Court of Conscience - Issue 14, 2020

Court of Conscience Rights and Representation: Children and the Law

Issue 14, 2020

Court of Conscience Issue 14, 2020 Rights and Representation: Children and the Law

Court of Conscience respectfully acknowledges the Bedegal, Gadigal and the Ngunnawal Peoples as the custodians and protectors of the lands where each campus of UNSW is located.

Contents

4 Editorial

Marie Veinberg Anonymous Submission UNSW Law Society member 9 Children’s Rights John Tobin 13 Systemic Barriers Call for Systemic Change Judge Peter Johnstone 17 Youth ‘Justice’ in Australia Barry Goldson, Chris Cunneen, Sophie Russell, David Brown, Eileen Baldry, Melanie Schwartz and Damon Briggs 22 Re-Thinking Approaches to Youth Justice Hannah Klose 27 Equal Shared Parental Responsibility and Children’s Rights in Australia Henry Kha and Kailee Cross 31 Does Children Out of Sight Mean Children Out of Mind in the Australian Family Law System?

Leanne Francia 35 The Child’s Voice in International Child Abduction Cases in Australia Michelle Fernando 39 Children’s Right to Know Their (Legal) Parents Richard Chisholm 44 Overseas Compensated Surrogacy Arrangements and the Family Court of Australia Adiva Sifris 49 ‘Please Stop Australians Coming Here’ Kathryn E van Doore 53 Disability Discrimination in Children’s Competitive Sport Dominique Moritz and Simone Pearce 58 At the Intersection Sevda Clark 65 The Failure of the Failure to Prevent by a Person in Authority Offence Penny Crofts 70 The Child’s Right to Participate and Be Heard—Is Research Ethics Exempted?

Rita Shackel 75 ‘Children’s Rights and Media Wrongs’ in the Digital Age Faith Gordon 7

Editorial

Marie Veinberg*

Welcome to Issue 14 of the Court of Conscience, titled ‘Rights and Representation: Children and the Law’. Court of Conscience has a proud history of exploring the impact of the legal system on vulnerable communities. In choosing this year’s theme, we wished to explore a group of particular vulnerability that is universally present in all societies: children.

Although childhood is universal, the experiences of children are not identical; the articles in this Issue highlight the compounding effects that gender, minority status, and inequality have on childhood through an intersectional lens. Increased visibility for children’s issues is essential given the long-term impacts that childhood experiences may have on an individual.

Drawing on Ton Liefaard’s paper published in 2019,1 this Issue of Court of Conscience acknowledges the importance of protecting children’s rights as fundamental but incomplete without appropriate representation to access justice and suitable remedies that supports a child’s development. Discussions regarding access to justice are a constant in social justice discourse, and this year’s issue highlights the particular difficulties that children often encounter due to their ‘special and dependant status’. 2 Issue 14 encompasses this thesis by interspersing articles discussing the rights recognised under the United Nations Convention on the Rights of the Child3 (‘the Convention’) and their implementation in Australia with articles discussing how children can meaningfully gain the representation to access said rights. Ultimately, without the appropriate rights and representation, children cannot be properly protected by the law.

Issue 14 opens with a community submission, recalling their experience with the legal system as a child. I hope that this submission serves to ground the remainder of this issue, reminding readers that the articles that follow are not mere abstract analyses of the law but reflect realities of children’s interaction with Australia’s legal system.

The first article of this Issue is a comprehensive review of the history and development of child rights jurisprudence by John Tobin. Tobin provides context to the remainder of the issue by highlighting the importance of treating children seriously, as people, and allowing children to enjoy the rights granted to them under the Convention.

Tobin’s sentiment is complimented by a trifecta of articles which examine how children’s rights are currently applied in our legal system. Judge Peter Johnstone, the president of the Children’s Court of NSW, draws on his experience in the Children’s Court to highlight that a child’s right to be heard and appropriately represented is paramount, although this can be undermined in practice.

Barry Goldson et al write on the unique and profound vulnerabilities of children engaged in youth justice, particularly those belonging to Aboriginal and Torres Strait Islander communities. Hannah Klose closes this discussion by arguing youth

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Marie Veinberg, Editorial

* Editor-in-Chief, Issue 14, 2020.

1 Ton Liefaard, ‘Access to Justice for Children: Towards a Specific Research and Implementation Agenda’ (2019) 27 International Journal of Children’s Rights 195.

2 Ibid 203.

3 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

4 In April 2019 the Attorney-General stated that Government was ‘fully committed’ to undergoing reform in family law: Catherine Lorimer, ‘Reform of Family Law’ (Briefing Book, Parliamentary Library, Parliament of Australia, July 2019).

5 Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Interim Report, October 2020).

justice is not limited to children’s interaction with the law and requires a holistic, multi-disciplinary public health approach. These three authors reveal that the ratification of the Convention, and the rights contained therein, are not enough in isolation to ensure children are properly protected when interacting with the law.

The relationship between children’s rights and representation is continued through the lens of family law, which has undergone numerous reviews following the commencement of the Family Law Act 1975 (Cth), and continues to be the subject of proposed reform.4 Henry Kha and Kailee Cross highlight the tension between ensuring the best interests of the child and equal shared parental responsibility—examining how a focus on parental rights can conflict those of children.

Leanne Francia’s article, exploring children’s access to rights and representation following parental separation, serves as a companion piece to Kha and Cross.

Michelle Fernando analyses children’s rights to be heard and represented in international abduction proceedings in Australia.

Richard Chisholm and Adiva Sifris proceed to explore artificial conception and surrogacy: Chisholm offers a domestic focus on how Australia considers the impact of artificial conception methods and surrogacy when identifying the legal parents of a child—calling for reform to comply with Australia’s Convention requirements. Sifris, in turn, explores the international legal position of children born overseas through compensated surrogacy arrangements under Australian law and argues the present system does not adequately provide for such children. Continuing this international perspective, Kathryn E van Door discusses the exploitation of children by the orphanage tourism industry and calls for international collaboration to address the structures perpetuating this industry.

Returning to Australia, Dominique Moritz and Simone Pearce as well as Sevda Clark explore how childhood vulnerability is often compounded for people with disability. Moritz and Pearce consider the challenges of disability in competitive sport, whilst Clark explores the barriers to education for children with disabilities requiring individualised supports. Ultimately, both articles consider how Australia can ensure children with disabilities may access activities enjoyed by able-bodied children without exclusion or segregation. I consider these articles to be particularly timely, as the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability has very recently released its interim report at time of publication.5 Penny Crofts critiques Australia’s efforts to combat child sexual assault, noting the narrowness of their application. Whereas, Rita Shackel discusses child representation in research as an extension of a child’s right to be heard under the Convention.

Finally, Faith Gordon concludes our publication by discussing children’s representation in the media. Noting the Convention did not anticipate the harms now present in the digital age, Gordon argues there are gaps in Australian law that require us to look forward to accommodate continuing technological advancements to adequately protect the rights of children.

In creating Issue 14, I am indebted to our anonymous peer reviewers, our designer, Alexander Tanazefti, and our featured artist, Samantha Bowen, who have all contributed greatly to ensure this Issue of Court of Conscience is of the highest quality.

To the 2020 Editorial Team, I would like to extend an enormous ‘thank you’.

This year alone, you have adjusted to online university learning, some may have experienced unforeseen changes in your work obligations, extra-curricular activities or personal commitments due to COVID-19. Despite this, you have diligently edited 15 articles, provided content for our social media pages, and maintained a positive and resilient attitude whilst doing so. It has been a true pleasure to have been your Editor-in-Chief.

I would also like to thank UNSW Law Society for their on-going support of Court of Conscience.

The authors have provided insightful analysis on the status of children’s rights, their current means to access them, and their representation in Australia.

As Australia looks forward and imagines a post-COVID-19 world, I invite readers to reflect on the articles contained herein and be reminded of the importance of considering children’s rights and perspectives when shaping tomorrow’s world.

Afterall, it remains a fundamental truth that the children are indeed our future.

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Anonymous Submission from UNSW Law Society Member

I grew up in a family environment where my father was abusive to myself and my siblings. When my parents began divorce proceedings, we (my brother and sister and I) were assigned an independent child's lawyer. I remember my mother driving us to the Legal Aid office where we waited for our appointment. We were asked to sit in a waiting room while the lawyer was finishing another appointment.

The waiting room was painted in the unnatural hue of cheap fluorescent lightbulbs, making every surface seem a little bit sickly.

Waiting for our turn, I mentally prepared what I wanted to say to my lawyer: that my father was abusive, that I never wanted to see him and that it was dangerous for my siblings to be alone with him. I also looked at my sister, only in elementary school at the time. She looked so composed for her age. I couldn't help but think she was going through the same thought process.

When it was time for the appointment, a large blocky man came out to greet us. We were guided into his office. Introducing himself as ‘Steve’, we learned that he was a former police officer and a ‘true blue footy fan’. He asked if I liked football, I said no. From his small sigh, I could sense disappointment.

Explaining that he would present our views to the court, he asked for each of our opinions. I started, reciting the script I had been planning in the waiting room. Steve looked at me in confusion, ‘you really don’t want to see your dad?

Every bloke needs a dad’. I said that if your dad were abusive then you wouldn’t want one either. He looked at my sister and asked her the same question.

She responded that he was ‘not a good person’.

Steve sighed, ‘See, I spoke with your dad. And he was crying, and blokes don’t cry unless they care about something. That shows me he really cares about you.’

I remember how odd that sounded, I replied slowly ‘he does that to manipulate you to make you do something,’ adding that he had an explosive temper and would hit you as easily as he could hug you. Steve didn’t seem to buy that.

‘You see, the way I see your dad, well, it’s like footy. I used to play football with the team, and he is like a cheerleader, shouting from the sidelines. It’s just that sometimes he gets too passionate, you know? He just gets carried away sometimes.’

I tried again, ‘but he’s abusive?’

After much arguing with Steve about whether or not our dad was abusive, Steve told the Court that my sister and I did not want to see our dad again and the Court ordered it so. However, my brother, who is non-verbal, did not receive the same result. Instead, he was required to still have unsupervised visits with our dad— a man that we repeatedly told the lawyer ‘representing’ us was abusive.

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Children’s Rights Shifting Conceptions, Exploring Possibilities and Honouring Obligations

John Tobin*

* Francine V McNiff Chair in International Human Rights Law, Melbourne Law School.

1 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC Observations’).

2 Committee on the Rights of the Child, Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Australia, UN Doc CRC/C/AUS/CO/5–6 (1 November 2019) (‘CRC Observations’).

3 Ibid [4].

4 CRC (n 1) art 44(6).

5 See Australian Child Rights Taskforce, Protecting Australian Children: The Australian Child Rights Taskforce, (Web Page) <http://www.childrights.org.au/about-us/ what-we-do/>.

6 See, eg, About the National Children’s Commissioner, Australian Human Rights Commission (Web Page, 9 May 2019) <https://humanrights.gov.au/our-work/ about-national-childrens-commissioner>.

7 CRC Observations (n 2) [13]–[14].

The United Nations Convention on the Rights on the Child (‘CRC’)1 celebrated its 30th anniversary on 17 November 2019. Just two months earlier the Committee on the Rights of the Child, the body of independent experts responsible for overseeing the implementation of the convention, issued its concluding observations of Australia. 2 The findings were not as favourable as many Australians might have expected. Indeed, the Committee urged the Australian Government to adopt urgent measures with respect to violence against children, mental health, the impact of climate change, the treatment of refugee children and the treatment of Indigenous children within the youth justice system.3 But few Australians would have been aware of these recommendations, as they received virtually no coverage in any media outlet and despite a legal obligation to do so, they were not made widely available to the public by the Government.4 This is not to say that children’s rights are invisible in Australia. On the contrary, groups within civil society, like the Australian Child Rights Taskforce,5 and the Commissioners for Children and Young People, which can now be found in every state, territory and at the federal level, continue to champion the importance and relevance of children’s rights.6 However, there remains a profound lack of understanding about the convention and children’s rights at all levels of Australian society. This point was stressed by the Committee when it called upon the Federal Government to strengthen its awareness-raising programmes on the Convention … in training programmes for all professionals working with or for children, including all law enforcement officials, teachers, health personnel, social workers and personnel of childcare institutions, as well as State and local government officials.7 The aim of this paper is to make a modest contribution to addressing the knowledge gap that exists with respect to the CRC in Australia. It seeks to do this in two parts.

First, by explaining what it means to adopt a rights-based approach to matters involving children and how this approach differs from the traditional welfare approach.

Second, by demonstrating the relevance of the convention in three contexts: litigation; policy design; and service delivery in matters concerning children. i

From Welfare to Rights

Historically, children were quite literally viewed as the property of their parents under the Roman doctrine, patriae potestas. Social practices and courts maintained this proprietary conception of childhood. This is illustrated in the late 19th century English decision of Re Agar Ellis, where the presiding judge warned that any move by a court to override ‘the natural jurisdiction’ of a father over his child

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‘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’.8 Fortunately, this proprietary conception of children no longer dominates policy and legal frameworks concerning children.9 In fact, from around the turn of the 20th century, there was a shift to what is often referred to as a welfare-based approach to matters concerning children. The fundamental principle underpinning this approach was the idea that a child’s best interests, rather than their parents’, must be the paramount (or primary) consideration in all matters affecting the child.10 The welfare-based approach was also informed by a conception of children as vulnerable and in need of protection.11 As such, they should be entitled to special protections relative to other groups in society. These sentiments can be seen in the precursors to the CRC, namely the 1924 and 1959 Declarations on the Rights of the Child.12 However, notably absent from these Declarations was any recognition of children’s capacities or any entitlement to express their views on matters affecting them. In short, children were to be seen but not to be heard.

A rights-based approach disrupts this old adage because it requires that children not only be seen, but that they also be heard, listened to, and taken seriously. The CRC provides a framework for a rights-based approach. Children’s vulnerability is still recognised under the CRC and provides a basis for their special treatment and special rights.13 However, the inclusion of civil and political rights in the CRC, in particular art 12, represents not only a significant departure from the traditional welfare-based approach but also provides a key plank of what is often referred to as a rights-based approach for children.14 Article 12 provides that ‘[s]tate parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child to be given due weight in accordance with the age and maturity of the child.’

A rights-based approach demands a shift from silencing children to actively creating ways to facilitate their voice and participation in matters affecting them.

It requires a recognition that children’s capacities are constantly evolving and that as this occurs children will increasingly possess insight and expertise into matters affecting them. It anticipates and demands a far more active role for children in the development of laws, policies and processes that are designed to ensure the effective enjoyment of their rights under the convention.

The differences between the traditional welfare approach and a rights-based approach are summarised in the table below.

8 (1883) 24 Ch D 317, 329, 336.

9 John Tobin, ‘The Development of Children’s Rights’ in Lisa Young, Mary Anne Kenny and Geoffrey Monahan (eds), Children and the Law in Australia (LexisNexis Butterworths, 2nd ed, 2016) ch 2; John Tobin ‘Justifying Children’s Rights’ (2013) International Journal of Children’s Rights 1, 16.

10 Ibid.

11 Ibid.

12 Geneva Declaration on the Rights of the Child, League of Nations, opened for signature 26 September 1924; Declaration of the Rights of the Child, GA Res 1386(XIV), 14th sess, UN Doc A/RES/1386 (20 November 1959).

13 John Tobin, ‘Understanding Children’s Rights: A Vision Beyond Vulnerability’ (2015) 84(2) Nordic Journal of Human Rights 155, 155.

14 John Tobin, ‘The Development of Children’s Rights’ (n 9).

15 Ibid.

16 Committee on the Rights of the Child, General Comment No 21 (2017) on Children in Street Situations, UN Doc CRC/C/GC/21 (21 June 2017) [11].

Welfare-based Approach

Rights-based Approach

Victims and passive recipients of assistance

More than victims and potential agents and collaborators

Vulnerable and in need of protection

Protection necessary but capacity for supported decision making

Incompetent and incapable

Evolving capacities

Entirely dependent on adults’ welfare/beneficence

Capacity for resilience and independence and interdependence with adults

Lacking in expertise

Possessing (relevant and relative) expertise

Object of intervention

Subject with entitlements under the convention

Do not require access to information about circumstances

Require access to appropriate information about circumstances

Silenced (seen but not heard)

Active participants (seen, heard, listened to and taken seriously)

Deficits based approach

Strengths based approach

Under a rights-based approach, the conception of a child is very different to that adopted under a welfare approach. Although the vulnerability of children is recognised under both models, under a rights-based approach children are not defined by their vulnerabilities.15 A rights-based approach also demands that all actions and measures with respect to children must be informed by their rights as recognised under the convention.16 Actions to assist children cannot be dependent

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John Tobin, Children’s Rights

17 ‘UN Treaty Database’, United Nations (Web Page) < https://tbinternet.ohchr. org/_layouts/15/TreatyBodyExternal/Treaty. aspx?Treaty=CRC&Lang=en>.

18 Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, UN Doc A/RES/66/138 (14 April 2014).

19 See Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, 39 [75]–[77].

20 See Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

21 See Re Minister for Immigration and Multicultural Affairs (2003) 214 CLR 1; Matthew Groves, ‘International Law, Administrative Powers and Human Rights: The Legacy of Teoh’ in Matthew Groves, Janina Boughey and Dan Meagher (eds), The Legal Protection of Rights in Australia (Hart Publishing, 2019) ch 6.

22 See, eg, Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510, 518 [28]; SZRTN v Minister for Immigration and Border Protection [2014] FCAFC 129, [32]–[33], [39].

23 Re Jamie (2013) 278 FLR 155; Re Kelvin (2017) 327 FLR 15.

24 Blaze v Grady [2015] 54 Fam LR 172, 17 [101].

25 State Central Authority v Castillo [2015] FamCA 792, [247].

26 Bernieres v Dhopal [2015] 53 Fam LR 547, 562–3 [106]–[112].

27 DPP (Vic) v TY [No 3] (2007) 18 VR 241, 245 [51]. See also Re Tracey [2011] NSWLR 261, 265–6 [15], cited in Re Kerry (No 2) [2012] NSWCA 127, [34]– [35], where Spigelman CJ affirming that the provisions of Convention were ‘capable of being relevant to the exercise of the discretion’ reposed in the court.

28 Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) s 8(3).

29 In practice the treatment of human rights treaties via the process of pre legislative has not always been rigorous. See generally: George Williams and Daniel Reynolds ‘The Operation and Impact of Australia’s Parliamentary Scrutiny Regime for Human Rights’ (2015) 41 Monash University Law Review 470, 474-75; Adam Fletcher, Australia’s Human Rights Scrutiny Regime: Democratic Masterstroke or Mere Window Dressing?

(Melbourne University Press, 2018) ch 4.

30 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, 13 November 2014) 6.

31 Royal Commission into the Protection and Detention of Children in the Northern Territory (Final Report vol. 1, 17 November 2017) 199-201.

32 See, e.g, Australian Human Rights Commission, The Forgotten Children: National Inquiry into Immigration Detention 2014 (Report, 11 November 2014) <https://humanrights.gov.au/sites/default/files/document/ publication/forgotten_children_2014. pdf>; Human Rights and Equal Opportunity Commission of Australia, A Last Resort?

National Inquiry into Children in Immigration Detention (Report, 2004).

33 Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Donor Conception Practices in Australia (Report, 10 February 2011) [2.11].

34 House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Surrogacy Matters: Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (Report, 16 April 2016) [1.101]–[1.121].

on charity, discretion or goodwill. On the contrary, under a rights-based approach, a wide range of interests such as life, liberty, health and education are elevated to the status of a right, which in turn creates an obligation to respect, protect and fulfil these rights for children. ii

Using a Rights-Based Approach in Practice

Litigation The CRC, which was ratified by Australia on 17 December 1990,17 has not been fully incorporated into domestic law. As such, like other international human rights treaties to which Australia is a party, but have yet to be incorporated into domestic law, there is no direct cause of action under domestic law for a child if their rights have been violated.18 At the international level, an Optional Protocol was adopted in 2011 which allows children to make complaints to the Committee on the Rights of the Child when their rights have been violated. However, Australia is not a party to this Optional Protocol.

This does not mean that the CRC has no relevance within the courts in Australia.

There are still the fundamental principles regarding the status of ratified international human rights treaties namely, that such treaties can be used to assist in resolving an ambiguity with respect to the interpretation of legislation; to assist in the development of the common law; or when exercising judicial discretion.19 The High Court used Australia’s ratification of the CRC to develop what is known as the principle of legitimate expectation. 20 Although the status of this principle notion is shaky, 21 it is still routinely employed as a principle of procedural fairness in immigration proceedings, which threaten the best interests of the child. 22 There are also opportunities to use the CRC in the Family Court of Australia, which has maintained an engagement with the convention when resolving disputes across a range of matters including gender dysphoria;23 arrangements for shared parenting;24 child abduction;25 and declarations of parentage. 26 At the state level, engagement with the CRC is more sporadic, but creative advocates have on occasion been able to persuade receptive judges as to the relevance of the convention.

For example, Justice Bell of the Victorian Supreme Court referred to the convention when exercising his judicial discretion regarding the sentence to be imposed on a 14-year-old boy found guilty of murder. He explained that he would take Art 40(1) of the Convention into account, for two essential reasons: on becoming a party, Australia signified its respect for the fundamental human rights that the Convention expresses; and I think the exercise of the sentencing discretion will be the better for it. In practical terms, the main significance of considering this matter will be to supply a further basis for, and to reinforce the existing principle of, giving primary emphasis to youth and rehabilitation as a mitigating factor when sentencing children. 27 Policy Design There is an obligation under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) for federal legislative proposals to be scrutinized against all human rights treaties to which Australia is a party, including the CRC, before a bill affecting children’s rights can be submitted to Parliament. 28 Therefore, in theory the CRC should play an active role in the development of legislation that is designed to give effect to policies concerning children. 29 Moreover, there is nothing to prevent the convention from being used to shape and influence the design of policies for children at the federal, state and local government levels. The willingness to do so very much depends upon the knowledge and understanding of the convention among the advocates and policy makers responsible for the development of polices concerning children.

