it’s not as if they are going to lobby with any effective voice. How can they? (The last time groups of schoolchildren protested in the
streets over reconciliation efforts, they were threatened with truancy provisions).
Most adults find the idea of a child effectively exercising their rights distasteful and against the natural order of things. For some reason, we still cling to the notion that innocence must be
equated with docility and humility. Yet, there is a good argument that children would be far less susceptible to abuse, as one example, if they possessed the knowledge and the confidence to assert
their rights. It always strikes me as illogical that one should expect compliance with the law if you promote only ignorance of it.
Community attitudes to “law and order” in schools are a case in point. What may be regarded as a gross violation of civil liberties in the adult world may fail to raise an eyebrow in the
schoolyard. Victorian schoolchildren have suffered surveillance cameras in their school toilets. Random bag searches, deprivation of liberty, wrongful imprisonment, punishment without trial, findings
of fact on hearsay without corroboration, and public humiliation are aspects of foreign justice systems we find offensive and yet they are commonplace in our schools. Children and young people
are routinely accused of acts of wrongdoing without any degree of procedural fairness in the investigation, and subsequently endure penalties without any right of review.
The point is, we like our children to remember their place, and we don’t really want them to make any sort of contribution until they are earning a wage and casting a vote. In 1997 the
Australian Law Reform Commission teamed up with the Human Rights and Equal Opportunity Commission to release the landmark report “Seen and heard: priority for children in the legal
process”. This comprehensive and sensible 771 page report painstakingly mapped out the position of children in Australian legal and quasi-legal systems. It does not make for happy reading.
The report reminds us that indigenous children are 26 times more likely to be held in police custody than non-indigenous children. A factor of 26 to 1 is simply scandalous. In NSW in 1995 there were
nearly 30,000 suspensions from school, with boys accounting for over 80 per cent of those suspensions. In Family Law, children are often at the centre of a dispute and yet legal aid for separate
representation of their interests is drying up all over the country. There is widespread confusion as to the position of children as consumers, and as civil litigants.
The report makes 286 recommendations to address this disparity in the status of children before the law, many of which are urgent and compelling. The Federal Government is still to make any formal
response, even though it is now two and a half years since the report was presented to the Attorney-General. Clearly, the inclusion of the word “priority” in the report’s title has
had little effect on Cabinet. Neglect for children can start at home and work its way through all of our institutional and government frameworks because we do not give children a real voice. This was
the point of the report, children should be seen and heard.
Not just token “roundtables” and the occasional “youth forum”. Not just toothless school councils which in many cases are not even allowed to set their own agenda. Not just
cursory instructions five minutes before Court to a representative who is not even required to act on those instructions simply because their client just happens to be a child. But a real voice, real
access to decision making processes and the decision makers themselves. Having a voice does not mean getting your way – this is where the doomsayers get it wrong. Schools and families that have
implemented real participation in decision making by young people have not crumbled and fallen to the ground. In most cases they are healthy and vibrant human communities, where mutual respect takes
the place of control and rule by fear.
Governments provide little or no leadership to promote this cultural change. The Northern Territory and Western Australian governments have shown complete and utter disregard for their young people
through their sentencing regimes. Mandatory sentencing is the most ineffective way to control crime, and to rehabilitate the offender. Surely, a civilised community can do better than to simply lock
up its young people for petty (and major) property offences? Generally, young people who commit crime are angry and hurt. Children who are incarcerated by the State do eventually leave those
institutions, sometimes for only a short period, and what is the noticeable difference? They are even more angry and hurt. The ALRC/HREOC report recommended then that the Federal Government should
use its powers to override mandatory sentencing in Western Australia and the Northern Territory. Had this recommendation been taken up earlier, it is likely that a 15 year old NT boy would still be
alive today.
The cowboy testosterone-charged stance on mandatory sentencing adopted by the Chief Minister of the Northern Territory, Denis Burke, and his predecessor, Shane Stone, makes a mockery of the
impartiality of our centuries-old legal heritage. It represents a victory of populism over common sense, and the further erosion of our legal foundations which represent generations of wisdom and
caution. Not surprisingly, the losers are often children. No vote, no money, no influence, no access. Easy and soft targets for politicians who would rather not have to deal with long term solutions.
In NSW, the Opposition leader Kerry Chikarovski authorised television advertising in the lead up to the last State election which promised that young offenders would be publicly humiliated through the
wearing of bright orange vests. Why not bring on the stocks and rotten fruit? Western Australia has experimented with “boot camps” until they were shown to be positively dangerous and
useless in communicating social ideals and community expectations to young people. Children and young people were largely absent in this debate – and yet they were again being pilloried and
ridiculed without censure. Children usually get a guernsey in the media when they are good at sport, have helped out at the local nursing home, or when they are involved in some illegal or
“naughty” activity. Being bright, outspoken, articulate or constructively angry as a child will not attract you a great deal of column space or radio airtime.
Australia is a confusing place for children and young people. They can cross a State border and suddenly find that their sexual relations are illegal as the age of consent differs. Without so much as
a birthday they can move instantly move from juvenile to adult, and back again if they return, with all of the associated legal ramifications of this change in status. A child can be convicted at the
age of ten for a criminal offence, but may not sue for personal injury in their own name. A child might find they have a debt collector on their back for their mobile phone account, but was legally
incapable of entering into the contract in the first place. Corporate boards spend countless hours with their marketing people devising campaigns to attract the “child dollar” but do not
place young people on their boards or advisory groups.
It is a challenging task for those who do try to explain the legal system to young people. But not quite as challenging for those children and young people who are immersed in a community that expects
faultless and quiet compliance with the maze of rules, but does little or nothing to explain those systems or how to exercise the protections and freedoms they offer and which we otherwise hold so
dear.
Alienation is a common feeling described by young people considering or at risk of suicide, in this country where the youth suicide rate is far more concerning than the youth crime rate. The Federal
Government could take one practical step towards addressing this desolate mindscape in our young people by responding to the Seen and heard report, and working quickly with the States and
Territories to implement the recommendations.
When we can actually hear what young people have to say, and they can meaningfully contribute to decisions in our community, we might find that the answers to the “youth problem” have
literally been under our noses (and our thumbs) all the time.
8 May 2000
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