There is certainly evidence that the CRC is often taken into account in inquiries, such as the Royal Commission on Institutional Child Sexual Abuse 30 and the Royal Commission on Juvenile Justice and Child Protection in the Northern Territory.31 The Australian Human Rights Commission has conducted two inquiries on the detention of refugee children and the impact of this practice on children’s rights under the CRC.32 There have also been numerous Senate inquiries on issues such as donor conception33 and surrogacy 34 where the convention and children’s rights have been raised. The extent to which the convention is treated seriously within

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these debates varies greatly. But there is no doubt that there is an opportunity to draw upon the convention and the general comments of the Committee, which cover a vast range of matters ranging from youth justice,35 to the rights of children with a disability,36 when developing policies that affect children in Australia.

Service Delivery One aspect of children’s rights which is often overlooked is its consequences for the delivery of services for children and young people. Under the traditional welfare model, children are seen as passive and vulnerable and therefore in need of the assistance of adults with the relevant expertise. This problem with this model is that there is a risk that children’s views and voices will not be taken into account in the delivery of services that are designed for their benefit. Take for example, the results of a study conducted a few years ago by the Australian Institute for Family Studies with respect to the hopeful expectations that children had of their lawyers: ‘Zoe explained: ‘I was really happy, and I thought ... yay, finally he was gonna be on our side’; Lachlan added: ‘Before, I guess I thought it was beneficial because ... I would actually have my views portrayed in some way, which has to be a starter.’

Sadly, these expectations did not always align with the experience of children: Well, kind of, like, they weren’t listening to anything we were saying.

Like, they didn’t care. [Hannah] It was all pretty bad ... Probably that she just didn’t listen. Like, she would ask us questions and we’d tell her, but then she just didn’t care what we said. And she ignored what we said. [Samantha]37 This inability to listen to children is consistent with the features of a welfare-based conception, as the vulnerability of children is highlighted but their capacity for agency, collaboration and expertise is overlooked. Experts who adopt such an approach, whether they are lawyers, social workers or health professionals, may be happy to ‘save’ and ‘protect’ children, but they may overlook their obligation to empower and respect them. In contrast, a rights-based approach to service delivery recognises the relative vulnerability of children but also recognizes their capacity and expertise. It demands a service model that focuses on the creation of systems that allow children to express their views; that provide them with relevant and age appropriate information; that treat their views seriously; and enables the creation of partnerships rather than paternalism. iii

Conclusion: The Need to Shift Conceptions

A survey undertaken by the Valuing Children Initiative in 2016 found that ‘looking after children’ was ranked ninth out of ten issues of importance to adults in Australia.38 More concerning still were the survey results of the five most commonly selected words used by adults to describe children: spoilt (57%); fortunate (47%); lazy (45%); selfish (44%) and vulnerable (38%).39 These findings suggest that many Australian adults hold a conception of children that is vastly different to that offered under the CRC. Thus, the challenge moving forward is twofold. First to persuade adults that children need not and must not be characterised through such a negative lens; that an alternative conception of children exists in which they are competent, resilient, and entitled to have their views heard and taken seriously in all matters affecting them. The second challenge is to persuade policy makers, advocates, and all other professionals working with children as to the relevance of children’s rights in the context of litigation, policy design and service delivery. Australia currently remains short of where its needs to be in terms of fulfilling its international obligations under the CRC. Indeed, a survey undertaken by the National Commissioner for Children and Young People found that the rights which ‘least ring true for children’ were: 1. I can have a say about things that are important to me; 2. I am treated fairly; and 3. I can get accurate information when I need it.40 The challenge and indeed obligation now for all adults is to ensure that no more Australian children experience such a profound sense of disappointment in their ability to enjoy the rights to which they are entitled under the convention.

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John Tobin, Children’s Rights

35 Committee on the Rights of the Child, General Comment No 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019).

36 Committee on the Rights of the Child, General Comment No 9 (2006): The Rights of Children with Disabilities, UN Doc CRC/C/ GC/9 (27 February 2007).

37 Rae Kaspiew et al, Independent Children’s Lawyer Study: Final Report (Report, June 2014) 133, 135, 136.

38 Kate Whelan, Australians Attitudes to Children: The Valuing Children Initiative Benchmark Survey (Report, 19 July 2016) 9. The highest ranked issues included management of the economy, a fair taxation system and housing affordability.

39 Ibid 6.

40 National Children’s Commissioner, Children’s Rights Report 2019: In their Own Right (Report, 19 March 2020) 62.

Systemic Barriers Call for Systemic Change A Time to Explore Alternative Child Representative Models in the NSW Care and Protection Jurisdiction Judge Peter Johnstone*

* I acknowledge the considerable help and valuable assistance in the preparation of this paper by Dominique Ferreira.

1 Nelson Mandela, ‘Address by President Nelson Mandela at the Launch of the Nelson Mandela Children’s Fund’ (Speech, Pretoria, 8 May 1995).

2 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 12.

3 Children and Young Persons (Care and Protection) Act 1998 (NSW) s 10 (‘Care Act’).

4 Australian Institute of Family Studies, ‘Children in Care’, Child Family Community Australia (Web Page, September 2018) <https://aifs.gov.au/cfca/publications/ children-care>.

5 Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process (Report No 84, November 1997); James Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (Report, November 2008) vol 2.

i Introduction

The great humanitarian, Nelson Mandela, once said ‘[t]here can be no keener revelation of a society’s soul than the way in which it treats its children’.1 His philosophy has encapsulated the very essence of what I have strongly advocated for in my eight years as President of the Children’s Court of New South Wales.

A child’s right to participate in decisions that affect them is recognised in international2 and New South Wales (‘NSW’) law3 as society acknowledges the value children and young people can add when they are empowered to do so.

Yet the question remains: does participation in principle equate to participation in practice?

This article does not propose in any way to reinvent the wheel but rather to build on what we have and what we know. The number of children in care continues to remain high in Australia4 and with continuing scientific, psychiatric and sociological advancements, it is time that there is a discussion of alternative models for involving children in the decision-making process. ii

Child Representation Models in the Care and Protection Jurisdiction

The Children’s Court of New South Wales is one of the oldest Children’s Courts in the world. It is a specially created stand-alone jurisdiction whose origins can be traced back to 1850. Since its inception, the idea of a separate specialist jurisdiction to deal with children has prospered and developed until the present time.

The Children’s Court deals predominantly with youth crime and the care and protection of children and young persons.

Over time, the legislation that governs the way in which the Children’s Court deals with cases has become more complex but the fundamental principle upon which the Court was established remains the same: that children should be dealt with differently, and separately from adults.

Proceedings relating to the care and protection of children and young persons in NSW, including first instance matters before the Children’s Court and appeals from its decisions, are public law proceedings. They are governed, both substantively and procedurally, by the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘Care Act’).

The Care Act endorses strong participation principles as enshrined in the United Nations Convention on the Rights of the Child and prescribes two models of participation of a child or young person. This occurred following reports which highlighted children being marginalised and effectively excluded from being heard and participating in decisions that affect them.5

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Representation models include an independent legal representative (‘ILR’) or a direct legal representative (‘DLR’).6 An ILR is appointed to act as the representative for a child under 12 years.7 Otherwise known as the ‘best interests’ lawyer,8 they must consider the child’s views whilst maintaining an overarching commitment to safeguarding the child’s interests. The ILR should consult with the child, but their overriding duty is to the Court and to act in accordance with the safety, welfare and wellbeing of the child.

In contrast, a DLR is appointed for a child 12 years old or above who is capable of giving proper instructions.9 The DLR must then advocate as instructed by the child. Both roles are critical to ensuring that the participation principles of the Care Act are adhered to.

In addition to these provisions, the Law Society of New South Wales has prepared the Representation Principles for Children’s Lawyers10 and Legal Aid New South Wales has prepared the Care and Protection Practice Standards.11 These guidelines set out a number of important duties and obligations that children’s representatives should adhere to. iii

The Relevance of Brain Science

Children and young people that come before the Children’s Court are amongst the most vulnerable, socially and economically disadvantaged members of society.

They experience higher rates of mental illness, behavioural problems, disability and instability in care and education than the general community.12 Often these serious and complex problems result from the cumulative effects of exposure to adverse and traumatic events such as violence, maltreatment, substance abuse and instability.13 It is common ground that traumatic events experienced early in life can be damaging to the developing brain which may result in children and young people presenting as developmentally younger than their chronological age.14 Conversely, a child’s demeanour may imply a greater level of understanding or ability than they actually have, due to their lived experiences,15 an attribute often seen with children who have been parentified.

The growing recognition of the relevance of brain science has driven the need for policy and legislation to match the research. Evidence and neurobiological data from studies of Western adolescents that suggests biological maturation of the brain begins and continues much later in life than was generally believed.16 Neuroimaging studies mapping changes in specific regions of the brain have shown that the frontal lobe (which is responsible for ‘higher’ functions such as planning, reasoning, judgement and impulse control) only fully matures well into the 20s, with some even suggesting that they are not fully developed until halfway through the third decade of life.17 The expectation that children from all walks of life have the same cognitive function and capacity to make a wise choice about their life is idealistic. Research suggests that children have difficulty in differentiating between their own feelings and needs against the wishes of others, which makes them more susceptible to influence.18 I accept this proposition is not the same for all children, however, it is plausible in the care jurisdiction and is a view recently endorsed by the High Court regarding a family law matter involving children aged 17 and 15 years.19 Whilst much of the research around brain science remains in its infancy, one cannot ignore the reality that children’s capacity to understand and foresee consequences is variable and that a systemic and developmentally informed understanding of children that enter the care jurisdiction needs to be applied. iv

Direct Representation Model

The debate on whether lawyers act in what they perceive to be the best interests of a child or on direct instructions is an old one which has been ‘extensively canvassed’.20 Since the inception of the direct representative role in NSW (over 20 years ago), there have been mixed views and yet few inquiries which look at whether the model achieves its stated purpose.

Unsurprisingly, an area of contention is the blanket assumption that children upon turning 12 years of age are competent and capable to instruct. Essentially, the existing model provides these children with the same entitlements and responsibilities to participate as adults. Having regard to the brain science, the concerns surrounding age-based competency are compelling.

14

Judge Peter Johnstone, for Systemic Change

6 Care Act (n 3) s 99A. 7 Ibid ss 99A(2)(a), 99B. 8 This is a colloquial term used within the legal profession. Law Society of New South Wales, Representation Principles for Children’s Lawyers (Representation Principles Report, August 2014, 8.

9 Ibid s 99C. 10 Law Society of New South Wales (n 8).

11 Legal Aid New South Wales, Care and Protection Practice Standards (Practice Standards Report, June 2017).

12 Sara McLean, The Effect of Trauma on the Brain Development of Children: EvidenceBased Principles for Supporting the Recovery of Children in Care (Child Family Community Australia Practice Resource, June 2016).

13 See ibid See also Australian Institute of Health and Welfare, Australia’s Children (Report, 18 March 2020) 222, 307–17, 321–2, 327–54.

14 Lani Blackman, Representing Children and Young People: A Lawyer’s Practice Guide (Victoria Law Foundation, 2002) 89–95.

15 C J Lennings, ‘Communication with Children over 10: If Wishes Were Horses, Beggars Would Ride’ [2004] (August) Children’s Law News 8.

16 Justice Andrew Becroft, ‘Principal Youth Court Judge of New Zealand, “‘From Little Things, Big Things Grow”: Emerging Youth Justice Themes in the South Pacific’ (Conference Paper, Australasian Youth Justice Conference, 21–2 May 2013). For further information on adolescence brain development see www.brainwave.org.nz.

17 Sara B Johnson et al, ‘Adolescent maturity and the brain: the promise and pitfalls of neuroscience research in adolescent health policy’ (2009) Journal of Adolescent Health 45(3) 216–21.

18 Lennings (n 15) 4. See Patrick Parkinson and Judith Cashmore, The Voice of a Child in Family Law Disputes (Oxford University Press, 2008) 3–4.

19 In Bondelmonte v Bondelmonte [2017] HCA 8, 10 [41], the High Court unanimously held that the trial judge was correct in giving limited weight to the children’s wishes as their stated preferences were influenced by the father.

20 Patrick Parkinson, ‘The Child Participation Principle in Child Protection Law in New South Wales’ (2001) 9(3) The International Journal of Children’s Rights 259, 268.

21 Rachel Carson et al, Children and Young People in Separated Families: Family Law System Experiences and Needs (Final Report, June 2018) 50–68, 89, 92–3, 96. See also Nicola Ross, ‘Different Views? Children’s Lawyers and Children’s Participation in Protective Proceedings in New South Wales, Australia’ (2013) 27(3) International Journal of Law, Policy and the Family 332, 346–8.

22 Megan Mitchell, Children’s Rights Report 2019: In Their Own Right (Report, 28 October 2019).

23 Rae Kaspiew et al, Independent Children’s Lawyer Study (Final Report, June 2014) 36–40.

24 Felicity Bell, ‘Facilitating the Participation of Children in Family Law Processes’ (Discussion Paper, Centre for Children and Young People, 2015) 18–20. See also Judith Cashmore and Kay Bussey, ‘Perceptions of Children and Lawyers in Care and Protection Proceedings’ (1994) 8(3) International Journal of Law and the Family 319, 334.

25 See Bell (n 24) 13–24. See also Ross (n 21) 354.

26 See also Cashmore and Bussey (n 24) 320.

See Kaspiew et al (n 23) 55. See especially Ross (n 21) 341–8.

27 The court is required to avoid adjournments, complete 90% of cases within nine months of commencement and 100% of cases within 12 months.

28 Kaspiew et al (n 23) 87–91; Ross (n 21) 352–3.

29 Kaspiew et al (n 23) 92–5; Ross (n 21) 342.

30 Judy Atkinson, Trauma-Informed Services and Trauma-Specific Care for Indigenous Australian Children (Closing the Gap Clearinghouse Report No 21, July 2013) 2. See also Liz Wall, Darryl Higgins and Cathryn Hunter, Trauma-Informed Care in Child/ Family Welfare Services (Children Family Community Australia Paper No 37, February 2016) 9.

31 Bell (n 24) 33–6.

There have been decades of both empirical and interdisciplinary studies on child representation and participation. The message from children is unequivocal: a child inclusive approach where there is direct contact, transparency and a trusted advocate is pivotal in facilitating child participation. 21 Being included and empowered to participate in a meaningful way was a consistent theme found by the National Children’s Commissioner. 22 Whilst studies consistently reiterate that children wish to participate directly and DLRs have a duty to obtain instructions, it is not necessarily realised in the court room and judicial expectation is often not met. 23 I do not wish to speculate as to the inconsistent practices I have observed, but note that far too often I have had to delay proceedings or remind a DLR of their duty to obtain instructions. Similarly, I am being told from the bar table that a child ‘does not wish to be heard’, nor file evidence regarding their position nor attend court to voice their views. The lack of direct participation is a disappointing one and appears contrary to research.

The richness of children’s insights and experiences should not be undervalued.

Whilst the Secretary of the Department of Communities and Justice updates the Court as to interim placements, family contact and the general wellbeing of children, there is no greater evidence of the impact of the Court and the Department’s decisions upon a child than hearing from the children themselves. Accordingly, the Children’s Court of NSW launched a new website in August 2020 which sends a message from the Court that child participation is encouraged and thus expected.

The conundrum for lawyers, when their instructions are contrary to what they perceive is in a child’s best interests is a palpable one. Far too often has a case come before the Children’s Court following a disclosure by a child which precipitated the proceedings, and which was subsequently retracted or disavowed.

The struggle of the legal representative to submit to the Court a wish or desire which they perceive is not in their client’s interests, and which is possibly influenced, is apparent.

I accept that in some circumstances lawyers may feel a reluctance to facilitate a level of participation that is contrary to their client’s interests due to the protective nature implicit in the child representatives’ role. 24 However, the DLR role is not to assess capacity or determine whether a view is genuinely held or being influenced in some way, as this is for the Court to decipher.

The decisions made in the care jurisdiction have profound and far reaching consequences for children and their families. More often than not, the circumstances in which children find themselves before the Court are out of their control and therefore empowering a child to actively participate and have their voice heard is pivotal. v

Barriers to Effective Participation

Explicit in a child’s ability to meaningfully participate is the approach taken by their legal representative. 25 Studies continually highlight effective representation consisting of a number of variables. This includes the need for rapport building and developing a relationship that instills trust which realistically involves faceto-face contact and more than one meeting, providing an opportunity and choice on how to participate, and for information sharing. 26 I accept that the Care Act is not always conducive to meeting these necessary requirements, as time is of the essence, 27 and inadequate funding and professional training are a reality for lawyers. 28 However, the implication that the participation principles mandated in the Care Act are not always adhered to is troubling.

Studies suggest that lawyers themselves feel they do not necessarily possess the skills and knowledge to interview children, especially children from a trauma background or at risk of harm. 29 The risks associated with not using a trauma-informed approach to service delivery have the potential to inflict further harm and trauma.30 However, it is apparent that the risks associated with silencing a child are just as prevalent and may result in the child or young person disengaging.

Concerns around systems abuse and causing further distress to children31 in the care jurisdiction are understandable and apparent. Whilst I accept the dilemmas faced by legal representatives, they are often a conduit of information which assists the court in making decisions ensuring the safety, welfare and wellbeing of a child. Accordingly, it is essential to the efficacy of the role that lawyers receive ongoing specialised training which includes childhood development, trauma informed approaches and age appropriate communication techniques.

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Given lawyers and children are cognisant of these issues and the gaps within the system continue to widen, perhaps trialling a multi-disciplinary approach, akin to the British or Pittsburgh model of KidsVoice is likely to be more effective.32 vi

The Way Forward

Given the limited studies which have evaluated the DLR model and whether it has achieved its purpose, I am of the view that an empirical study which looks at children’s experiences of the child representation models in NSW would be invaluable.

Whilst there are many variations to the child representative model in Australia, it seems logical to me that a national model which incorporates both best interests’ principles and an opportunity for a child to directly instruct is the way forward.

I have significant reservations about our existing DLR model being age-based, as brain science and my observations in court have persuaded me to consider alternate models to enhance the participation of children.

The international research surrounding a multi-disciplinary or dual approach is compelling and I consider there is value in trialling a model given its reported benefits.

Finally, the research which consistently highlights the lack of training, professional development and review mechanisms regarding child representatives is of concern. Given the pivotal role child legal representatives play in the care jurisdiction of the Children’s Court, I would support a discussion to address the issue.

16

Judge Peter Johnstone, for Systemic Change

32 See Kylie Beckhouse, To Investigate Legal Representation Schemes for Children in the US, Canada and the UK: Administration, Delivery and Innovation (Final Report, 6 July 2015) 61–71.

Youth ‘Justice’ in Australia Histories of Human Rights Violation, Racialised Injustice and Prospects of Redress

Barry Goldson, Chris Cunneen, Sophie Russell, David Brown, Eileen Baldry, Melanie Schwartz and Damon Briggs*

* Barry Goldson is Professor/Charles Booth Chair of Social Science at the University of Liverpool; Chris Cunneen is Professor of Criminology at Jumbunna Institute for Indigenous Education and Research at the University of Technology Sydney; Sophie Russell is Research Associate at UNSW and a Doctoral Candidate at the Faculty of Law, University of Technology Sydney; David Brown is Emeritus Professor, Faculty of Law, UNSW; Eileen Baldry is Professor of Criminology at UNSW; Melanie Schwartz is Senior Lecturer, Faculty of Law, UNSW; Damon Briggs is Principal Curriculum Lead for ‘Frontline’, a social work education agency in the UK. 1 Eileen Baldry et al, ‘“Cruel and Unusual Punishment”: An Inter-Jurisdictional Study of the Criminalisation of Young People with Complex Support Needs’ (2018) 21(5) Journal of Youth Studies 636.

2 The Comparative Youth Penality Project (‘CYPP’) was supported by an Australian Research Council Discovery Project Grant [grant number DP 130100184], an Economic and Social Research Council award [grant number ES/J500094/1] and a financial contribution from the Howard League for Penal Reform. The principal findings from the Project will be published later this year: Barry Goldson, Chris Cunneen, Sophie Russell, David Brown, Eileen Baldry, Melanie Schwartz and Damon Briggs, Youth Justice and Penality in Comparative Context (Routledge, 2020).

3 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA Res 40/33, UN GAOR, UN Doc A/Res/40/33 (29 November 1985) (‘Beijing Rules’).

4 United Nations Guidelines on the Prevention of Delinquency, GA Res 45/112, UN GAOR, UN Doc A/Res/45/112 (14 December 1990) (‘Riyadh Guidelines’).

5 United Nations Rules for the Protection of Juveniles Deprived of their Liberty, GA Res 45/113, UN GAOR, UN Doc A/Res/45/113 (14 December 1990) (‘Havana Rules’).

6 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered in force 2 September 1990) (‘CRC’). Australia formally ratified the CRC on 17 December 1990.

i Introduction

This issue of the Court of Conscience seeks to highlight how the law, and both legal and social institutions, often fail to respect and uphold the human rights of identifiable groups of children who are perceived to be among the most vulnerable members of society. In keeping with this underpinning thematic, we turn our attention to children enmeshed within youth justice processes. Indeed, if children per se might be conceptualised as being both inherently and structurally vulnerable, those in conflict with the law—‘young offenders’—are arguably more vulnerable still.

The international evidence is unequivocal in this respect and, wherever we might care to look, such children are typically drawn from the most socially and economically marginalised and dispossessed families, neighbourhoods and communities.

Exposed to a myriad of racialised, gendered and class-based injustices—and often compounded further by histories of social welfare and child protection intervention and mental ill-health and/or cognitive/neuro-disabilities—youth justice populations represent skewed and profoundly disadvantaged demographics.1 Our article derives from an extended programme of research—the Comparative Youth Penality Project (‘CYPP’)—that both addresses a wide range of pressing issues and forms the first major comparative study of Anglo-Australian youth justice and penality.2 For present purposes, we focus on youth justice in Australia and consider three key questions. First, how do international human rights standards pertain to law, policy and practice in the realm of youth justice? Second, to what degree is youth justice implicated in the production and reproduction of social injustices, especially in respect of Aboriginal and Torres Strait Islander children? Third, what prospects do self-determined localised initiatives offer for securing redress, recognising human rights and obtaining justice for Indigenous children? ii

International Human Rights Standards and Youth Justice

Three international human rights instruments are especially significant in the youth justice sphere. First, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘Beijing Rules’).3 Second, the United Nations Guidelines on the Prevention of Delinquency (‘Riyadh Guidelines’),4 and third, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (‘Havana Rules’).5 Furthermore, the core provisions contained within the Beijing Rules, the Riyadh Guidelines and the Havana Rules were substantially bolstered in 1990 when the United Nations Convention on the Rights of the Child (‘CRC’)—the most widely ratified human rights instrument in history—came into force.6 More recently, the United Nations Committee on the Rights of the Child has also adopted General

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7 Committee on the Rights of the Child, General Comment No 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019).

8 CRC (n 6) art 2.1 (emphasis added).

9 Ibid art 3.1 (emphasis added).

10 Ibid art 37(a)–(c) (emphasis added). Very similar provisions are replicated in the other international human rights standards cited above.

11 Chris Cunneen, Barry Goldson and Sophie Russell, ‘Juvenile Justice, Young People and Human Rights in Australia’ (2016) 28(2) Current Issues in Criminal Justice 173, 173; Goldson et al (n 2).

12 Children from Arabic, African and Pacific Islander backgrounds are also significantly overrepresented in the realms of youth justice and penality in Australia.

13 Committee on the Rights of the Child, Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Australia, UN Doc CRC/C/AUS/CO/5–6 (1 November 2019).

Comment No 24 that encapsulates the core provisions of human rights compliant youth justice.7 Taken together, the United Nations human rights standards impose a wide range of obligations and provide a well-established framework for modelling youth justice statute, formulating policy and developing practice in Australia, alongside each of the other nation states to which the same instruments apply.

Specific provisions of the CRC are especially salient, including: Article 2.1 ‘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 …’8 Article 3.1 ‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’.9 Article 37(a)–(c) ‘No child shall be subjected to … cruel, inhuman or degrading treatment … imprisonment of a child shall be … used only as a measure of last resort and for the shortest appropriate period of time … every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person’.10 Notwithstanding the centrality of ‘non-discrimination’, ‘best interest’ and ‘last resort’ principles within international human rights instruments, there is ample evidence that youth justice in Australia is often characterised by discriminatory, damaging and excessively punitive interventions. iii

Histories of Human Rights Violation and Racialised Injustice

In order to obtain a complete sense of the relationship between international human rights standards and the operational processes of youth justice, we applied a systemic analysis. Beginning with the point at which criminal responsibility is formally imputed and progressing through each discrete stage of the system, up to the point where the child might ultimately be deprived of her/his liberty, our research exposes systemic human rights violations and implicates youth justice in Australia as a primary driver of persistent injustice(s) (especially racialised injustice(s)).11 Indeed, we argue that the very children in greatest need of the protections and benefits conferred by international human rights standards are often those whose rights are most severely compromised if not flagrantly violated. In particular, the striking over-criminalisation of Aboriginal and Torres Strait Islander children at the front end of youth justice processes, and their equally conspicuous over-representation at the back (and most punitive) ends of the same processes, reveal historically embedded and seemingly worsening forms of racialisation and racism. Of course, the experiences of settler colonialism in Australia included the brutal dispossession of Aboriginal and Torres Strait Islander peoples and the youth justice system is seemingly implicated—both historically and contemporaneously— in maintaining modes of colonial ordering that continue to subjugate Aboriginal and Torres Strait Islander children.12 The most recent report issued by the United Nations Committee on the Rights of the Child echoes our own research findings: 47. The Committee again regrets that its previous recommendations have not been implemented and remains seriously concerned about: …

(b) The enduring overrepresentation of Aboriginal and Torres Strait Islander children and their parents and carers in the justice system;

(c) Reports that children in detention are frequently subjected to verbal abuse and racist remarks, deliberately denied access to water, restrained in ways that are potentially dangerous and excessively subjected to isolation;

(d) The high number of children in detention, both on remand and after sentencing …13 In fact, in every state and territory in Australia, Aboriginal and Torres Strait Islander children are manifestly over-represented in penal detention compared with their non-Indigenous counterparts, and in some discrete states and territories such disproportionality assumes especially striking forms. In Victoria, Aboriginal and

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Torres Strait Islander children are locked-up at 12 times the rate of non-Indigenous young people; in New South Wales the corresponding differential stands at 18 times; in Queensland 32 times; in South Australia 36 times, and in Western Australia 38 times.14 Within this context, the specific nature of the child’s domiciliary/familial location is critical and the Australian Institute of Health and Welfare distinguishes between ‘Major cities’, ‘Inner regional’ districts, ‘Outer regional’ areas, ‘Remote’ settings and ‘Very remote’ communities: On an average day in 2017–18 Indigenous young people under [youth justice] supervision were more likely than non-Indigenous young people to have lived in Outer regional areas (23% compared with 7%) and Remote or Very remote areas (20% compared with less than 1%) …

Young people aged 10-17 from Remote areas were … 5 times as likely [as those from Major cities] to be in detention on an average day, while those from Very remote areas were 9 times as likely …15 iv

Self-Determination and Prospects of Redress

Set against ‘centuries of colonisation’ that have rendered ‘the contemporary position of Indigenous peoples … [as] one of profound social, economic and political marginalisation’, and taking account of the persistent human rights violations and deeply problematic racialisation of youth justice in Australia, alternative—if not replacement—approaches are imperative in which the ‘prioritisation of Indigenous voices … the fundamental importance of Indigenous knowledges … the Indigenous right to self-determination, and the importance of Indigenous agency’ are applied and enacted.16 By drawing selectively from our research sites, we briefly review three such innovations here: the Koori Children’s Court in Victoria; the Yiriman Project in the Kimberley region of Western Australia; and the Maranguka Justice Reinvestment Project (‘Maranguka JR Project’) in Bourke, New South Wales.

The Koori Children’s Court was enabled by the provisions of the Magistrates’ Court (Koori Court) Act 2002 (Vic). Section 1(b) of the Act specifies the primary objective of ‘ensuring greater participation of the Aboriginal community in the sentencing process … through the role to be played in that process by the Aboriginal elder or respected person and others’. Significantly, Elders assume prominent roles in proceedings and ‘there is a strongly performative element to Aboriginal courts … [including the display] of Indigenous flags, art and other cultural objects [that reinforce] the importance of Indigenous culture in the sentencing process’.17 The Koori Children’s Court, alongside other ‘Indigenous sentencing courts’, have been evaluated and a common theme in the evaluations is the increased participation and ownership of the program by local Indigenous communities.

The Yiriman Project is based in the Kimberley region of Western Australia, a State where ‘Aboriginal young people make up just over 6 per cent of 10 to 17 year olds, but account for more than three quarters of those in juvenile detention’.18 The Project was initially established in 2000 by Aboriginal Elders representing four Kimberley language groups the Nyikina, Mangala, Karajarri and Walmajarri.

The Project might not ‘“fit” comfortably into contemporary government language, or policy directions’19 but its longevity reflects the faith that Aboriginal Elders have invested and sustained and ‘[t]he project has been praised by the Productivity Commission as a “project that works” … it was a winner in the 2012 Indigenous Governance Awards, and [it] was also cited in the March 2015 National Mental Health Commission Report … as an exemplar of national best practice for working with Aboriginal youths at risk’. 20 The Maranguka JR Project, located in the remote town of Bourke in north-west New South Wales, is ‘the first major pilot site in Australia to adapt and implement an Aboriginal-led place-based model of justice reinvestment’.21 For over two decades, the Aboriginal and Torres Strait Islander communities have been overrepresented in youth justice systems. Accordingly, a coalition of local Aboriginal leaders and state-wide organisations identified that a new approach was needed.

Taken in the round, the Maranguka JR Project has been shown to facilitate promising approaches to local decision making and enable the mobilisation of communitybased services that build strength and reduce contact with youth justice systems.

Our research re-confirms that Aboriginal and Torres Strait Islander communities cannot rely on ‘top-down’ (mis)applications of international human rights standards to provide justice for their children. Irrespective of the progressive provisions

20

Barry Goldson et al., Youth ‘justice’ in Australia

14 Australian Institute of Health and Welfare, Youth Justice in Australia 2017–18 (Report, 10 May 2019) 9.

15 Ibid 11.

16 Chris Cunneen and Juan Tauri, Indigenous Criminology (Policy Press, 2016) 1.

17 Ibid 124.

18 Kathryn Thorburn and Melissa Marshall, ‘The Yiriman Project in the West Kimberley: An Example of Justice Reinvestment?’ (Current Initiatives Paper No 5, Australian Institute of Criminology, July 2017) 1.

19 Ibid 5.

20 Ibid 3.

21 KPMG, Maranguka Justice Reinvestment Project: Impact Assessment (Report, 27 November 2018) 6.

of such instruments, in practice youth justice is often mutated and disfigured in ways that give rise to human rights violations and racialised injustices. Conversely, ‘bottom-up’ and self-determined innovations offer some prospects of redress and, as such, we support the fundamental principles underpinning such approaches.

But we also sound a note of caution insofar as such localised initiatives—however effective—ultimately fall short of the complete realisation of Aboriginal and Torres Strait Islander self-determination in the spheres of youth justice. Whatever the legitimacy and effect of the same initiatives, therefore, they ultimately fail to produce an equally shared jurisdiction between Aboriginal and Torres Strait Islander peoples and the settler colonial state and, in and of themselves, they can never substantially disrupt the configurations of power and decision-making that remain vested in state institutions.

At a moment in our history when the ‘Black Lives Matter’ movement is raising consciousness and shining a light on racialised injustices around the world, now is the time for state institutions and those with power in Australia to recognise the rights and provide justice for all children.

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Re-Thinking Approaches to Youth Justice A Public Health Model Approach to Respond to Young People’s Involvement in Violence in Australia Hannah Klose*

i

Introduction

*

It has been over 30 years since the Australian government signed the United Nations Convention on the Rights of the Child (‘CRC’).1 Last year, an examination was conducted on the Government’s progress in the last five years in relation to children’s rights in Australia.2 Based on findings from my own research, it is clear that there is a distinct gap between ‘rights’ and ‘public health’ when it comes to addressing children’s needs and protecting them from potential harm. Hence, this article proposes that a holistic and interdisciplinary public health approach be implemented in Australia, and ideally, on a global scale.3 By definition, a public health approach is characterised and defined by its own emphasis on prevention and early intervention, primarily focusing on prioritising the needs of children and young people and addressing the social determinants of violence.4 This approach has been pioneered successfully, particularly in Glasgow, Scotland, as a leading model in applying community-based initiatives, including prevention and early intervention strategies which consider and prioritise the needs of children and young people and address the social determinants of violence.5 Implementing these strategies would also steer children and young people away from the youth justice system and set them up for a more optimistic future.6 In this context, taking a public health approach would involve introducing data-driven strategies and evidence-based programs, particularly with Indigenous and other vulnerable groups through participative and restorative approaches, as for example, with the Justice Reinvestment Project in Bourke in Western New South Wales.7 ii

Prevention and Early Intervention: An International Comparative Study

As part of a larger comparative study from which this article is derived, I employed a mixed-methods approach consisting of two separate processes; a quantitative analysis of online media content over a six-month period and a collection of qualitative data through twenty-five semi-structured interviews with practitioners, policymakers and academics within the youth justice sphere in Australia and the United Kingdom.8 Each qualitative semi-structured interview with participants was conducted at a place and time of mutual convenience for Australian participants; and via Skype or WhatsApp for UK participants. Using a thematic analysis, I coded and interpreted key quotes which emerged from the interview data into themes and categories which strongly referenced a ‘public health approach’ and how this model can be adopted properly and resourced accordingly. Therefore, the purpose of the international study was to provide a holistic understanding of how public health approaches are responding to the needs of children and young people involved in the criminal justice system.9

22

Hannah Klose, Re-Thinking Approaches to Youth Justice

Hannah Klose is currently a PhD Student and Graduate Teaching Associate within the Faculty of Arts (Criminology) at Monash University and has previously worked as a Research Assistant for the International Youth Justice Network. In 2019, she graduated with First Class Honours in Criminology from Monash University. To date, she has made submissions into Northern Ireland Legal Quarterly, the Youth Violence Commission, Australia and New Zealand Society of Criminology (ANZSOC), Current Issues in Criminal Justice and the Institute of Advanced Legal Studies.

1 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

2 Australian Human Rights Commission, Children’s Rights Report 2019: In Their Own Right (Report, 28 October 2019) 10.

3 Laura Jane Robertson, A Practice-Based Approach to Youth Justice: The Whole System Approach in Scotland (PhD Thesis, The University of Glasgow, 2017) 16–18 <http://theses.gla.ac.uk/8493/1/2017RobertsonPhD.pdf>. The approach this article will be proposing is an implementation of Scotland Whole System Approach (WSA) which aims to improve long-term outcomes for children and young people, by diverting them away from statutory measures: at 14.

4 World Health Organisation, World Report on Violence and Health (Report, 2002) 3.

5 Sarah Pepin, Sally Lipscombe and Grahame Allen, Public Health Model to Reduce Youth Violence, House of Commons Library (Debate Pack No CDP-2018-0274, 12 December 2018) 3.

6 Victorian Council of Social Service, Restoring Youth Justice: VCOSS Submission to the Inquiry into Youth Justice Centres (Report, March 2017) 6.

7 ‘Justice Reinvestment in Bourke’, Just Reinvest NSW (Web Page) <https://www.justreinvest.org.au/justice-reinvestment-in-bourke/>.

8 Hannah Klose, ‘Utilising a Public Health Model Approach to Respond to Youth Violence in Victoria’ (Research Summary Document, Monash University, 2019) 11 (‘Summary Document’).

9 Ibid 2.

10 Ibid 20.

11 Sheryl A Hemphill and Rachel Smith, Australian Research Alliance for Children & Youth, ‘Preventing Youth Violence: What Does and Doesn’t Work and Why?’ (Research Report, October 2010) 18 <https://www.aracy.org. au/publications-resources/command/download_file/id/122/filename/Preventing_Youth_ Violence_-_What_does_and_doesn%27t_ work_and_why.pdf>.

12 Helen Fatouros, ‘Is our youth justice system really broken?’ (Conference Paper, Castan Centre for Human Rights Law, 22 July 2016) 1 <http://youthlaw.asn.au/wp-content/ uploads/2016/07/Is-our-youth-justice-system-really-broken-VLA.pdf>.

13 See Michelle Black et al, ‘Learning across the UK: A Review of Public Health Systems and Policy Approaches to Early Child Development Since Political Devolution’ (2020) 42(2) Journal of Public Health 224.

14 Kate Fitz-Gibbon and Faith Gordon, ‘One Year on from Royal Commission Findings on Northern Territory Child Detention: What has Changed?’, The Conversation (Online, 19 November 2018) <https://theconversation. com/one-year-on-from-royal-commissionfindings-on-northern-territory-child-detention-what-has-changed-106993> ; Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Youth Justice Centres in Victoria (Final Report, March 2018) 112.

15 Ibid.

16 National Aboriginal & Torres Strait Islander Legal Services, The Crisis of Indigenous Youth Detained in Australia (Written Statement to UN Human Rights Council, 21 August 2017) 2.

17 Legal and Social Issues Committee, Parliament of Victoria, Inquiry into Youth Justice Centres in Victoria (Final Report, March 2018) 141.

18 Ibid 92–3.

19 Jesuit Social Services, ‘Foundations of Victoria’s youth justice system must be maintained’(24 May, 2017) <https://jss.org.au/ foundations-of-victorias-youth-justice-system-must-be-maintained/>.

20 Hannah Klose, ‘The Effectiveness of a Public Health Model Approach in Responding to Youth Violence in Victoria: An International Comparative Study’ (Honours Thesis, Monash University, 28 October 2019) 43 (‘Thesis’).

21 Julie White et al, Improving Educational Connection for Young People in Custody (Final Report, 21 June 2019) 16.

22 Victorian Ombudsman, ‘OPCAT in Victoria: A thematic investigation of practices related to solitary confinement of children and young people’ (Report, 5 September 2019) 131 <https://assets.ombudsman.vic. gov.au/assets/Reports/Parliamentary-Reports/1-PDF-Report-Files/OPCAT-in-Victoria-A-thematic-investigation-of-practices-related-to-solitary-_-September-2019. pdf?mtime=20191216123911>.

23 House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, Parliament of Australia, Doing Time, Time or Doing: Indigenous Youth in the Criminal Justice System (Report, June 2011) chs 2, 19.

24 Australian Institute of Health and Welfare, Parliament of Australia, Youth Detention Population in Australia (Bulletin No 145, 17 December 2018) 2 <https://www.aihw.gov. au/getmedia/55f8ff82-9091-420d-a75e37799af96943/aihw-juv-128-youth-detentionpopulation-in-Australia-2018-bulletin-145dec-2018.pdf.aspx?inline=true>.

When discussing the effectiveness of these approaches, one participant in Victoria confirmed that ‘a public health approach is one that looks at a more preventative, early response’.10 Hence, this point establishes that a public health approach is not just holistic and multidisciplinary, but it also involves ‘getting in early’ to prevent future violence.11 However, despite the growing awareness of the public health approach to youth violence and this model being on the table for decades now, the practitioners and policymakers interviewed held inconsistent definitions of the approach and seemed to lack concrete examples of how it would be applied in practice. This demonstrates that there is not only ambiguity in terms of specific steps to take in order to restore our justice system, but there is often a tendency for governments to often revert to a ‘law and order’ approach which will have alarming long term consequences for young people and the wider community.12 This article explores alternatives to criminalisation, and through an international comparative lens, examines the integration of a ‘public health approach’ which has been successful in Scotland and is well-supported in other parts of the United Kingdom to respond to youth involvement in violence.13 iii

Context of Australia’s Youth Justice System and Current Approaches

In the context of Australia’s youth justice system, there are serious concerns surrounding the treatment of children and young people in detention in Victoria and the Northern Territory.14 Over the past decade, children detained in the Northern Territory have been ‘mistreated, verbally abused, humiliated, isolated or left alone for long periods’, among other serious human rights breaches.15 These incidents prompted a response by the Australian government who convened a Royal Commission in 2017 into the Protection and Detention of Children in the Northern Territory.16 Youth detention centres at Parkville and Malmsbury in Victoria have also reported serious violations of human rights against young people which have subsequently led to low-level disruptive behaviour to highly-publicised riots and escapes.17 It is against this backdrop of considerable concern about the violations of the rights of children in the criminal justice system that this article explores appropriate responses that could be utilised to reduce and prevent young people’s involvement in violence.

In Victoria, the shift from a welfare orientation to a supervision and surveillance approach18 offers an interesting contextual case study as it is ultimately at-risk of eroding its ‘progressive’ juvenile justice system.19 A youth justice practitioner who was interviewed for my research project recognised that Victoria, for instance, ‘is really sitting at a punitive approach at the moment … recently youth justice has fallen under the Department of Justice, rather than Department of Health and Human Services’.20 The aim of my study was to view the protection and realisation of children’s rights and well-being through the lens and framework of public health, rather than justice.

An evident example of a ‘justice’ response is the Australian government’s plan to build a new youth detention centre in Cherry Creek in outer Melbourne, which is expected to be operational in 2021.21 Hence, rather than investing in approaches which will therapeutically address the needs of children and young people, child prisons are expanding across Australia.22 Additionally, the disproportionately high level of Indigenous children aged between 10 and 17 years within the youth justice system is a major challenge which confronts the Australian Government’s commitment to ‘Closing the Gap’. 23 As of December 2018, Indigenous children represent almost 59% of the children and young people who are placed into youth detention centres across Australia, which is nearly three in five. 24 To reduce this significant proportion of Indigenous children who are detained there needs to be sustained investment through co-creation and community participative processes in primary prevention in economically and socially disadvantaged communities. 25 Therefore, to prevent Indigenous children from coming into contact with the criminal justice system in the first place, there needs to be a complete and committed public health initiative, which must extend universally to marginalised communities. 26 iv

Re-Thinking Approaches: Practitioner Perspectives and Public Health Approaches in Scotland

Over the last two decades, a public health approach has been internationally recognised as an effective primary model in responding to and preventing children

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and young people’s involvement in violence.27 From a developmental and life course perspective, this approach is premised on the idea that children’s safety and wellbeing exist on a continuum and that the risk factors and the social determinants of youth violence are considered when providing these support services to vulnerable or ‘at-risk’ groups.28 A university academic from the United Kingdom acknowledged that a public health approach is ‘inclusive of all parts of society … it’s the bridge between our health, our police, our social care, the community and the children … it all works together’.29 This further supports the integration of a holistic approach which requires different governments and agencies to collaborate to achieve shared goals for children and young people, as well as the wider community.

In comparison to Australia and England, Scotland’s youth justice system promotes the welfare of children and young people by taking a ‘child-centred’ approach and successfully integrating the framework of the CRC.30 Established in 2005 by the Strathclyde Police, the Violence Reduction Unit in Glasgow (‘VRU’) is regarded as a highly progressive organisation which is invested in reducing and addressing the risk and protective factors of violence through a multi-agency approach.31 In responding to youth involvement in violence, this approach ultimately addresses four key components: the underlying factors of violence and why it occurs; the magnitude and scope of violence; ways to prevent violence; and finally, applying a range of interventions and determining the effectiveness of these approaches.32 Primarily modelled on a public health approach, the launch of Scotland’s VRU has triggered renewed public and policy debate to tackle serious violence throughout the rest of the United Kingdom, including England and Wales. While conducting fieldwork for my study, a participant from Glasgow, Scotland asserted that ‘a violence reduction unit in Scotland has very much drawn upon a public health perspective’.33 In comparison, an academic from Victoria, Australia insightfully maintained that ‘the Scottish model has been quite different to the rest of the UK … it’s a model that has always focussed on the needs of young people’.34 These quotes reflect the strong recommendations which have been proposed towards implementing public health approaches to address and prevent youth involvement in violence in Australia. Furthermore, the Scottish public health approach has prompted other countries, particularly the rest of the UK, to learn from Glasgow by tailoring their approach to meet the needs and challenges of both countries and move away from the traditional methods of punishment and criminalisation.35 Several participants also acknowledged the need to view children and young people coming into conflict with the law, through a ‘child-friendly’ lens.36 The National Framework for Protecting Australia’s Children (2009-2020) report identifies a public health approach to child wellbeing which considers the risks and vulnerabilities of children and young people, as well as the need for prevention and early intervention.37 Although the 10-year plan is due to lapse at the end of this year, it is evident that this initiative has been either neglected or poorly carried out by the government as it has not been adequately reflected in Parliament.38 To support this statement, a Victorian politician recognised that ‘if we were to take a public health approach, we would be dealing with those health issues … we would be recognising that we could provide early intervention … including wraparound services for the families’.39 When discussing the effectiveness of these wraparound services and support systems, a participant from the United Kingdom introduced the concept of a ‘risk and protective factor paradigm’,40 which suggests why certain groups of children and young people are more or less likely to become victims of crime. According to Haines and Case, this can be achieved by reducing potential risk factors, such as including social exclusion and poor parental supervision, and enhancing protective factors, including access to social support and educational services for children, young people and families.41 In response to this finding, another University academic from the United Kingdom recognised the importance of incorporating these contextual factors into youth justice policies at an international level: ‘I’d basically see a public health model as one that brings to the forefront the considerations of having social determinants … that the contact around the youth justice system is the reason for young people committing offences’.42 While it is true that contact with the youth justice system increases recidivism, compared to alternative non-justice approaches for children experiencing similar risks, it is also the case that most of the causes of youth violence are due to the social determinants, including family and community factors.43 The general consensus from participants, particularly those based in the

24

Hannah Klose, Re-Thinking Approaches to Youth Justice

25 Koorie Youth Council, Ngaga-dji (Hear Me): Young Voices Creating Change for Justice (Report, October 2018) 6 <https://static1. squarespace.com/static/5b7d09f775f9ee5c f0a54a07/t/5b860aff352f53267bc3486c/1535511527195/Ngaga-dji+report+August+2018.pdf>.

26 Australian Institute of Family Studies, Child Protection and Aboriginal and Torres Strait Islander children, (CFCA Resource Sheet, January 2020) < https://aifs.gov.au/cfca/sites/ default/files/publication-documents/2001_child_ protection_and_atsi_children.pdf> 12.

27 Daryl J Higgins, ‘A Public Health Approach to Enhancing Safe and Supportive Family Environments for Children’ [2015] (96) Family Matters 39, 40.

28 Ibid 39.

29 Klose, ‘Summary Document’ (n 8) 21.

30 Centre for Youth and Criminal Justice, A Guide to Youth Justice in Scotland: Policy, Practice and Legislation (Report, June 2018) 6–8 <https://strathprints.strath.ac.uk/68059/1/ CYCJ_2018_a_guide_to_youth_justice_in_scotland.pdf>.

31 Klose, ‘Summary Document’ (n 8) 5; Peden et al., Collaborative Approaches to Preventing Offending and Re-offending in Children (‘CAPRICORN’) (Report, July 2019) <https:// dera.ioe.ac.uk/33984/1/CAPRICORN_resource. pdf> 38.

32 Violence Reduction Unit, Violence is Preventable, Not Inevitable: The Story and Impact of the Scottish Violence Reduction Unit (Report, 2020) 7.

33 Klose, ‘Thesis’ (n 20) 45.

34 Ibid.

35 See Pepin, Lipscombe and Allen (n 5).

36 Klose, ‘Summary Document’ (n 8) 23.

37 Council of Australian Governments, Parliament of Australia, Protecting Children is Everyone’s Business: National Framework for Protecting Australia’s Children 2009-2020 (National Framework, 1 June 2009) 7–8 <https://www.dss.gov. au/sites/default/files/documents/child_protection_framework.pdf>.

38 Families Australia, Beyond 2020: Towards a Successor Plan for the National Framework for Protecting Australia’s Children 2009-2020 (Final Report, May 2020) 40 <https://familiesaustralia. org.au/wp-content/uploads/2020/08/BEYOND2020-FINAL-NATIONAL-CONSULT-REPORT28MAY2020-1.pdf>.

39 Klose, ‘Thesis’ (n 20) 44.

40 Klose, ‘Summary Document’ (n 8) 20.

41 Kevin Haines and Stephen Case, ‘The Rhetoric and Reality of the “Risk Factor Prevention Paradigm” Approach to Preventing and Reducing Youth Offending’ (2008) 8(1) Youth Justice 5.

42 Klose, ‘Thesis’ (n 20) 45.

43 World Health Organisation, Preventing Youth Violence: An Overview of the Evidence (Report, 30 July 2015) ch 2 <http://www.drugs.ie/ resourcesfiles/ResearchDocs/Global/WHO_ Youth_Violence.pdf>.

44 Pepin, Lipscombe and Allen (n 5) 3.

45 Ibid.

46 Penny Armytage and James Ogloff, Parliament of Victoria, Youth Justice Review and Strategy: Meeting Needs and Reducing Offending (Report, 7 August 2017) 12; Australian Institute of Health and Welfare 2019. Youth Justice in Australia 2017–18 (Report, 18 April 2019) 40.

United Kingdom, was that the public health approach in Glasgow, Scotland is a significant step in reducing and preventing violent crime. In December 2018, Leslie Evans, the Scottish Government Permanent Secretary described the approach as having ‘changed lives.’44 Between 2008 and 2018, Scotland’s homicide rate has halved and the number of hospital admissions due to assault with a sharp object has fallen in Glasgow by 62%.45 Hence, it is clear from the findings in my research that the need for a public health approach, as advocated in the United Kingdom, has relevance for Australia’s youth justice system. It is therefore absolutely vital that governments and policymakers rethink why they are locking children up and instead start to invest more funding into restorative and early intervention models, provide more options for diversion programs and to start to recognise that we simply cannot treat children the same way we treat adults. v

Recommendations for the Future

This article seeks to shed light on the distinct lack of contingency embedded in Australia’s current framework in response to children and young people’s involvement in violence, as well as prevention from further harm within the youth justice system. Many participants interviewed for this study agreed that the youth justice systems in Australia, England and Wales have been structured in a way that is failing to effectively consider the social determinants and factors linked to children and young people’s involvement in violence.46 Therefore, the views of children, young people and their advocates must be reflected in the policy framework and legislation so that their voices are heard and the protection of children’s rights is appropriately embedded within the criminal justice system. Overall, the aim should be to understand why children and young people are engaged in and are exposed to what is deemed as violent behaviour.

Furthermore, it was revealed in the interviews with professionals that public health responses are critical in addressing the individuals needs as well as proactively protecting and promoting the rights of children and young people.

Based on the emergence of these findings, this article has demonstrated the strong correlations existing between the contextual factors and the social determinants of health and children’s and young people’s involvement in violence. The qualitative data analysis in this study has provided a foundation of recommendations for future reforms, outlining that we must continue to critique and assess the relevancy of a public health approach to prevent youth violence in order to encourage more ‘child-friendly’ practices at national and international levels and learn from countries such as Scotland. The key next step would be to ensure that the voices and experiences of children and young people are listened to and at the heart of all future reforms in this area.

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Equal Shared Parental Responsibility and Children’s Rights in Australia Henry Kha and Kailee Cross*

* Dr Henry Kha is a Lecturer in Law at Macquarie University; Kailee Cross has a Bachelor of Laws (Honours) from Macquarie University and she is currently completing a Master of Research at Macquarie University.

1 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art 3(1) (‘CRC’).

2 Family Law Act 1975 (Cth) s 61DA(1) (‘FLA’).

3 Ibid s 61DA(2).

4 Philip Alston, ‘Foreword’ in Philip Alston and Glen Brennan (ed), The UN Children’s Convention and Australia (The Human Rights and Equal Opportunity Commission, 1991) iii.

5 John Tobin, ‘Judging the Judges: Are They Adopting the Rights Approach in Matters Involving Children?’ (2009) 33(2) Melbourne University Law Review 579, 585 (‘Judging the Judges’).

6 Paula Fass, ‘A Historical Context for the United Nations Convention on the Rights of the Child’ (2011) 633(1) The Annals of the American Academy of Political and Social Science 17, 17.

7 Didier Reynaert, Maria Bouverne-De-Bie and Stijn Vandevelde, ‘A Review of Children’s Rights Literature Since the Adoption of the United Nations Convention on the Rights of the Child’ (2009) 16(4) Childhood 518, 521.

8 CRC (n 1) art 3(1).

9 Ibid art 3(2).

10 Tobin, ‘Judging the Judges’ (n 5) 585–6.

11 Joseph Raz, The Morality of Freedom (Oxford University Press, 1986) 44.

12 Lisa Young, ‘Mature Minors and Parenting Disputes in Australia: Engaging with the Debate on Best Interests v Autonomy’ (2019) 42(4) UNSW Law Journal 1362, 1382.

13 Editorial, ‘A Lexicon for Research on International Children’s Rights in Troubled Times’ (2019) 27 International Journal of Children’s Rights 595, 596.

14 FLA (n 2) s 61DA.

i Introduction

The United Nations Convention on the Rights of the Child (‘CRC’) has made it unequivocally clear that promoting the best interests of the child should be a primary consideration in decision-making regarding the wellbeing of children.1 Australia has arguably gone further by making the best interests of the child as the paramount consideration under s 60CA of the Family Law Act 1975 (Cth) (‘FLA’).

However, the idea of promoting the best interests of the child is a contested field which varies based on culture and values. In Australia, the paramountcy principle is statutorily understood to mean that the best interests of the child are promoted by a legal presumption of equal shared parental responsibility. 2 The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence.3 This article shall explore the rise of parental responsibility in Australia, particularly the presumption of equal shared parental responsibility and children’s rights. ii

The Australian Ratification of the CRC

The CRC was adopted by the United Nations General Assembly on 20 November 1989 and was ratified by Australia on 17 December 1990.4 The drafting and adoption of the CRC demonstrated the emerging awareness and promotion of children’s rights.5 The CRC sets forth the rights and needs of children universally, promoting a commitment to both children’s wellbeing and rights.6 The CRC is quite comprehensive in scope, affording ‘provision, protection and participation’ for children’s rights.7 Article 3(1) of the CRC states, ‘[i]n all actions concerning children … the best interests of the child shall be a primary consideration’.8 This is accompanied by art 3(2) which stipulates that the rights and duties of parents, legal guardians or other responsible caregivers are to be taken into account in decision-making for children.9 The model of rights given to children recognises that children are vulnerable and developing in nature, but they are entitled to the right to have their interests protected by virtue of their humanity.10 These rights create obligations owed to children, typically by parents who become ‘duty bound to protect or promote certain interests of the right-holder’.11 Children should be protected from serious harm, but views formed by a mature minor should be respected.12 To enable children to exercise their own decision-making promotes not only the protection of children, but also their participation in asserting their rights.13 Decisions regarding parenting orders are made in the best interests of the child with parental responsibility starting from a procedural presumption of equality.14 The principles of the CRC have been adopted into Australian domestic legislation and given effect

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through the paramountcy principle found in pt VII of the FLA, as the CRC is not given separate consideration under Australian law.15 iii

The Rise of Parental Responsibility in Australia

The Family Law Reform Act 1995 (Cth) (‘FLRA’) introduced the concept of parental responsibility.16 Under the reform, children had the ‘right to know and be cared for by both parents’.17 One of the main aims was to stop children being viewed as property of their parents in heated custody disputes, thus juxtaposing the rights of children with the responsibilities of parents.18 In the years following the 1995 amendment, the evidence seemed to point towards little change in practice as the majority of child-rearing and caring work was still being undertaken by mothers.19 Although there was a shift towards recognising the legal status of both parents as caregivers, many fathers did not attempt to become significantly involved in their children’s lives. 20 The majority of parents who entered into shared parenting agreements did so without reference or even knowledge of the FLRA. 21 The 1995 amendment was also found to have been used by the non-resident parent to harass or control the resident parent because of the exploitation of continuing parental responsibility. 22 This concern has been articulated in recent years, whereby the legal presumption of equal shared parental responsibility leaves open almost ‘endless possibilities of conflict, disagreement, power and control’. 23 In 2003, the House of Representatives Standing Committee on Family and Community Affairs was formed to inquire into matters relating to parenting orders and arrangements. 24 The inquiry was in response to the widespread dissatisfaction with the family law process, particularly the negative effects that adversarialism had on families during litigation. 25 Despite data showing a significant increase in the number of parents who could not agree about the care of their children since the 1995 amendment, the movement towards shared parenting was desired. 26 The parents generally interested in shared parenting are the ones most likely to co-operate and least likely to use the family law system to solve their dispute.27 Conversely, the sort of parents that are likely to use the family law system are less likely to cooperate on shared parenting. 28 The Committee recommended a rebuttable presumption to be implemented in favour of equal shared parental responsibility. 29 This is reflected in s 61DA(1) of the FLA. They also recommended a presumption against equal shared parental responsibility in cases of ‘entrenched conflict, family violence, substance abuse or established child abuse, including sexual abuse’.30 This is reflected in s 61DA(2) of the FLA, with parents also able to rebut the application of the presumption.31 The Committee rejected a legal presumption for equal time because of concerns over a ‘one-size-fits-all’ model to the wide diversity of Australian families and their care arrangements.32 The incorrect assumption that equal time is derived from the presumption of equal shared parental responsibility has led to much of the contention surrounding the presumption.33 iv

Equal Shared Parental Responsibility in Australia

Introduced on 1 July 2006, the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) created a presumption of equal shared parental responsibility with the aim for both parents to be involved in their children’s lives after separation.34 The provisions were inserted into pt VII of the FLA, which provides the court with a wide and largely discretionary power to make orders about parental responsibility, the care and living arrangements of children, and any other parenting orders it deems relevant to a child’s welfare.35 There are often broader issues that may affect the realisation of children’s rights, particularly the interests of parents.36 There is potential for a winning mentality to result based on which parent is perceived to win the most rights held over the child.37 This is heightened by the adversarial process of the Australian legal system. With the introduction of the presumption, it has promoted the rhetoric of parental responsibility with parents at the centre.38 The Commonwealth Parliament’s intention behind the presumption was to ‘change the culture of family breakdown from litigation to cooperation’, with children having an undeniable right to know both parents.39 However, the amendments required parents to participate in often litigious family dispute resolution meetings to resolve disputes about the care of children.40 The amendments also sought changes aimed at protecting children from harm and family violence.41 Some scholars have

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Henry Kha and Kailee Cross, Equal Shared Parental Responsibility and Children’s Rights in Australia

15 Ralton v Ralton [2017] FamCAFC 182, [18].

16 Family Law Reform Act 1995 (Cth) pt VII div 2 (‘FLRA’).

17 FLA (n 2) s 60B(2)(a).

18 Rae Kaspiew et al, ‘Evaluation of the 2006 Family Law Reforms’ (Parliamentary Library, Australian Institute of Family Studies, December 2009) 8.

19 Helen Rhoades, Reg Graycar and Margaret Harrison, ‘The Family Law Reform Act 1995: The First Three Years’ (2001) 15(1) Australian Family Lawyer 1, 1.

20 Ibid.

21 Ibid 1–2.

22 Ibid 3.

23 Reg Graycar, ‘Family Law Reform in Australia, or Frozen Chooks Revisited Again?’

(2012) 13(1) Theoretical Inquiries in Law 241, 267.

24 House of Representatives Standing Committee on Family and Community Affairs, Parliament of Australia, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (Report, 29 December 2003) (‘Every Picture Tells a Story’).

25 Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (Report No 135, 1 March 2019) 68 (‘Family Law for the Future’).

26 Rhoades, Graycar and Harrison (n 19) 253.

27 Ibid.

28 Ibid.

29 Every Picture Tells a Story (n 24) 19.

30 Ibid 41.

31 It should be noted that s 60CC(2A) of the Family Law Act 1975 (Cth) was introduced to give greater weight to the protection of children from harm and family violence as a competing primary consideration in determining the child’s best interests over the benefit to the child of having a meaningful relationship with both parents: Family Law Act 1975 (Cth) s 60CC(2). This section was introduced as a result of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).

32 Helen Rhoades and Susan Boyd, ‘Reforming Custody Laws: A Comparative Study’ (2004) 18(2) International Journal of Law, Policy and the Family 119, 135.

33 Family Law for the Future (n 25) 172–6.

34 Richard Chisholm, ‘Making It Work: The Family Law Amendment (Shared Parental Responsibility) Act 2006’ (2007) 21 Australian Journal of Family Law 143, 143.

35 FLA (n 1) pt VII; Family Law for the Future (n 25) 158.

36 John Tobin, ‘Justifying Children’s Rights’ (2013) 21(3) The International Journal of Children’s Rights 395, 419.

37 Clare Huntington, ‘Rights Myopia in Child Welfare’ (2006) 53(3) UCLA Law Review 637, 664.

38 Aleardo Zanghellini, ‘Who is Entitled to Parental Responsibility: Biology, Caregiving, Intention and the Family Law Act 1975 (Cth)’ (2009) 35(1) Monash University Law Review 147, 152.

39 Commonwealth, Parliamentary Debates, Senate, 27 March 2006, 78 (Santo Santoro, Minister for Ageing) <https://parlinfo. aph.gov.au/parlInfo/search/display/ display.w3p;query=Id:%22chamber/ hansards/2006-03-27/0000%22> (‘Parliamentary Debates 27 March 2006’).

40 FLA (n 2) s 60I. 41 Parliamentary Debates 27 March 2006 (n 39) 79.

42 Lucy Daniel, ‘Australia’s Family Law Amendment (Shared Responsibility) Act 2006: A Policy Critique’ (2009) 31(2) Journal of Social Welfare and Family Law 147, 156; Carol Smart, ‘Equal Shares: Rights for Fathers or Recognition for Children’ (2004) 24(4) Critical Social Policy 484, 485.

43 Jonathan Crowe and Lisa Toohey, ‘From Good Intentions to Ethical Outcomes: The Paramountcy of Children’s Interests in the Family Law Act’ (2009) 33(2) Melbourne University Law Review 391, 393.

44 Ibid 392.

45 Goode v Goode [2006] FamCA 1346, [65].

46 Ibid.

47 (2017) 259 CLR 662.

48 Ibid 675.

49 Geoffrey Monaghan, ‘In the High Court: Parenting Orders, Children’s Views, Order in Favour of Strangers: Bondelmonte’ (2017) 7 Family Law Review 68, 72–3.

50 FLA (n 2) s 4AB. 51 Ibid s 67ZBB. 52 Family Law for the Future (n 25) 41 [1.37].

53 CRC (n 1) art 18(1).

54 Family Law for the Future (n 25) 172–6.

55 Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020 (Cth); Commonwealth, Parliamentary Debates, House of Representatives, 15 June 2020, 4320–2 (Graham Perrett) <https://www. aph.gov.au/Parliamentary_Business/ Hansard/Hansard_Display?bid=chamber/ hansardr/16283df1-dcd4-4919-bcd2-4f21c8ca3c60/&sid=0000>.

56 Family Law for the Future (n 25) 176.

57 Zoe Rathus, ‘Social Science or “Lego-Science”? Presumptions, Politics, Parenting and the New Family Law’ (2010) 10(2) Queensland University of Technology Law and Justice Journal 164, 176.

58 Kaspiew et al (n 18) 216.

expressed concerns over the idea of parents holding equal shares in children with the presumption having the potential to focus more on parents’ rights than warranted for under the legislation.42 The problem here is that there is too much focus on how much the interest of the parents should be taken into account when determining whether the presumption should apply equally. Instead, the focus should be about promoting the best interests of the child in having a meaningful relationship and spending significant time with both parents after separation in an appropriate way.

The FLA promotes the best interests of the child as the paramount consideration when judges exercise discretion in making parenting orders in Australia.43 According to s 60CA of the FLA, ‘a court must regard the best interests of the child as the paramount consideration’. The stronger expression of ‘the paramount consideration’ was chosen in the FLA rather than that of ‘a primary consideration’ found in the CRC. Australia has taken the view that the paramountcy principle in the CRC should be of chief importance.44 This is accentuated by s 60B(4) of the FLA, which states: ‘An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989’.

After the implementation of the presumption of equal shared parental responsibility in 2006, the Full Family Court of Australia ruled that the presumption should be applied, unless it would not be in the best interests of the child.45 The court would be required to consider how the child would spend equal time or substantial and significant time with each parent in applying the presumption according to s 65DAA of the FLA.46 In Bondelmonte v Bondelmonte,47 the High Court of Australia stated, ‘[t]he term “consider” imports an obligation to give proper, genuine and realistic consideration but this cannot affect or alter the terms of the provision so as to require a child’s views to be ascertained’.48 The best interest of the child continues to be the overriding consideration in Australia with a strong promotion of the child’s right to express his or her views.49 While it is important to be attentive to both parents being given an equal opportunity to make decisions, abusive or highly conflicted relationships must be approached with caution. The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) was introduced to protect children from the risk of child abuse or family violence. Family violence was given an expansive definition to include ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’.50 The court can make an order that it considers appropriate to protect the best interests of the child as a result of family violence.51 This helps to recognise that children’s rights and interests are paramount.

In 2019, the Australian Law Reform Commission recommended that the presumption of equal shared parental responsibility should be replaced with a presumption of joint decision-making about major long-term issues.52 This recommendation would be consistent with the changes in family law that have developed since 1995 on affirming shared parental responsibility. Moreover, it recognises the rights and duties of both parents to care and make decisions for their children under the CRC.53 Significantly, the recommendation would help remove confusion by getting rid of any misconceptions that parenting orders require the child to spend equal time with both parents.54 Such misunderstandings have partly contributed to Graham Perrett MP introducing a Bill in the House of Representatives on 15 June 2020 to abolish the presumption of equal shared parental responsibility from the FLA.55 While the concept of equal shared parental responsibility as a starting point should be maintained, it must be clarified to avoid its conflation with equal time.56 v Conclusion

The rhetoric of equal shared parental responsibility highlights two issues. The first is the issue of the Government being too influenced by political exigencies.

There is no doubt that these changes were made with the best interests of the child in mind, but such significant amendments appear to have been influenced by fathers’ rights groups and women’s advocates.57 This creates particular unease given that this legislative change is in relation to children, who are one of the most vulnerable groups in society. The second issue is that the rights-based rhetoric in the presumption of equal shared parental responsibility is centred on the parents rather than focusing on the best interests of the child.58 Consequently, there appears to be a disparity between the perceived rights of a parent and the legal reality that the best

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interests of the child are paramount in parenting orders. The introduction of equal shared parental responsibility was supposed to promote the childâ&#x20AC;&#x2122;s right to have a meaningful relationship with both parents, but judges and lawyers continue to have to educate litigant parents on focusing on what is in the best interests of their children.59 The issue here is that many parties confuse equal shared parental responsibility with equal time. A misunderstanding of the meaning of the presumption of equal shared parental responsibility and an assumption that it is about equal time with the child has led to an increasing focus on parentsâ&#x20AC;&#x2122; rights rather than advancing the best interests of the child.60

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59 Ibid.

60 Ibid 220.

Does Children Out of Sight Mean Children Out of Mind in the Australian Family Law System?

Leanne Francia*

* Dr Leanne Francia is a Research Officer at the University of the Sunshine Coast. Leanne has published and presented findings at conferences, both in Australia and overseas, in the areas of family violence, the Australian family law system, and parent/child adjustment following separation. Leanne has professional experience as a children’s counsellor, and is currently State Adviser for Child, Youth and Family for the National Council of Women Queensland.

1 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’).

2 Ibid arts 9(3), 19(1).

3 Family Law Act 1975 (Cth) (‘FLA’).

4 Within the objects and principles of pt VII of the FLA, s 60B(4) states that an additional object of pt VII is to give effect to the CRC. 5 Ibid ss 60CA, 65AA. 6 Ibid ss 60CC(2)(a)–(b).

7 CRC (n 1) arts 9, 12.

8 Freda Briggs and Elspeth McInnes, ‘Can Family Law Protect Young Children?’ (2012) 37(2) Children Australia 54, 55; Patricia Easteal, Lisa Young and Anna Carline, ‘Domestic Violence, Property, and Family Law in Australia’ (2018) 32(2) International Journal of Law, Policy and the Family 204, 205, quoting Thea Brown et al, Violence in Families: The Management of Child Abuse Allegations in Custody and Access Disputes before the Family Court of Australia (Report No 1, 1998).

9 Joe Harman, ‘The Prevalence of Allegations of Family Violence in Proceedings before the Federal Circuit Court of Australia’ (2017) 7(1) Family Law Review 3, 8.

10 Rae Kaspiew et al, Evaluation of the 2012 Family Violence Amendments (Synthesis Report, October 2015) 17 (‘Family Violence Amendments Evaluation’).

11 Ibid.

12 Ibid.

13 See generally Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (Final Report No 135, March 2019) (‘An Inquiry into the Family Law System’); Kaspiew et al, Family Violence Amendments Evaluation (n 10).

i Introduction

Human rights are inalienable and universal, and children are not excluded. This article discusses children’s rights under the United Nations Convention on the Rights of the Child (‘CRC’)1 within the context of the Australian family law system. Specifically, this article focuses on an issue that potentially hinders a child’s right to express their views, or to be an active agent in their own protection, where they are experiencing post-separation family violence—multiple jurisdictions.

Within the CRC, which Australia is a signatory to, a ‘child who is separated from one or both parents [has the right] to maintain personal relations and direct contact with both parents …’ and governments must take all appropriate measures to ‘protect the child from all forms of … violence, injury or abuse, neglect or negligent treatment … while in the care of parent(s) … or any other person who has the care of the child’. 2 The key legislation in Australian family law, the Family Law Act 1975 (Cth) (‘FLA’),3 reflects the relevant articles of the CRC in relation to making family law orders.4 In particular, ss 60CA and 65AA set out that the court must give paramount consideration to what is in a child’s best interests.5 How the court determines a child’s best interests is set out in s 60CC and includes consideration of the benefit to the child of maintaining a meaningful relationship with both parents and the need to protect the child from harms including family violence.6 Following parental separation, children have a right to participate in decisions relevant to their care, and to make their views known in administrative and judicial proceedings.7 Whilst the Family Court in Australia was never designed to be a child protection system, contemporary research evidences dealing with family violence matters to be its ‘core business’.8 The 2015–16 Family Violence Data Set reported that 76.12% of matters before the Federal Circuit Court of Australia involved allegations of family violence.9 Kaspiew et al reported that just over a quarter of parents nominating family dispute resolution/mediation as the main pathway had reported experiencing physical violence, compared with nearly four in ten who used lawyers, and more than five in ten using courts.10 Courts had the greatest proportion of parents with four or more problems in 2014 (38%), compared with lawyers (27%), and family dispute resolution/mediation (21%), with reports of emotional abuse even higher.11 In 2014, nearly half of court users reported having current safety concerns, compared with one-third of parents who used lawyers, and one-quarter of parents who used family dispute resolution/mediation.12 Although family violence is often an issue that is present, research suggests that family law professionals remain inadequately trained in responding to family violence.13 James and Ross surveyed 119 lawyers and conducted subsequent interviews with 32 lawyers.14 Within this sample, lawyers believed that more formal training in

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14 Colin James and Nicola Ross, ‘Did He Ever Hit You? Exploring the Attitudes of Lawyers in the Assessment of the Seriousness of Threats and Violent Histories in Domestic Violence Cases’ (2016) 30(3) Australian Journal of Family Law 205, 231.

15 Ibid.

16 Kaspiew et al, Family Violence Amendments Evaluation (n 10) 76.

17 Ibid xiii.

18 See Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).

19 Rae Kaspiew et al, Evaluation of the 2006 Family Law Reforms (Summary Report, December 2009) 2.

20 Goode v Goode (2006) 206 FLR 212.

21 Family Law Amendment (Family Violence and Cross-Examination of Parties) Act 2018 (Cth); Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth); FLA (n 3) s 67ZBB. 22 See, eg, An Inquiry into the Family Law System (n 13); Kaspiew et al, Family Violence Amendments Evaluation (n 10); Lesley Laing, ‘Secondary Victimization: Domestic Violence Survivors Navigating the Family Law System’ (2017) 23(11) Violence Against Women 1314; Renata Alexander, ‘Family Violence in Parenting Cases in Australia under the Family Law Act 1975 (Cth): The Journey So Far’ (2015) 29(3) International Journal of Law, Policy and the Family 313.

23 Kaspiew et al, Family Violence Amendments Evaluation (n 10) xii.

24 House of Representatives Standing Committee on Family and Community Affairs, Parliament of Australia, Every Picture Tells a Story: Inquiry into Child Custody Arrangements in the Event of Family Separation (Report, December 2003) 71; See also An Inquiry into the Family Law System (n 13); Australian Law Reform Commission, Family Violence: A National Legal Response (Final Report No 114, October 2010); Family Law Council, Families with Complex Needs and the Intersection of the Family and Child Protection System (Final Report, June 2016); Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (Report, July 2001); House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia A Better Family Law System to Support and Protect Those Affected by Family Violence (Report, December 2017); Productivity Commission, Access to Justice Arrangements (Inquiry Report No 72, 5 September 2014).

25 Richard Chisholm, Information-Sharing in Family Law and Child Protection: Enhancing Collaboration (Report, March 2013) 64, 114.

26 Justice Robert Benjamin, ‘Public Law Issues in a Private Law System: Child Protection and Family Law’ (2015) 5 Family Law Review 102, 103. See also Queensland Child Protection Commission of Inquiry, Taking Responsibility: A Roadmap for Queensland Child Protection (Report, June 2013).

27 Leanne Francia, Prudence Millear and Rachael Sharman, ‘Addressing Family Violence Post Separation: Mothers and Fathers’ Experiences from Australia’ (2019) 16(3) Journal of Child Custody 211, 222. See also Leanne Francia, Prudence Millear and Rachael Sharman, ‘Mothering: A Mode of Protecting Rather than Parenting in the Aftermath of Post Separation Family Violence in Australia’ (2020) 45(2) Children Australia 109; Australia’s National Research Organisation for Women’s Safety Limited, Domestic and Family Violence and Parenting: Mixed Method Insights into Impact and Support Needs (Final Report, June 2017).

risk assessment for family violence would be helpful, with some lawyers indicating that they needed a better understanding of best practice in family violence.15 As for parents reporting safety concerns, Kaspiew et al reported that parents in their sample tended to be less satisfied with professionals’ responses to safety concerns than family violence.16 Accordingly, reforms may not have translated into more parents considering that their concerns were dealt with appropriately.17 ii

Policy and Legislative Tensions

There has existed a protracted state of tension in Australian family law since major reforms were introduced in 2006 to the child support and family law systems.18 The overall policy objectives of the 2006 changes were to build strong healthy relationships, to encourage greater involvement of both parents in children’s lives, to protect children from abuse, to help parents agree rather than litigate what is best for their children, and to establish a highly visible point of entry as a doorway to other services.19 Within common law, the Full Court of the Family Court precedented the intent of the 2006 legislative amendments in favour of substantial involvement of both parents in their children’s lives. 20 Herein, the prioritisation of a child’s meaningful relationship with both parents remains at odds with ongoing concerns of family violence. Despite amendments to family law legislation since 2006, 21 empirical research and legal commentary continue to evidence concerns. 22 Kaspiew et al reported on the amendments’ limited legislative effects, finding that the rate of endorsement by family law system professionals of the proposition that adequate priority was accorded to the meaningful relationship consideration (87%) was twenty percentage points greater than that for the protection from harm consideration (67%). 23 iii

Mind the Gap

Implementation of children’s rights may be compounded by potential gaps or duplications within multiple jurisdictions. In Australia, matters involving separation, divorce, and related issues are dealt with primarily within a federal system, and matters involving child protection and family violence are dealt with primarily within state or territory systems. This uneven approach and interplay between multiple jurisdictions arguably create barriers to adequate investigation, disclosure and communication. There may be the assumption that issues are being dealt with, or should be dealt with, elsewhere in the federal, state or territory systems, when in reality they might not be. Blaming cross-jurisdictional gaps may lead to further disjuncture. This has been a long-standing concern in Australia: Often when a child protection authority is aware that matters are proceeding in the Family Court they will decide not to investigate, leaving the question to that court to decide on the issues. However, the Family Court is not resourced to investigate such matters. The children involved then fall through the jurisdictional gaps. 24 A lack of information sharing, collaboration or consideration of where matters are currently, or have been before courts in other jurisdictions, leaves children at risk and limits the opportunities for them to express their views. 25 Justice Robert Benjamin noted, ‘[s]tate authorities generally treat children who are being dealt with in family law proceedings as being protected in and by those systems’. 26 Research asserts that when children have the opportunity to speak to child protection services, if there are family court orders or proceedings in place, their concerns may not be investigated past an initial interview: So, from the initial complaint to children’s services, they didn’t even interview her until it was more than a year. If it had’ve being [sic] a stranger, or a guy at the garage, my child would have been looked at straight away. Yep, it wouldn’t have been a problem, and he would’ve been charged. He has got away with it. (Mother, 42 years) …

And once you have the Federal orders, as I know now, you’ve got nothing, you’ve got no State services, no police, no child protection, nothing because the Federal overrides the State. Once that is in place you are stuffed. It is so tragic, it is so bad (Mother, 44 years). 27

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Within my interviews with organisations, in this case, the National Child Protection Alliance, anecdotal cases provide further context as to the impact of this jurisdictional disjuncture. One example involved a child, 10 years of age, who was court ordered from the age of three to live with her father for five days every fortnight.

During these visits the father was physically and emotionally abusive towards her and her sibling. The child begged to speak to authorities and, once granted an interview, was advised by child protection services that they would not intervene due to there being Family Court orders in place, but they would notify the father that a report had been made against him. During the child’s later visits, this 10-yearold girl was taken, with her sibling, by the father to the local police station where a male police officer placed her in a police cell and closed the door, threatening that this was where she was going to end up if she did not obey her father. When the mother approached the police, the officer involved advised that this was normal police practice. When the mother shared that, just a fortnight before, the child had made a report to child protection, the police officer said he was under no obligation to check any reports in relation to the child or the father. When the mother spoke to child protection, child protection stated that there was no concern around either the father’s or the police’s behaviour.

A second example involved a young boy who was ordered to live with his father from the age of six. The child protection unit had substantiated that the father had sexually abused another child from his first marriage and was a violent man. At the age of 13, this young adolescent fled his father six times in a two-week period, going straight to police for help. The police forced him to return to his father each time (at one stage even putting him in handcuffs and placing him in a police car) without any investigation or checking of files and reports held by child protection services. Both these children, who are in their late teens, experience significant physical and mental health issues, and have struggled with friendships, completing their schooling, and substance misuse.

Although not specifically focused on family violence, research by Carson et al into the experiences within the Australian family law system of young people aged 10 to 17 years old reported that more than half of participants felt their views had either no or limited impact on the decision-making process. 28 These young people indicated that they wanted professionals to listen more effectively to their views and expressions, especially when they talked about their safety. Lastly, it is important to note that the latest Australian Law Reform Commission inquiry has recommended the closing of these jurisdictional gaps. 29 iv Conclusion

Following separation, the multiple jurisdictions and protective systems concerning children remain challenging and complex. Whilst ongoing legislative reforms and policy developments endeavour to tailor court processes to support children experiencing family violence, there remains a real risk that these children may spend their formative years growing up in a system that may not adequately address family violence, may not seek to identify or deal with perpetrators, or that may bind a child to orders they have little say in.30 There is real danger in assuming that issues are being dealt with, or should be dealt with elsewhere, when in reality they might or should not be. Children have rights that recognise their need for protection,31 and it is argued that children’s rights under the CRC may not be consistently implemented when children experience post-separation family violence.

Children, whether their parents are separated or not, have a right to grow up in an environment of happiness, love, belonging and understanding, and to ensure this, children need special safeguards, including legal protection. All children deserve to have access to professionals and services that not only understand and integrate current scientific research in order to respond effectively to allegations of family violence, but who are trained in family violence. Family law reform must continue to incorporate evidence-based frameworks that inform and support the development of better protection mechanisms and systems, and that recognise the rights of children to be active agents in their own protection.

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28 Rachel Carson et al, Children and Young People in Separated Families: Family Law System Experiences and Needs (Final Report, 2018) 30.

29 An Inquiry into the Family Law System (n 13) 15.

30 See Family Court of Australia, ‘The Lighthouse Project’ (Web Page, 20 August 2020) <http://www.familycourt.gov.au/wps/ wcm/connect/fcoaweb/family-law-matters/family-violence/lighthouse-project/ lighthouse-project>.

31 CRC (n 1) arts 3, 18–19.

The Child’s Voice in International Child Abduction Cases in Australia Michelle Fernando*

* Michelle Fernando is a Senior Lecturer in Law at the University of South Australia.

1 Hague Convention on the Civil Aspects of International Child Abduction opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983) (‘Hague Convention’).

2 Ibid art 1.

3 The Hague Convention equally applies to people who may not be parents, but nevertheless have ‘rights of custody’: at art 3.

4 Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 16(1) ‘Regulations’.

5 Ibid reg 16(1A).

6 Ibid reg 16(3).

i Introduction

The Hague Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’)1 is an important international instrument which aims to ensure that children who are wrongfully removed from their home country are returned promptly and that family laws in participating jurisdictions are respected.2 Parents living in Hague Convention countries whose children are brought to Australia by the other parent3 and retained here without permission are generally entitled to rely on the Hague Convention to secure the child’s return.

The summary nature of Hague proceedings means that the views and interests of individual children are not generally considered. The Hague Convention is premised upon parenting issues being determined in the home country once the child has been returned. Even if we accept the inherent proposition that it is generally in children’s best interests to be returned, how can children’s rights to express their views be accommodated?

This article explores the apparent tension between children’s right to be heard and Australia’s obligation to return children without considering their individual interests. I argue that hearing from children is not inconsistent with Australia’s obligations under the Hague Convention, and children must be given greater opportunities to voice their perspectives. ii

Australia’s Obligations under the Hague Convention

The principles of the Hague Convention are implemented in Australia by the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘the Australian regulations’). If an application is brought within one year of a child’s removal to, or retention in, Australia and a court is satisfied that the child’s removal or retention was wrongful, the court must make an order that the child be returned to their home country.4 The retention is wrongful if the child is under 16 years of age and habitually resided in a convention country immediately prior, and if the child’s removal to or retention in Australia breached a parent’s ‘rights of custody’.5 There are limited circumstances where a court may refuse to make a return order. These are: if the ‘left behind’ parent was not exercising parental rights, or consented or acquiesced to the child’s retention in Australia; if returning the child would subject them to a grave risk of harm or an intolerable situation; if the child objects to being returned (and is of sufficient age and maturity and satisfies a ‘strength of feeling’ test); or if returning the child would be contrary to Australia’s principles of human rights and fundamental freedoms.6 It is in deciding whether one of the exceptions to mandatory return applies that the interests and views of

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individual children may be considered. The exceptions reflect an acknowledgement that return might not always be in a child’s best interests.7 However, even if one or more of these exceptions exist, a court still has discretion to order that the child be returned.8 iii Relationship

between the Hague Convention and Article 12 of the Convention on the Rights of the Child

Article 12 of the United Nations Convention on the Rights of the Child (‘CRC’)9 states: 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Australia ratified the CRC in 1990,10 thereby undertaking to take all appropriate legislative, administrative and other measures to implement the rights contained therein.11 However, the Hague Convention does not expressly recognise a child’s right to participate12 and, on its face, children are only given an opportunity to be heard if one of the ‘exceptions’ is raised and the child’s views may be relevant to that determination (for example, if it is alleged that the child objects to being returned).13 The Australian regulations dictate that the child’s objection must show a ‘strength of feeling beyond the mere expression of a preference or of ordinary wishes’.14 Even then, the child’s views will only be taken into account if the court considers that the child is of sufficient age and maturity that it is appropriate to take account of their views.15 This contradicts art 12 of the CRC, which requires that all children’s views be taken into account, their age and maturity only relevant to deciding how much weight to attach to the views.16 There is an apparent tension between the summary nature of the Hague Convention and children’s right to express their views.17 The challenge is to ensure that children are given an opportunity to be heard18 without diluting the objects of the Hague Convention. In Australia, this task has generally not been managed well.

Even in cases where children’s views have been taken into account for the purposes of establishing the ‘children’s objection’ exception, the court has often prioritised the Hague Convention’s principles and ignored children’s right to be heard.

This is illustrated in the High Court judgment of RCB v The Honourable Justice Forrest (‘RCB’).19 An Australian mother living in Italy brought her four Italian daughters to Australia and refused to return them. 20 The mother alleged that the children, aged 14, 12, 9 and 8 years at the hearing, objected to returning. 21 The primary judge, Forrest J, received evidence of the children’s views through the written reports of two experts who had spoken with the children. 22 The children were not represented by a lawyer and were given no opportunity to express their views directly or otherwise participate in the proceedings. Forrest J rejected the ‘children’s objection’ exception because his Honour was not satisfied that the children’s objections showed a strength of feeling beyond the mere expression of a preference or of ordinary wishes, and he did not find that all of the children were of an age and maturity that the Court should take account of their views. 23 An order was made that the children be returned to Italy.

The matter was unsuccessfully appealed and, ultimately, the children (through a litigation guardian) made application to the High Court on the basis that Forrest J had not given them an opportunity to be represented, had failed to take their interests into account and had failed to afford them natural justice. 24 In dismissing the application, the High Court found that the children had been afforded natural justice and that their views had been appropriately heard and considered, despite them not having had legal representation or the opportunity to participate directly. 25 The plurality confirmed that the views and interests of a child may be relevant to one of the exceptions in reg 16(3), 26 and the information the court needs, to assess whether the ‘children’s objection’ exception is met, can be provided by a report from a family consultant (child welfare officer) who speaks with the child and reports as to the strength of the child’s views and their maturity. 27 The plurality

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7 Rhona Schuz, The Hague Child Abduction Convention: A Critical Analysis (Hart Publishing, 2013) 97 (‘The Hague Child Abduction Convention’).

8 Regulations (n 4) reg 16(5).

9 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’).

10 ‘Status of Treaties’, United Nations Treaty Collection (Web Page) <https://treaties. un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en>.

11 CRC (n 9) art 4.

12 Schuz, The Hague Child Abduction Convention (n 7) 317–18.

13 Ibid 373, Michelle Fernando and Nicola Ross, ‘Stifled Voices: Hearing Children’s Objections in Hague Child Abduction Convention Cases in Australia’ (2018) 32(1) International Journal of Law, Policy and the Family 93, 98. Children’s views may also be relevant to factual determinations such as the child’s place of habitual residence: Schuz, The Hague Child Abduction Convention (n 7) 373.

14 Regulations (n 4) reg 16(3)(c)(ii).

15 Ibid reg 16(3)(c)(iii).

16 Claire Fenton-Glynn, ‘Participation and Natural Justice: Children’s Rights and Interests in Hague Abduction Proceedings’ (2014) 9(1) Journal of Comparative Law 129, 131.

17 Schuz, The Hague Child Abduction Convention (n 7) 318–19.

18 I note that it is also the child’s right to not express a view and they must not be compelled to do so: Family Law Act 1975 (Cth) s 60CE (‘FLA’).

19 RCB v The Honourable Justice Forrest (2012) 247 CLR 304 (‘RCB’).

20 Ibid 309–10 [5] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

21 Department of Communities (Child Safety Services) & Garning [2011] FamCA 485 (23 June 2011) [6], [25].

22 Ibid [114].

23 Ibid [118], [121].

24 RCB (n19) 310 [5] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

25 Ibid 322–3 [45]–[49].

26 Ibid 315–16 [22]–[23].

27 Ibid 322 [44]–[45].

28 FLA (n 18) s 68L(3)(a).

29 RCB (n 19) 320 [36], 322–3 [47] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

30 See further discussion of this case in Fernando and Ross (n 13); Rhona Schuz, ‘Commentary on RCB as Litigation Guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest’ in Helen Stalford, Kathryn Hollingsworth and Stephen Gilmore (eds), Rewriting Children’s Rights Judgments: From Academic Vision to New Practice (Hart Publishing, 2017) 495.

31 Fenton-Glynn (n 16) 133.

32 See discussion in Schuz, The Hague Child Abduction Convention (n 7) 387.

33 See generally John Tobin, ‘“Judging the Judges”: Are They Adopting the Rights Approach in Matters Involving Children?’

(2009) 33(2) Melbourne University Law Review 579; Aoife Daly, Children’s Autonomy and the Courts: Beyond the Right to be Heard (Brill, 2018).

34 See Carol Smart, Amanda Wade and Bren Neale, ‘Objects of Concern: Children and Divorce’ (1999) 11(4) Child and Family Law Quarterly 365; Fenton-Glynn (n 16) 133.

35 Director-General, Department of Community Services v De Lewinski (1996) 131 FLR 1, 4 (‘De Lewinski’).

36 This aligns with the views of the Full Court in Murray v Director, Family Services (ACT) (1993) 116 FLR 321 and State Central Authority for Victoria v McCall (1994) 121 FLR 65.

37 De Lewinski (n 17) 5.

38 De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640.

39 Ibid 657.

40 Re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 (‘Re D’).

41 Ibid 642 [58], followed by the Court of Appeal in Re KP (A Child) (Abduction: Rights of Custody) [2014] WLR 4326, 4333 [23].

42 Re D (n 40) [59].

43 Council Regulation (EC) No 2201/2003 of 27 November 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility [2003] OJ L 338/1 art 11(2).

confirmed the requirement in the Family Law Act 1975 (Cth)28 that an independent children’s lawyer (‘ICL’) may only be appointed in Hague Convention matters in ‘exceptional circumstances’, and said that there were no circumstances before Forrest J which might properly have been characterised as ‘exceptional’. 29 The High Court took a very narrow view of children’s voices in Hague Convention proceedings. The judgment made no mention of a child’s right to express their views. It did not mention children’s rights at all. The language used suggested that children only need to be heard when an objection (or other exception in reg 16(3)) is raised, and the only purpose of hearing from children is to undertake the forensic exercise of determining whether the exception is met. Further, it was found that the information can be adequately conveyed by a third party who speaks with the child and reports to the court, along with their assessment of the strength of the objections and the child’s maturity. In finding that this case, which involved older children who were objecting to being returned, was not ‘exceptional’ to justify the appointment of an ICL, the judgment suggested that the threshold for ‘exceptional circumstances’ is high.30 Discounting or not listening to children’s views because they are not considered relevant to the court’s task clearly violates art 12 of the CRC, which gives children the right to express their views in ‘all matters’ affecting them. As FentonGlynn wrote, The principles of natural justice cannot be ignored simply because it would have made no substantive difference if they had not been observed … It is a measure of human dignity that we are able to be involved in decision-making concerning our lives, and children cannot be denied this.31 The failure to give children an opportunity to be heard in circumstances that involve upheaval of all aspects of daily life, separation from a parent and intractable parental conflict appears a gross injustice. Children have a right to be heard in all proceedings, and not just proceedings where one of the ‘exceptions’ is raised.32 A narrow approach to children’s views fails to consider children as autonomous rights-bearers33 and treats them as objects, rather than subjects of law.34 iv

A Children’s Rights Approach to the Hague Convention

There is nothing preventing Australian courts from ensuring that children are given opportunities to express their views in Hague matters. In the minority judgment of the Full Court in De Lewinski, Nicholson CJ (as he then was) said: I consider that the Court has an obligation to give the child an opportunity to be heard in an appropriate manner and that is a right of the child independent of the person opposing return… I consider that the Court’s responsibility to hear the child and, of its own motion if the question of an objection appears on the material, to seek a report, is also to be found in Article 12 of the [CRC].35 In that case, Nicholson CJ said that, in his view, art 12 was not inconsistent with the Hague Convention,36 but in fact complemented the requirement to ‘take account of children’s objections subject to their age and maturity’.37 Nicholson CJ was the minority judge but his comments were cited with approval by the High Court in a successful appeal;38 in particular, the plurality said, ‘the policy of the [Hague] Convention is not compromised by hearing what children have to say’.39 It was a differently constituted High Court which issued the later judgment in RCB, however there is nothing in RCB that conflicts with Nicholson CJ’s views about the importance of hearing from children.

A children’s rights approach to the Hague Convention is taken in other jurisdictions. In the United Kingdom, Baroness Hale in Re D40 said that there is a presumption that the child will be heard in every Hague Convention case (and not only when one of the exceptions is raised) unless it would be inappropriate to do so.41 ‘It follows that children should be heard far more frequently in Hague Convention cases than has been the practice hitherto’.42 The Brussels II bis Regulation, applicable in Europe, states that children must be given an opportunity to be heard in the proceedings unless this appears inappropriate having regard to the child’s age or maturity.43 In South Africa, s 278(3) of the Children’s Act 2005 (South Africa) states that the

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court must afford to the child the ‘opportunity to raise an objection to being returned to their home country’ and, in doing so, ‘must give due weight to that objection’, taking into account the child’s age and maturity.

At its 6th meeting in June 2011, the Special Commission on the Practical Operation of the 1980 and 1996 Hague Conventions welcomed the ‘overwhelming support for giving children, in accordance with their age and maturity, an opportunity to be heard in return proceedings … independently of whether an [exception] has been raised.’44 It is possible to give children a voice, whilst still ensuring that the principles of the Hague Convention are upheld. Hearing from children can include commissioning a report from a child welfare expert to ascertain and include the child’s views, and ensuring that the child’s interests are represented by a lawyer.46 This would require a repeal of the legislative requirement that ICLs be appointed only in ‘exceptional circumstances’, or a willingness for judges to more readily accept that circumstances are ‘exceptional’. Although not common in Australia, it is also within a judge’s discretion to meet with a child directly to hear their views.47 v Conclusion

Abducted children interviewed by Taylor and Freeman in 2017 expressed that children need to be heard and use their own voices, and that courts need to understand that Hague Convention proceedings are a defining moment in a child’s life.48 It may be difficult to navigate the tension between children’s right to be heard and the principles of the Hague Convention. However, this difficulty does not create an exception to the requirement to listen to children. We must find ways to uphold the principles of the Hague Convention while acknowledging children’s autonomy and their right to be heard.

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44 Special Commission on the Practical Operation of the 1980 and 1996 Hague Conventions, ‘Conclusions and Recommendations’ (Conference Paper, Hague Conference on Private International Law, 1–10 June 2011) 7 [50] <https://assets.hcch.net/upload/wop/ concl28sc6_e.pdf>.

45 Trynie Boezaart, ‘Listening to the Child’s Objection’ [2013] 3 New Zealand Law Review 357, 365.

46 Victoria Bennett, ‘A Better Place for the Child in Return Proceedings under the 1980 Convention: A Perspective from Australia’ (2018) 12 (Summer–Fall) The Judges’ Newsletter on International Child Protection 20, 21.

47 Fernando and Ross (n 13) 100. For discussion of the ways children’s voices can be heard in Hague Convention proceedings and the potential advantages and disadvantages of each, see Fernando and Ross (n 13) 99–105.

48 Nicola Taylor and Marilyn Freeman, ‘Outcomes for Objecting Children under the 1980 Convention’ (2018) 12 (Summer–Fall) The Judges’ Newsletter on International Child Protection 8, 11.

Children’s Right to Know Their (Legal) Parents

Richard Chisholm

1 See, eg, S Besson, ‘Enforcing the Child’s Right to Know her Origins: Contrasting Approaches under the Convention on the Rights of the Child and the European Convention on Human Rights’ (2007) 21 International Journal of Law, Policy and the Family 137.

2 See, eg, Adoption Act 2000 (NSW) ch 8.

3 See, eg, Family Law Act 1975 (Cth) pt VII div 2.

4 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’).

5 Family Law Act 1975 (Cth) s 61B. The original Act referred to ‘guardianship’ in s 61, but the term was replaced by the Family Law Reform Act 1995 (Cth) No. 167 of 1995, s 31.

6 CRC (n 4) art 7.1.

7 Ibid art 8.1.

8 Ibid art 9.1.

i

Introduction

When people speak of children’s right to know their parentage, or their origins, they are likely to mean ensuring that children have the factual information that identifies their parents.1 Adopted children know who their legal parents are—their adoptive parents—but may not know the circumstances of their birth, and whose genes they carry. Our laws have responded to this problem, and certain legislation attempts to find an appropriate balance between the rights of the child and the biological parents to information about each other and the needs of the child, and of the adoptive parents, to allow the children to grow up in a secure family setting.2 Whether it does so satisfactorily is outside the scope of this article.

Children born through artificial means, which may involve donated sperm and/or donated ova, can also have this problem: the children may not be able to discover their genetic identity and the circumstances of their birth.

But, surprisingly, they can also have a different sort of problem. In some circumstances, even if all the facts are known, there may be doubt about who their legal ‘parents’ are. This matters because law gives the legal parents general responsibility for the care of children and the advancement of their interests.3 This problem is the subject of the present article. ii

Do Children Have a Right to Legally Recognised Parents?

Under the United Nations Convention on the Rights of the Child There is much in the United Nations Convention on the Rights of the Child (‘CRC’)4 about the rights of children and their parents. But does the CRC say that children have a right to have parents—that is, a right to have people designated by the law as their parents, having the bundle of rights, powers and responsibilities that parents normally have? In this context, ‘parent’ refers to a person who has in law the bundle of rights and obligations that we used to call ‘guardianship’ and now call ‘parental responsibility’.5 Is there such a right under the CRC? Its provisions include the following: • ‘The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. [sic] as far as possible, the right to know and be cared for by his or her parents’.6 • States Parties must respect ‘the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference’.7 • A child ‘shall not be separated from his or her parents against their will, except when … such separation is necessary for the best interests of the child’.8

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9 Ibid art 9.3.

10 Ibid art 18.1-2.

11 The CRC does sometimes refer to parents or guardians, and more elaborately to ‘parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child’: at ibid art 5. Cf art 9, quoted above, which squarely focuses on parents.

12 This is the admirably succinct definition used in Family Law Act, SBC 2011, c 25, s 20(1).

13 See B v J (1996) 135 FLR 472, 478 (Fogarty J).

14 See, eg, Artificial Conception Act 1984 (NSW) s 6(1).

15 Status of Children Act 1996 (NSW); Status of Children Act 1974 (Vic); Status of Children Act 1978 (Qld); Artificial Conception Act 1985 (WA); Family Relationships Act 1975 (SA); Status of Children Act 1974 (Tas); Parentage Act 2004 (ACT); Status of Children Act 1978 (NT).

16 See, eg, Surrogacy Act 2010 (NSW) ss 8, 23(1).

17 See, eg, ibid ss 21–38.

18 See, eg, ibid s 39.

19 Status of Children Act 1996 (NSW) s 14; Status of Children Act 1974 (Vic) ss 15–16; Status of Children Act 1978 (Qld) s 23; Artificial Conception Act 1985 (WA) ss 4–7; Family Relationships Act 1975 (SA) ss 10B–10C; Status of Children Act 1974 (Tas) pt III; Parentage Act 2004 (ACT) ss 11(2)–(3).

20 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) sch 3, inserting ss 60H and 60HB. 21 Where a partnered woman has a child by artificial conception, s 60H(1) picks up a prescribed state or territory law providing that the child is a child of the woman and her partner.

22 Section 60H does not pick up state or territory laws (such as Status of Children Act 1996 (NSW) s14(3)) providing that a sperm donor is not a parent.

23 Bernieres v Dhopal (2017) 324 FLR 21, 33 [62] (Bryant CJ, Strickland and Ryan JJ).

24 See, eg, ibid. For a detailed discussion, see Richard Chisholm, ‘Who is a “Parent”? The Need for Review of Australian Laws’ Australian Journal of Familly Law (forthcoming).

25 Masson v Parsons (2019) 368 ALR 583 (‘Masson’).

26 Ibid 591–2 [26]–[27] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

27 Ibid 601–2 [53]–[54].

28 Ibid 602 [55].

29 Fiona Kelly and Hannah Robert, ‘Legal Parentage and Assisted Conception following the High Court’s Decision in Masson v Parsons’ (2019) 33(2) Australian Journal of Family Law 144; Ronli Sifris and Adiva Sifris, ‘Parentage, Surrogacy and the Perplexing State of Australian Law: A Missed Opportunity’ (2019) 27(2) Journal of Law and Medicine 369; Patrick Parkinson, ‘Artificial Conception and the Legal Definition of a “Parent”’ (2020) 48(2) Australian Bar Review 198; Felicity Bell ‘What Does it Mean to Be a Parent? High Court Delivers Clarity in Sperm Donor Case’ (2019) 58 (August) Law Society Journal 89.

30 Except for the reference to s 60H(2), the second column is based on Masson at 601–2 [54]–[55].

31 Status of Children Act 1996 (NSW) ss 14(1) (b), (1A)(b); Status of Children Act 1974 (Vic) ss 10E(2)(a), 13(1)(a), 14(1)(a), 15(1)(a), 16(1) (a); Status of Children Act 1978 (Qld) ss 19(2) (a), 19E(2)(a), 23(2)(a); Family Relationships Act 1975 (SA) s 10C; Artificial Conception Act 1985 (WA) s 5(1); Status of Children Act 1974 (Tas) s 10C(4); Parentage Act 2004 (ACT) s 11(2); ); Status of Children Act 1978 (NT) s 5C.

•

•

States Parties must respect ‘the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests’.9 Parents have ‘primary responsibility for the upbringing and development of the child’ and that the ‘best interests of the child will be their basic concern’, and States Parties ‘shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities …’.10

These Articles show that the CRC recognises that the implementation of many children’s rights depends on actions of the parents.11 Reading the CRC as a whole, in my view it is reasonable to say that it imposes an obligation on States Parties to specify by law who are the parents of all children in Australia, and if there are no parents, to specify some person or body who is responsible for carrying out the tasks of parents. iii

Who Are the Parents of Children Born through Artificial Conception and Surrogacy Arrangements under Australian Laws?

Artificial conception is used here to refer to any ‘method of conceiving a child other than by sexual intercourse’,12 and includes the use of donated sperm or ova, and the transfer of an embryo. Surrogacy in this article refers to an arrangement in which one person, or a couple (for convenience I will refer to ‘the commissioning couple’) seek to become parents of a child by having an arrangement in which a child is conceived by artificial conception, and another woman (the birth mother) gives birth to the child; genetic material (sperm and ova) may be contributed by either or both of the intending parents or by others. There can of course be surrogacy arrangements in which a child is conceived through sexual intercourse, but that situation does not create the difficulties discussed in this article.

Who are the ‘parents’ of these children? It’s certainly a puzzle.

In artificial conception, the biological father may be an anonymous sperm donor who has contributed sperm for money, or he may be a friend of the mother, and may or may not propose to be involved with, or known to, the child. The mother may or may not intend him to be involved in the family. Both may be ambivalent on the subject, and may change their intentions at the birth of the child, or perhaps later. Or the sperm may come from the husband or partner of the mother, the pair being unable to conceive through sexual intercourse. Or perhaps the mother has a female partner, and they intend to be the child’s parents, using a sperm donor.

In all these various situations, and others, the question can arise: is the sperm donor a father? Does it depend on the circumstances? Could it be that the child has no father? Two mothers?

In surrogacy, the birth mother may or may not also be the genetic mother— the child may have been conceived in her womb from another woman’s ovum.

Either way, she will probably not intend to act as a parent to the child, and may not intend to play a part in the child’s life. She may have a partner, married or otherwise, who will almost certainly not intend to play a part in the child’s life, even if he or she consents to the procedure. The sperm may come from one of the commissioning couple, or may be donated by another man, and the ovum may have been contributed by an anonymous donor, or by one of the commissioning couple.

Generally speaking, in these surrogate situations, one or both of the child’s biological parents (that is, the birth mother and any person other than a member of the commissioning couple who has contributed genetic material) have no plans to act as parents; one or both of the couple who do want to be parents may have no biological connection with the child. All parties will engage in the arrangement with the intention that the commissioning couple will act as parents for the child, and, ideally, they, and not the surrogate mother nor the third-party donors of genetic material will be recognised as such by the law. But will they?

The law has struggled to come to terms with these questions. It reflects a number of developments. The first two stem from agreements between the states and the Commonwealth. First, it was agreed in 1980 that when a married woman had a child through artificial conception, her husband, and not the sperm donor, would be the other parent, the child’s father.13 State and territory laws were made accordingly14 and were later adapted to include de facto partners and same-sex partners.15

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Second, agreement was reached on surrogacy. The practice of commercial surrogacy was prohibited.16 Altruistic surrogacy was permitted, but fairly strictly regulated: tthe courts were given powers to make parentage orders in some altruistic surrogacy situations,17 making the commissioning couple legal parents.18 What the state laws do say about parentage in some situations is set out in the tables below.19 In brief, however, we can say roughly that state legislation says that donors of genetic material are not parents, whatever the circumstances.

In artificial conception, assuming everybody consents to the procedure, the child’s parents will be the birth mother and her male or female partner. In surrogacy, the state laws do not specify who the parents are, although it seems that, as with artificial conception, the donors of genetic material are excluded from being parents. Where the surrogacy is altruistic, and therefore lawful, as we have seen in specified circumstances, the court has power to make orders transferring parentage to the commissioning couple.

With hindsight, it can be seen that both developments were incomplete.

The artificial conception legislation did not deal comprehensively with all the different situations that could arise. The surrogacy legislation provided for orders transferring parentage in some situations, but did not specify who were the child’s parents apart from such orders. So there were gaps—situations in which the state laws did not specify who the parents were.

Perhaps this problem stemmed from the way the law developed. The states presumably wanted to adhere to the specific matters that were agreed, and may not have had the same enthusiasm for creating a more complete and coherent treatment of parentage of these children, which would have required going beyond what had been agreed to. It is unfortunate that the agreements between the various jurisdictions were limited to particular matters, and did not go as far as setting out a coherent position on legal parenthood.

That was state and territory law; what of federal law, in particular, the Family Law Act 1975 (Cth) (‘Family Law Act’)?

The Family Law Act was amended in light of the developments in state and territory laws, 20 but the amendments were neither clear nor complete. One section, s 60H, dealt with artificial conception, but in an odd fashion: it made some substantive changes and picked up some, 21 but not all, 22 of the equivalent parentage provisions under state or territory laws. Curiously, its words could have applied also to surrogacy, which was dealt with in s 60HB. Courts’ attempts to apply s 60H to surrogacy were doomed to produce weird results, and only in 2017 did the Full Court of the Family Court of Australia give effect to what the legislature should have said more clearly—that s 60HB alone dealt with surrogacy, leaving s 60H to deal with artificial conception. 23 Section 60HB, however, did not deal with surrogacy satisfactorily, merely giving effect under the Family Law Act to any relevant parentage orders that had been made under state or territory laws.

The courts struggled to make sense of the mixture of incomplete and interacting provisions of the state and territory laws. In what now seems a bold bit of interpretation, they held that state and territory laws had effect under the Family Law Act except when there was an inconsistent federal provision.24 That approach did not produce a coherent answer to the parentage of all these children, but it did mean that the definition of ‘parent’ was consistent as between the federal and the state or territory law.

That achievement was destroyed by the High Court’s decision in Masson v Parsons (‘Masson’). 25 The High Court held that the word ‘parent’ in the Family Law Act had its ‘ordinary’ meaning, except where it was dealt with by a specific provision, such as ss 60H, 60HB, and the inclusion of adoptive parents in the s 4 definition of ‘parent’. 26 The High Court upheld a decision to the effect that the sperm donor in that case fell within the ordinary meaning of ‘parent’ and was therefore a parent of a child born to an unpartnered woman. 27 But that man had been very involved with the child and had intended to act as a parent, 28 and we don’t know in what other circumstances sperm donors might be ‘parents’. Commentators have attempted to glean more from the High Court judgment about the ordinary meaning of ‘parent’, but are not in agreement. 29 All we know for sure is that the ordinary meaning of ‘parent’ can include sperm donors in some circumstances.

The resulting legal position is clear in some situations but not in others, and there are regrettable differences between the states and territories on one hand and the Family Law Act on the other about who is a parent. The position relating to some situations can be summarised as follows:

42

Richard Chisholm, Children’s Right to Know Their (Legal) Parents

32 Status of Children Act 1996 (NSW) s 14(1)(a), Status of Children Act 1974 (Vic) s 10D(2)(a); Status of Children Act 1978 (Qld) s 19(2)(d)(i); Family Relationships Act 1975 (SA) s 10C(3); Status of Children Act 1974 (Tas) s 10C(1); Artificial Conception Act 1985 (WA) s 6(1); Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1978 (NT) s 5D(1)).

33 Status of Children Act 1996 (NSW) s 14(1A) (a); Status of Children Act 1974 (Vic) s 13(1) (b); Status of Children Act 1978 (Qld) s 19C(3); Family Relationships Act 1975 (SA) s 10C (3a); Status of Children Act 1974 (Tas) s 10C(1A); Artificial Conception Act 1985 (WA) s 6A(1); Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1978 (NT) s 5DA(1).

34 Status of Children Act 1996 (NSW) s 14(2); Status of Children Act 1974 (Vic) s 13(1)(c); Status of Children Act 1978 (Qld) s 19C(2); Family Relationships Act 1975 (SA) s 10C(4); Status of Children Act 1974 (Tas) s 10C(2); Artificial Conception Act 1985 (WA) s7(2); Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1978 (NT) s 5F. 35 Status of Children Act 1996 (NSW) s14(3); Status of Children Act 1974 (Vic) ss 10C(2)(b, 10D(2)(b), 10E(2)(d)(i), 13)(i)(c),14(1)(c); Status of Children Act 1978 (Qld) ss 19(2)(b),19E(2)(b) 23(2)(b); Family Relationships Act 1975 (SA) s 10C(2); Status of Children Act 1974 (Tas) s 10C(4); Artificial Conception Act 1985 (WA) s 7(1); Status of Children Act 1978 (NT) s 5E; Parentage Act 2004 (ACT) s 11(3).

36 Except for the reference to s 60H(2), the second column is based on Masson at 601–2 [54]–[55].

37 Status of Children Act 1996 (NSW) ss 14(1) (b), (1A)(b); Status of Children Act 1974 (Vic) ss 10E(2)(a), 13(1)(a), 14(1)(a), 15(1)(a), 16(1) (a); Status of Children Act 1978 (Qld) ss 19(2) (a), 19E(2)(a), 23(2)(a); Family Relationships Act 1975 (SA) s10C; Artificial Conception Act 1985 (WA) s5(1); Status of Children Act 1974 (Tas) s 10C(4); Parentage Act 2004 (ACT) s 11(2); ); Status of Children Act 1978 (NT) s 5C. 38 Status of Children Act 1996 (NSW) s 14(1)(a), Status of Children Act 1974 (Vic) s 10D(2)(a); Status of Children Act 1978 (Qld) s 19(2)(d)(i); Family Relationships Act 1975 (SA) s 10C(3); Status of Children Act 1974 (Tas) s 10C(1); Artificial Conception Act 1985 (WA) s 6(1); Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1978 (NT) s 5D(1).

39 Status of Children Act 1996 (NSW) s 14(1A) (a); Status of Children Act 1974 (Vic) s 13(1) (b); Status of Children Act 1978 (Qld) s 19C(3); Family Relationships Act 1975 (SA) s 10C (3a); Status of Children Act 1974 (Tas) s 10C(1A); Artificial Conception Act 1985 (WA) s 6A(1); Parentage Act 2004 (ACT) s 11(5); Status of Children Act 1978 (NT) s 5DA(1).

40 Status of Children Act 1996 (NSW) s 14(2); Status of Children Act 1974 (Vic) s 13(1)(c); Status of Children Act 1978 (Qld) s 19C(2); Family Relationships Act 1975 (SA) s 10C(4); Status of Children Act 1974 (Tas) s 10C(2); Artificial Conception Act 1985 (WA) s 7(2); Parentage Act 2004 (ACT) s 11(4); Status of Children Act 1978 (NT) s 5F. 41 Status of Children Act 1996 (NSW) s 14(3); Status of Children Act 1974 (Vic) ss 10C(2)(b, 10D(2)(b), 10E(2)(d)(i), 13)(i)(c),14(1)(c); Status of Children Act 1978 (Qld) ss 19(2)(b),19E(2)(b) 23(2)(b); Family Relationships Act 1975 (SA) s 10C(2); Status of Children Act 1974 (Tas) s 10C(4); Artificial Conception Act 1985 (WA) s 7(1); Status of Children Act 1978 (NT) s 5E; Parentage Act 2004 (ACT) s 11(3).

Table 1:

Artificial conception—birth mother has consenting partner30

Person

Parent (Family Law Act 1975 (Cth) (‘FLA’))?

Parent (State/Territory law)?

Birth mother

Yes (FLA s 60H(2))

Yes 31

Birth mother’s consenting male partner

If within ordinary meaning of ‘parent’

Yes 32

Birth mother’s consenting female partner

If within ordinary meaning of ‘parent’

Yes 33

Sperm donor

Possibly, depending on facts (Masson)

No 34

Ovum donor

If within ordinary meaning of ‘parent’

No 35

Table 2:

Surrogacy: commissioning couple do not provide genetic material36

Person

Parent (‘FLA’)?

Parent (State/Territory law)?

Birth mother

If within ordinary meaning of ‘parent’.

Yes 37

Commissioning couple, male or female

If within ordinary meaning of ‘parent’

Not specified

Birth mother’s consenting male partner

If within ordinary meaning of ‘parent’

Yes 38

Birth mother’s consenting female partner

If within ordinary meaning of ‘parent’.

Yes 39

Sperm donor

If within ordinary meaning of ‘parent’

No 40

Ovum donor

If within ordinary meaning of ‘parent’.

No 41

42 Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (Report No 135, March 2019) 428–9 [14.21]–[14.25].

43 There is a rich literature of issues of parentage in Australia and overseas. See, eg, Fiona Kelly, Hannah Robert and Jennifer Power, ‘Is There Still No Room for Two Mothers? Revisiting Lesbian Mother Litigation in Post-Reform Australian Family Law’ (2017) 31(1) Australian Journal of Family Law 1; Jenni Millbank, ‘Resolving the Dilemma of Legal Parentage for Australians Engaged in International Surrogacy’ (2013) 27(2) Australian Journal of Family Law 135; Douglas Nejaime, ‘The Nature of Parenthood’ (2017) 126(8) Yale Law Journal 2260; Andrew Bainham, ‘Arguments about Parentage’ (2008) 67(2) Cambridge Law Journal 322; Wanda Wiegers, ‘Assisted Conception and Equality of Familial Status in Parentage Law’ (2014) 28(2) Canadian Journal of Family Law 147; Naomi Cahn, ‘The New Art of Family: Connecting Assisted Reproductive Technologies and Identity Rights’ [2018] (4) University of Illinois Law Review 1443.

iv

Conclusions

While opinions differ somewhat in the interpretation of the legislation, and of the High Court’s Masson decision, all commentators seem to agree that the law in Australia is a mess—it is unclear in some situations, and in others, the child’s ‘parents’ under state laws will not be the ‘parents’ under the Family Law Act. Not surprisingly, various bodies have called for the law to be clarified—most recently, the Australian Law Reform Commission recommended that work be done to draft special Commonwealth legislation defining ‘parent’ for the purpose of Commonwealth laws.42 Fixing this part of the law is well overdue. Among its manifest faults, in my view it fails to comply with Australia’s obligations under the CRC by failing to specify who are the child’s legal parents in a number of situations. It will not be easy,43 but it should be done.

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Overseas Compensated Surrogacy Arrangements and the Family Court of Australia What about the Children?

Adiva Sifris*

i Introduction

Throughout Australia (save for the Northern Territory) legislation has been introduced recognising and regulating altruistic surrogacy arrangements and prohibiting compensated surrogacy arrangements.1 In three jurisdictions—the Australian Capital Territory, New South Wales, and Queensland—extraterritorial prohibitions placed on these arrangements make entering into an overseas compensated surrogacy arrangement an offence. 2 Nevertheless, couples who are desperate to raise children are entering into overseas compensated surrogacy arrangements. In circumstances where one or both of the couple are biologically related to the child, ‘citizenship by descent’ allows them to return with the child to live in Australia.3 While the regulation of surrogacy arrangements and legal parentage of children fall within the legislative powers of the states and territories, the determination of parentage for Commonwealth purposes is regulated through the Family Law Act 1975 (Cth) (‘FLA’). As compensated surrogacy arrangements are not recognised at a state or territory level and thus provisions transferring parentage from the surrogate to the intended parents are limited to altruistic surrogate arrangements, it is generally accepted that the provisions in the FLA recognising the transfer of legal parentage are confined to altruistic surrogacy arrangements and exclude compensated surrogacy arrangements.4 The question then arises: who are the legal parents of children born through compensated surrogacy arrangements? ii

The Full Court of the Family Court Has Its Say

Prior to the decision of Bernieres v Dhopal (‘Bernieres’),5 primary judges had adopted various approaches to this issue. In some instances, the intending biological father was declared a legal parent,6 in others, orders were made for the intending parents to have parental responsibility,7 and in still others, the matter was referred to the Director of Public Prosecutions.8 Mr and Ms Bernieres were a married couple who had entered into a compensated surrogacy arrangement in India. A child born as a result of this arrangement was conceived using Mr Bernieres’ sperm and the egg of an anonymous donor.

The child was granted Australian Citizenship by descent and issued with an Australian passport. The Bernieres’ applied to the Family Court for declarations of parentage.

The trial judge refused to make such an order and instead made orders for the parties to have parental responsibility for the child.9 Significantly, whilst making these orders, Berman J recognised the unsatisfactory predicament for all parties concerned and flagged ‘the clear need for … legislative change’.10

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* Dr Adiva Sifris is an Associate Professor in the Faculty of Law at Monash University and Director of Clinical Units in the Faculty of Law. She researches and teaches across all areas of family law, family violence and legal education.

1 Parentage Act 2004 (ACT) s 41; Surrogacy Act 2010 (NSW) s 8; Surrogacy Act 2010 (Qld) s 56; Surrogacy Act 2019 (SA) s 11; Surrogacy Act 2012 (Tas) s 40; Assisted Reproductive Treatment Act 2008 (Vic) s 44(1); Surrogacy Act 2008 (WA) s 8. For a detailed description and comparison of the legislation in the various states and the Australian Capital Territory. See Ronli Sifris, Karinne Ludlow and Adiva Sifris ‘Commercial Surrogacy: What Role for Law in Australia?’

(2015) 23(2) Journal of Law and Medicine 275.

2 Parentage Act 2004 (ACT) s 45; Surrogacy Act 2010 (NSW) s 11; Surrogacy Act 2010 (Qld) s 54(b).

3 See Australian Government Department of Home Affairs, ‘International Surrogacy Arrangements’, Immigration and Citizenship (Web Page, 5 March 2020) <https://immi.homeaffairs.gov.au/citizenship/become-a-citizen/by-descent/ international-surrogacy-arrangements>.

4 See, eg, Ellison v Karnchanit [2012] FamCA 602; Bernieres v Dhopal [2017] FamCAFC 180 (‘Bernieres’).

5 Bernieres (n 4).

6 See Green-Wilson v Bishop [2014] FamCA 1031.

7 See Mason v Mason [2013] FamCA 424.

8 See Dudley v Chedi [2011] FamCA 502.

9 See below for discussion on parental responsibility.

10 Bernieres (n 4) [147] (Berman J).

11 For a detailed discussion of this case see Ronli Sifris and Adiva Sifris, ‘Parentage, Surrogacy and the Perplexing State of Australian Law: A Missed Opportunity’ (2019) 27(2) Journal of Law and Medicine 369.

12 [2016] FCWA 17, [365] (Thackray CJ).

13 It should be noted that there have been instances where where orders have been made registering Court Orders made in the USA naming the intended parents as the parents: see Sigley v Sigley [2018] FamCA 3 (Forrest J). Conversely, there have been instances where the court has refused to make such orders: see Allan v Peters [2018] FamCA 1063; Rose [2018] FamCA 978 (Carew J).

14 See Rebecca Puddy, ‘Commercial Surrogacy Debated as UN Envoy Prepares Final Report on the Rights of the Child’, ABC News (online, 29 June 2019) <https://www. abc.net.au/news/2019-07-29/push-to-simplify-international-commercial-surrogacy/11303164?nw=0>.

15 Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953).

See Mennesson v France [2014] III Eur Court HR 255; Labassee v France (European Court of Human Rights, Chamber, Application No 65941/11, 26 June 2014); Foulon and Bouvet v France (European Court of Human Rights, Chamber, Application Nos 9063/14 and 10410/14, 21 July 2016).

16 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’).

17 CRC (n 16) art 35; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, opened for signature 25 May 2000, 2171 UNTS 227 (entered into force 18 January 2002) art 1 (‘Optional Protocol’).

Article 2(a) of the Optional Protocol states: ‘Sale of children means any act or transaction whereby a child is transferred by any person or group of persons to another for remuneration or any other consideration.’

18 See, eg, John Tobin, ‘To Prohibit or to Permit: What is the (Human) Rights Response to the Practice of International Commercial Surrogacy?’ (2014) 63(2) International and Comparative Law Quarterly 317, 335–338. Cf Jason KM Hanna, ‘Revisiting Child-based Objections to Commercial Surrogacy’ (2010) 24(7) Bioethics 341; Paula Gerber and Katie O’Byrne, ’Souls in the House of Tomorrow: The Rights of Children Born via Surrogacy’ in Paula Gerber and Katie O’Byrne (eds), Surrogacy, Law and Human Rights (Ashgate, 2015) 81.

19 CRC (n 16) art 3(1). Other relevant articles in the CRC include: art 3(2) protection from harm; art 7 the right to know and be cared for by his or her parents; art 5 the importance of family; art 10 separation from parents; and art 18 role of family in child’s upbringing.

20 See Samantha Besson, ‘The Principle of Non-Discrimination in the Convention on the Rights of the Child’ (2005) 13(4) The International Journal of Children’s Rights 433.

21 Affidavit of Sadie Rose Epstein, Sworn 19 March 2005 at paras 15 and 16. Applicant’s factum Rutherford v Deputy Registrar General for the Province of Ontario, Ontario Superior Court of Justice, Family Court, File Number 05-FA-13357 which is on file with the author. Referred to in AA v BB (2007) DLR (4th) 519 [15].

On appeal to the Full Court of the Family Court this order was confirmed.

The reasoning of the Full Court in reaching this conclusion is beyond the scope of this article, but the reality is that following the decision of the Full Court in Bernieres, avenues for establishing legal parentage of children born through compensated surrogacy arrangements appear to be closed. Applying to the Family Court for orders for parental responsibility appear to be the only remaining option for intended parents of children born via these arrangements.11 If the intending parents are not recognised as the legal parents of this child, the question then arises: who are the legal parents of this child? In some instances, such as Farnell v Chanbua12 (decided prior to Bernieres), Thackray CJ, relying on Western Australian legislation, decided that the surrogate and her partner were the legal parents of the child. However, in Bernieres, the Court was not prepared to fill the legislative vacuum and orders were made for parental responsibility, essentially leaving the child ‘parentless’.13 Realistically, the intention of the parties when entering into a surrogacy arrangement is to divest the surrogate (and her partner if she has one) of the responsibility of parentage and to bestow these responsibilities on the intending parents. This brings us to our next question: why is legal parentage important? iii

What about the Children? a Children’s Rights Issue

According to Stephen Page, up to 250 Australian children are born through overseas compensated surrogacy arrangements each year.14 The European Court of Human Rights has expressed its disapproval of States failure to recognise the legal relationship between children born through international surrogacy arrangements and their genetically related intended fathers as a violation of art 8 (Right to respect for private and family life) of the European Convention of Human Rights.15 However, discussion of compensated surrogacy from the perspective of the rights of the child invariably focuses on the United Nations Convention on the Rights of the Child (‘CRC’),16 particularly Art 35 of the CRC and Art 1 of its Optional Protocol which prohibit the sale of children.17 Whether compensated surrogacy arrangements fall within the definition of ‘sale of children’ is the subject of debate beyond the scope of this article.18 This contribution proceeds on the basis of the reality that an arrangement has been concluded, a child has been born, and the court is now faced with the unenviable task of determining the parentage of this child.

The CRC contains a number of other articles which are relevant to compensated surrogacy arrangements, for example, art 2(2) provides that State Parties shall take appropriate measures to ensure that children are protected from all forms of discrimination on the basis of the status of their parents, legal guardians or family members, and art 3(1) makes the best interests of the child ‘a primary consideration’.19 In a contribution such as this, it is possible to only provide a ‘birds eye view’ of the detriment and discrimination which these children suffer as a consequence of the law’s failure to recognise the intended parents as the legal parents of the child. In these circumstances the main perpetrator of discrimination against these children is the State, as legislative bodies have the power to directly or indirectly discriminate. In the case of compensated surrogacy arrangements, the discrimination is indirect in that it revolves around the failure to pass legislation recognising the legal parentage of these children, thus perpetuating discrimination against them in the form of unequal treatment. 20 Legal parentage provides public validation of the child’s family structure, a concept which transcends the practical consequences of orders for parental responsibility. The discrimination that is perpetrated against children when their functional parents are not recognised as legal parents is encapsulated in the following quote: I just want both my moms recognised as my moms. Most of my friends have not had to think about things like this – they take for granted that their parents are legally recognised as their parents. I would like my family to be recognised the same way as any other family, not treated differently because both my parents are women. 21 It is suggested, that although this quote deals with children raised in same-sex families, it is equally relevant to children born through compensated surrogacy arrangements. From the children’s rights perspective, it is hard to justify why a child born as a result of a compensated surrogacy arrangement should be treated differently to a child conceived through an altruistic surrogacy arrangement.

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Whilst the Family Court routinely makes orders for parental responsibility and such orders will allow the intended parents to raise the child, such orders are of limited effect. Most importantly, unlike legal parentage which lasts forever, orders for parental responsibility automatically terminate when a child turns 18. Consequently, unless legal parentage is recognised, inter-generational relationships and entitlements are forfeited. For example, in the law of succession, rights on intestacy and family provision rest on proof of kinship and will not apply to these children.

The FLA places emphasis on the importance of legal parentage. Various sections within the FLA relating to the exercise of the court’s discretion treat parents differently from non-parents, or effectively prioritise parents over others.

An obvious example is the ‘primary’ consideration in the best interest checklist (s 60CC(2) of the FLA), which places the parent-child relationship ahead of all other relationships. 22 From a fiscal perspective, the obligation of child support falls only on parents, 23 thus, in the event the intended parents separate the obligation of child support will not fall on either parent. 24 Hence, the failure of the law to recognise the intended parents as the legal parents of the child results in unsatisfactory and harmful outcomes for the child, discriminates against them, and is clearly not in their best interests. 25 The Family Law Council Report explicitly acknowledges that children born via compensated surrogacy arrangements ‘can face the prospect of being unable to secure appropriate and non-discriminatory legal status’. 26 iv

Some Light at the End of the Tunnel

It is suggested that the recent High Court decision of Masson v Parsons (‘Masson’)27 may provide a legitimate avenue for the intended parents to be recognised as the legal parents. In Masson, a single man provided semen to a single woman as a result of which a child was conceived through an assisted conception procedure.

When the child was born, the donor’s name was entered on the birth certificate as a parent and it was uncontroversial that over the years he had been actively involved in the life of the child providing financial and other support. The issue before the Court was whether the donor was the child’s legal parent. The state legislation is clear; the donor will not be regarded as the child’s legal parent. The federal FLA is equivocal on the issue and hence resulted in the High Court determining the matter. Whilst this case did not involve a compensated surrogacy arrangement but was rather concerned with the parentage of children born to a single woman, the case is relevant because of the High Court classification as to who should be regarded as a parent under the FLA. In sum, in concluding that the donor was the child’s legal parent, the plurality, adopted an approach to parentage which focuses on the common-sense meaning of the term. It ‘proceeds from the premise that “parent” is an ordinary English word which is to be taken as having its ordinary, accepted English meaning’.28 In a powerful joint judgment, the plurality asserted that unless otherwise provided, ‘there is no basis in the text, structure or purpose of the legislation to suppose that Parliament intended the word “parent” to have a[nother] meaning’. 29 In this case, the High Court focused on the intention of the parties at the time of conception and concluded that the donor could not be categorised as a mere ‘sperm donor’.

Emphasis was also placed on the fact that the donor had since the time of the child’s birth assumed the duties and responsibilities of a parent. Thus, according to the High Court in Masson, the starting point as to who is a parent under the FLA is that the word ‘parent’ should be given its natural and ordinary meaning.

The particular facts of the case and the active involvement of the donor in the life of the child, resulted in the High Court acknowledging the donor as a parent under the FLA. By analogy, it is arguable that in the context of compensated surrogacy arrangements, the intended parents should be regarded as the child’s legal parents.

The similarities are obvious, at the time of conception the parties’ clear intention is that the intended parents are the parents of the child. Moreover, when the child is born, they are the people who raise the child and function as the child’s parents.

The surrogate and her partner no longer form part of the child’s immediate family. v Conclusion

Over the years, the vexed issue of compensated surrogacy arrangements has attracted the attention not only from the judiciary but also the public and government.30

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Adiva Sifris, Overseas Compensated Surrogacy Arrangements and the Family Court of Australia

22 Family Law Act 1975 (Cth) s 60CC(2).

23 Child Support (Assessment) Act 1989 (Cth) ss 3, 5.

24 See definition of parent contained in s 5 of the Child Support (Assessment Act) 1989 (Cth) which defines a ‘parent’ in relation to a child born because of a surrogacy arrangement as including ‘a person who is a parent of the child under section 60HB of the Family Law Act 1975’.

25 For a detailed discussion of the various ways parenting orders differ from parentage orders, see Adiva Sifris, `The Family Courts and Parentage of Children Conceived through Overseas Commercial Surrogacy Arrangements: A Child-Centred Approach’ (2015) 23(2) Journal of Law and Medicine 396.

26 Family Law Council, Report on Parentage and the Family Law Act (Report, December 2013) 63.

27 (2019) 59 Fam LR 503 (‘Masson’).

28 Ibid 517 [44].

29 Ibid 511 [26].

30 See Bridget Brennan, ‘Commercial Surrogacy should be Legalised, Family Court Chief Justice Bryant says’, ABC News (online, 18 April 2015) <www.abc.net.au/ news/2015-04-18/commercial-surrogacy-should-be-legalised-family-court-justice/6402924>.

31 Family Law Council, Report on Parentage and the Family Law Act (Report, December 2013); House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, Surrogacy Matters: Inquiry into the Regulatory and Legislative Aspects of International and Domestic Surrogacy Arrangements (Report, April 2016); Australian Government, Australian Government Response to the Recommendations of the House of Representatives Standing Committee on Social Policy and Legal Affairs Surrogacy Matters (Report, November 2018).

32 George Brandis, ‘Terms of Reference’, Australian Law Reform Commission (Web Page, 27 September 2017) < https://www.alrc.gov.au/inquiry/ review-of-the-family-law-system/ terms-of-reference-21/>.

33 Australian Law Reform Commission, Family Law for the Future—An Inquiry into the Family Law System (Final Report No 135, March 2019) 428 [14.21].

34 Maud De Boer-Buquicchio, Statement by the Special Rapporteur on the Sale and Sexual Exploitation of Children, including Child Prostitution, Child Pornography and other Sexual Abuse Material, UN GAOR, 3rd Comm, 74th sess, Agenda Items 66(a), (b) (8 October 2019).

In an attempt to resolve the parentage of the these children and other associated issues, a number of Government Reports have been commissioned.31 Most recently, in September 2017 the Australian Law Reform Commission received terms of reference to conduct a comprehensive review into the Australian family law system.32 Issues relating to surrogacy were specifically included in the terms of reference. Disappointingly, the Final Report released in March 2019 conceded the complexity of determining the parentage of children born through surrogacy arrangements and unhelpfully recommended that provisions defining parentage of these children be removed to a separate Commonwealth Parentage Act.33 This means that this unsatisfactory situation continues to exist, the functional parents of these children must settle for orders for parental responsibility rather than legal parentage, and significantly these children are discriminated against and their best interests ignored.

In a recent statement introducing the 2019 Report on the sale and sexual exploitation of children, including child prostitution, child pornography and other child sexual abuse material, Special Rapporteur Ms. Maud De Boer-Buquicchio stated as follows: The international and national regulatory vacuum, as well as the existing disparity in relation to international surrogacy arrangements often leaves children born through surrogacy vulnerable to breaches of their fundamental rights. …. I have therefore recommended strict regulation and oversight mechanisms to prevent any instances of sale and exploitation of children in the context of surrogacy. If not properly regulated, surrogacy arrangements risk compromising the fundamental rights of the child to human dignity, the right to identify, including nationality, access to origins and the enjoyment of family life.34 As evidenced in this quote, if not properly regulated, compensated surrogacy arrangements can result in the exploitation of the most vulnerable members of society: our children. Consequently, those seeking to enter into these arrangements should be discouraged from venturing overseas, but an alternative must be provided on our home soil. The time is ripe for Australia to act and to introduce legislation regulating these arrangements and encouraging those who are desperate to achieve parentage to do so, but under a highly regulated domestic structure. A system that takes into account the rights of the donor/s (if applicable), the rights of the surrogate, the rights and duties of the intended parents, but most importantly the rights of the children.

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‘Please Stop Australians Coming Here’ Orphanage Tourism, Child Rights and the Australian Response

Kathryn E van Doore*

* Dr Kathryn (Kate) E. van Doore is an international child rights lawyer and an academic at Griffith Law School, Australia. She currently researches the intersections of child rights, institituionalisation and human trafficking.

1 Linda Reynolds, ‘Voluntourism’ (Speech, Senate, Parliament of Australia, 2 March 2016).

2 Ibid.

3 Linda Reynolds, ‘Australia continues to lead the way against orphanage tourism’ (Media Release, Commonwealth, 1 March 2018) <https://www.lindareynolds.com.au/australia-continues-lead-way-orphanage-tourism/>.

4 Raweewan Proyrungroj, ‘Orphan Volunteer Tourism in Thailand: Volunteer Tourists’ Motivations and On-Site Experiences’ (2017) 41(5) Journal of Hospitality & Tourism Research 560, 561.

5 Tess Guiney, ‘The Political Economy of Orphanage Tourism in Cambodia’ (2015) 15(2) Tourist Studies 132, 133.

6 P Jane Reas, ‘“Children That Are Cute Enough to Eat”: The Commodification of Children in Volunteering Vacations to Orphanages and Childcare Establishments in Siem Reap, Cambodia’ (2020) 20(2–3) Tourism, Culture and Communication 83 (‘Children That Are Cute Enough to Eat’).

7 Kristen E Cheney and Karen Smith Rotabi, ‘Addicted to Orphans: How the Global Orphan Industrial Complex Jeopardizes Local Child Protection Systems’ in Tracey Skelton, Christopher Harker and Kathrin Hörschelmann (eds), Conflict, Violence and Peace (Springer, 2017) 90.

8 Joint Standing Committee on Foreign Affairs Defence and Trade, Commonwealth of Australia, Hidden in Plain Sight: An Inquiry into Establishing a Modern Slavery Act in Australia (Final Report, December 2017) ch 8 (‘Hidden in Plain Sight Report’) [8.3]; Kathryn E van Doore, ‘Paper Orphans: Exploring Child Trafficking for the Purpose of Orphanages’ (2016) 24(2) International Journal of Children’s Rights 378.

9 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘Convention’).

10 Ibid art 9.

11 Ibid art 9(3).

12 Ibid art 20(1).

i Introduction

On 2 March 2016, Senator Linda Reynolds CSC addressed the Senate regarding her trip to Cambodia with child protection organisation, Save the Children Australia.1 The topic of her speech was ‘Voluntourism’ and she outlined how, when she had asked how Australians could best assist Cambodia, the message was ‘clear and unequivocal: please stop Australians coming here to support unregulated orphanages and unknowingly becoming what are internationally termed “orphanage tourists”’. 2 Since that speech, Australia has been regarded as leading the world in responding to what is known as ‘orphanage tourism’. 3 Orphanage tourism is a relatively recent phenomenon and is defined as the ‘donation of money and goods, attending performances, or volunteering on a shortterm basis at orphanges as part of one’s holiday’ and is a part of the volunteer tourism industry.4 Voluntourism has become a booming industry in low and middle-income countries and is estimated to globally generate up to USD2.6 billion per year in revenue.5 As a form of voluntourism, orphanage tourism is said to objectify children as commodities to be consumed6 and has spawned what is known as the ‘orphan industrial complex’.7 It has also been linked to a form of child trafficking known as ‘paper orphaning’ or ‘orphanage trafficking’, where children are transferred or recruited into orphanages for the purpose of exploitation and profit.8 This article considers how Australia has responded to the emerging issues of orphanage tourism and orphanage trafficking. The article begins by examining the rights owed to children without parental care under the Convention on the Rights of the Child (‘Convention’),9 which Australia has ratified, and how they intersect with, and are infringed upon by, orphanage tourism. It then considers the action that Australia has taken in an effort to curb their citizens’ potential participation in orphanage tourism and orphanage trafficking as a potential model for other countries to follow. ii

Child Rights and Orphanage Tourism

Children without parental care are regarded as one of the most vulnerable groups in the world. The Convention establishes that children have a right not to be separated from their parents unless by a decision of a competent administrative process,10 and, if they are separated, to maintain contact with and/or be reunified with their parents.11 Where children are without parental care, art 20(1) of the Convention states that ‘a child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State’.12

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In addition, arts 32–6 of the Convention protect children from forms of exploitation, including the sale of children, child trafficking and economic exploitation.

Resolutions to the Convention, including the Guidelines for the Alternative Care of Children,13 and the Promotion and Protection on the Rights of the Child focusing on children without parental care,14 adopted in 2009 and December 2019 respectively, have re-emphasised the vulnerability of children without parental care and suggest that state parties should adopt special measures to protect them.

However, despite these rights being enshrined and emphasised, it is estimated that there are approximately 5.5 million children growing up in institutional care across the world,15 with at least four out of five of these children having one or both parents alive that could raise them with support.16 The rights of children without parental care living in orphanages are directly impacted by orphanage tourism, where foreigners spend time at orphanages visiting and volunteering with resident children as part of their travel itinerary.17 Research indicates that long-term institutional care is harmful for children and that the segregated nature of institutional care in combination with ‘low quality care’ places ‘children at risk of severe physical or sexual abuse, violation of fundamental human rights, trafficking for sex or labour, exploitation through orphan tourism, and risk to health and wellbeing after being subjected to medical experimentation’.18 However, rather than being regarded as infringing upon child rights, orphanage tourism has generally been regarded as a positive interaction where volunteers and tourists assist orphaned children. In recent years, links between orphanages and the recruitment of children for profit have resulted in various media campaigns by child protection organisations outlining the potential harms of orphanage tourism.19 These concerted campaigns to educate tourists of the potential harms appear to have little significant impact with a study of over a decade of tweets from 2009–19 mentioning ‘orphanage tourism’ finding that orphanage tourism was usually mentioned positively. 20 In countries such as Cambodia and Nepal, scholars have argued that orphanages are being established in locations popular with tourists to ensure that volunteering opportunities are available to meet the demand for orphanage tourism, rather than being established to look after orphaned children.21 In Cambodia, Reas argues ‘that a major factor as to why orphanages continue to be established in Siem Reap is tourist demand and not an increase in orphan numbers’22 and that ‘orphan numbers are not increasing, but tourists wishing to volunteer with children—as part of their gap-year adventures, or a day’s holiday activity—need orphanages to meet this desire’.23 Previous research in Cambodia by UNICEF indicates that orphanage tourism was a key fundraising activity for many orphanages and that most orphanages were reliant on funding from overseas donors.24 Likewise, in Nepal, a report from an international non-government organisation, Next Generation Nepal, outlined that ‘children have become a lucrative commodity in Nepal, and the willingness of voluntourists and donors to provide funds ensures the ongoing demand for children to be unnecessarily displaced from their families’.25 In contexts where children are removed from their families to live in orphanages to meet the demand for orphanage tourism, their rights to a family environment, to parental contact and even to be protected from exploitation are violated and undermined.26 Through orphanage tourism, Australia is linked to the infringement of children’s’ rights in such countries by sending volunteers, visitors and funds to support orphanages. iii

Australia’s Response to Orphanage Tourism

Australia has a long and difficult history with child institutionalisation, most recently highlighted by the Royal Commission into Institutional Responses to Child Sexual Abuse. 27 Despite Australia ratifying the Convention in 1993 and joining as a co-sponsor on the latest United Nations General Resolution on the Protection and Promotion on the Rights of the Child in December 2019, 28 the Committee on the Rights of the Child has consistently noted Australia’s poor record in dealing with children in alternative care in their concluding observations on the periodic reports to the Convention on the Rights of the Child. 29 Most recently, in 2019, the Committee on the Rights of the Child noted the increasing number of children in alternative care settings, the badlyre trained and poorly supported staff, and the failure to provide appropriate mental health and therapeutic services to children in alternative care settings in Australia.30

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13 Guidelines for the Alternative Care of Children, UN Doc A/RES/64/142 (24 February 2010 adopted 18 December 2009).

14 Promotion and Protection of the Rights of Children, UN Doc A/RES/74/133, (20 January 2020 adopted 27 November 2019).

15 Philip S Goldman et al, ‘Institutionalisation and Deinstitutionalisation of Children 2: Policy and Practice Recommendations for Global, National, and Local Actors’ (2020) 4(8) Lancet Child & Adolescent Health 606, 606 (‘Policy and Practice Recommendations’).

16 Corinna Csáky, ‘Keeping Children out of Harmful Institutions: Why We Should be Investing in Family-Based Care’ (Report, Save the Children, 2009) vii.

17 Cheney and Rotabi (n7) 5.

18 Marinus H van IJzendoorn et al, ‘Institutionalisation and Deinstitutionalisation of Children 1: A Systematic and Integrative Review of Evidence regarding Effects on Development’ (2020) 7(8) Lancet Psychiatry 703, 708.

19 So Young Park et al, ‘A Little Blue Bird Told Me: Sentiment Change on Orphanage Tourism’ (Research Paper No 55, Travel and Tourism Research Association, 2020) 3.

20 Ibid 7.

21 Martin Punaks and Katie Feit, ‘Orphanage Voluntourism in Nepal and its Links to the Displacement and Unnecessary Institutionalisation of Children’ (2014) 1(2) Institutionalised Children Explorations and Beyond 179; P Jane Reas, ‘“So, Child Protection, I’ll Make a Quick Point of It Now”: Broadening the Notion of Child Abuse in Volunteering Vacations in Siem Reap, Cambodia’ (2015) 18(4) Tourism Review International 295, 306.

22 P Jane Reas, ‘“Boy, Have we got a vacation for you”: Orphanage Tourism in Cambodia and the Commodification and Objectification of the Orphaned Child’ (2013) 16(1) Thammasat Review 121.

23 Reas, ‘Children that are Cute enough to Eat’ (n 6) 83, 85.

24 Ibid.

25 UNICEF, With the Best of Intentions: A Study of Attitudes Towards Residential Care in Cambodia (Report, 2011) 8.

26 Hannah Reid, ‘Orphanage Tourism and the Convention on the Rights of the Child’ in Joseph M Cheer et al (eds), Modern Day Slavery and Orphanage Tourism (CABI, 2020) 4.

27 Royal Commission into Institutional Responses to Child Sexual Abuse (Final Report, December 2017).

28 Promotion and Protection of the Rights of Children, 3rd Committee, 73rd sess, Agenda 70, UN Doc A/73/585 (29 November 2018) para 31.

29 Committee on the Rights of the Child, Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Australia, UN Doc CRC/C/AUS/CO/5–6 (30 September 2019).

30 Ibid 8–9.

31 ‘Australia’s Appearance Before the United Nations Committee on the Rights of the Child: Opening Statement’ (Speech, United Nations Committee on the Rights of the Child, 9 September 2019) (emphasis added).

32 Inquiry into Establishing a Modern slavery Act in Australia’, Parliament of Australia (Web Page) <https://www.aph.gov.au/ modernslavery>.

33 See, eg, ReThink Orphanages, Submission 23 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Inquiry to Establish a Modern Slavery Act in Australia (2017); Cambodian Children’s Trust, Submission 25 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Inquiry to Establish a Modern Slavery Act in Australia (2017); ACFID Child Rights Community of Practice, Submission 55 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to Establish a Modern Slavery Act in Australia (2017); Andrea Nave and Forget Me Not, Submission 114 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to Establish a Modern Slavery Act in Australia (2017); ACC International, Submission 140 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to Establish a Modern Slavery Act in Australia (2017); Forget Me Not Nepal, The Himalayan Innovative Society, and Adara Development, Submission 155 to the Joint Standing Committee on Foreign Affairs, Defence and Trade, Inquiry to Establish a Modern Slavery Act in Australia (2017).

34 Joint Standing Committee on Foreign Affairs Defence and Trade, Commonwealth of Australia, Hidden in Plain Sight: An Inquiry into Establishing a Modern Slavery Act in Australia (Final Report, December 2017) ch 8 (‘Hidden in Plain Sight Report’).

35 Ibid 267 [8.159].

36 Reid (n 26) 15.

37 Linda Reynolds, ‘Modern Slavery Bill Passes House of Representatives’ (Media Release, Commonwealth, 17 September 2018) <https://minister.homeaffairs.gov.au/lindareynolds/Pages/modern-slavery-bill-passes-house-of-representatives.aspx>.

38 Maud de Boer-Buquicchio, Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography, GA Res 71/37, UN GA, 71st sess, provisional agenda item 65(a), UN Doc A/71/261 (1 August 2016) 15–16.

39 United States Department of State, Trafficking in Persons Report 2017 (Report, United States of America Department of State, June 2017) 296.

It is perhaps a curiosity then that Australia has taken such an interest in upholding the rights of children residing in overseas orphanages. Indeed, in the latest response to the Committee on the Rights of the Child, the Australian contingent began by stating that ‘Australia is deeply committed to upholding the realisation of the full range of civil, political, economic, social and cultural rights of children both domestically and abroad’.31 In what might be considered an exemplification of these ideals, the Australian government has led the world in considering the issues of orphanage tourism and orphanage trafficking since Senator Reynolds’ speech in 2016.

Most pertinently, in 2017, the issues of orphanage tourism and orphanage trafficking were one of the key focus areas of the inquiry into whether Australia should have a Modern Slavery Act.32 Evidence given throughout the Inquiry strongly linked Australian participation in orphanage tourism to the potential exploitation of children in countries such as Nepal and Cambodia.33 The culminating Hidden in Plain Sight Report included a whole chapter on the issue of orphanage trafficking and made 12 recommendations concerning action that the Australian government should take to curb orphanage tourism and prevent orphanage trafficking.34 This included recommendation 43 which explicitly called for the Australian Government to introduce offences and penalties for individuals, businesses, organisations and other entities that facilitate, enable, organise, benefit from, or profit from tourist visits to overseas residential institutions, and/or who donate to or fund overseas residential institutions, that do not operate in compliance with the United Nations Convention on the Rights of the Child, the United Nations Guidelines for the Alternative Care for Children and the proposed Australian Government register.35 For Reid, the Australian Government’s consideration of the Convention and Guidelines for Alternative Care as a reference point for potential legislation and awareness raising mechanisms to combat orphanage tourism represent a significant intervention ‘at the highest levels of government’.36 Whilst the Australian Government has not moved to criminalise orphanage tourism as yet, the Modern Slavery Act 2018 (Cth) has been highlighted as leading the world in considering orphanage trafficking as a form of modern slavery. In a press release regarding the Modern Slavery Bill 2018 (Cth) passing the House of Representatives in September 2018, Assistant Minister Senator, the Hon Linda Reynolds stated: As a result of this legislation, Australia will also be the first nation in the world to recognise orphanage trafficking as a form of modern slavery.

This means that a reporting entity with activities or supply chains which involve orphanages will need to assess and report on any risks relating to modern slavery in these operations.37 The resultant legislation requires that reporting entities such as charities or tourism companies that are involved in orphanage tourism must report on how they mitigate the risk of the exploitation of children in orphanages.

At a global level, there has also been growing concern regarding the links between orphanage tourism and the exploitation of children. In 2016, the Report of the Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography to the Human Rights Council highlighted that research has provided evidence of systems in which the owners of orphanages use intermediaries to get children who look poor to orphanages, in order to satisfy a fee-based volunteering demand, generating significant profits. Traffickers lure poverty-stricken families into giving away their children, under promises of good living conditions and education. Children are then often left in poor conditions, in order to prompt foreign charity, and forced to perform activities to please foreign volunteers.38 Other major international reports have also linked orphanage tourism to the exploitation of children. In 2017, the annual Trafficking in Persons Report published by the United States Department of State first included a link between orphanage tourism and child trafficking by outlining in the Nepal narrative that children ‘are forced to pretend to be orphans to garner donations from tourists and volunteers’.39 In 2018, a special interest topic of ‘Child Institutionalization and Human Trafficking’ was

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included in the Trafficking in Persons Report which espoused that ‘the profits made through volunteer-paid program fees or donations to orphanages from tourists incentivize nefarious orphanage owners to increase revenue by expanding child recruitment operations in order to open more facilities’.40 Most recently, the 2019 United Nations Resolution on the Rights of the Child, co-sponsored by Australia, specifically addressed orphanage tourism as a driver of child trafficking into orphanages and encouraged State Parties to take action against it by ‘taking appropriate measures to prevent and address the harms related to volunteering programmes in orphanages, including in the context of tourism, which can lead to trafficking and exploitation’.41 Australia has taken a key role in influencing other domestic jurisdictions to consider action regarding orphanage tourism. The Lancet Commission report on institutionalisation and deinstitutionalisation of children, published in June 2020, stated that Australia has been the most successful country in responding to orphanage tourism and could provide a model for other countries to follow.42 One example is the Dutch Parliament which has extensively considered the mechanisms that Australia is employing to combat orphanage tourism and trafficking in an Initiative Paper led by van Hagan MP 43 and a subsequent Parliamentary Roundtable held on the issue.44 Such investigations into how state parties intersect with orphanage tourism and corresponding action are crucial to ensuring that children living in orphanages do not continue to have their rights undermined and violated.45 iv Conclusion

Australia’s response to orphanage tourism and the exploitation of children in orphanages has been widely praised. Whilst it remains to be seen whether the Australian Government will seek to implement the remaining recommendations made in the Hidden in Plain Sight Report, it is clear that an international conversation on how contributing countries might respond to orphanage tourism has been sparked. However, what appears to be missing from this conversation so far is how affected countries where orphanage tourism is linked to aid funding and tourism income are responding. Unless the international community can resolve to work together on this issue, the impact on orphanage tourism and the exploitation of children will be limited.

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40 Ibid 22.

41 Resolution on the Rights of the Child, UN Doc A/RES/74/133, (18 December 2019, adopted 20 January 2020) para 35(s).

42 Goldman et al (n 15) 615.

43 Wybren van Haga, Een Goede Bedoeling is Niet Altijd een Goed Idee: Een Voorstel tot Bestrijding van Weeshuistoerisme (Initiative Paper 35069, November 2018).

44 Parliamentary Roundtable to Discuss Initiative Paper 35069 from MP Van Haga (Roundtable, Parliament of Netherlands, March 2019).

45 Reid (n 26) 16.

Disability Discrimination in Children’s Competitive Sport A Human Rights Perspective1

Dominique Moritz and Simone Pearce*

This paper has been supported by the Community Inclusion Capacity Development Grant (Economic and Community Participation) funding from the National Disability Insurance Agency (4-DXQ9S1D).

* Dr Dominique Moritz, Lecturer in law, University of the Sunshine Coast; Sunshine Coast Health Institute specialising in children’s law issues. She holds a PhD in health law and regulation; Simone Pearce, Lecturer in law, University of the Sunshine Coast. She has 20 years’ experience as a lawyer and is now a Lecturer in Law including Sports Law. She holds a Masters of Laws, specialising in Sports Law and is a PhD candidate in disability discrimination in children’s sport.

1 See, eg, International Charter of Physical Education, Physical Activity and Sport, UN ESCOR, 38th mtg, Agenda Item 4.9, UN Doc SHS/2015/P1/H/14 REV (18 November 2015).

2 Nick Hodge and Katherine Runswick-Cole, ‘‘They Never Pass Me the Ball’: Exposing Ableism Through the Leisure Experiences of Disabled Children, Young People and Their Families’ (2013) 11(3) Children’s Geographies 311; Simon Darcy, Daniel Lock and Tracy Taylor, ‘Enabling Inclusive Sport Participation: Effects of Disability and Support Needs on Constraints to Sport Participation’ (2016) 39(1) Leisure Sciences 20; Simon Darcy and Leanne Dowse, ‘In Search of a Level Playing Field – the Constraints and Benefits of Sport Participation for People with Intellectual Disability’ (2013) 28(3) Disability & Society 393; Simon Darcy et al, Getting Involved in Sport: Participation and Non-Participation of People with Disability in Sport and Active Recreation (Report, 2011); Howard L Nixon, ‘Constructing Diverse Sports Opportunities for People with Disabilities’ (2007) 31(4) Journal of Sport and Social Issues 417.

3 See, eg, Disability Discrimination Act 1992 (Cth) s 3 (‘Disability Discrimination Act’). Note that the Convention on the Rights of Persons with Disability was ratified by Australia in 2008, and the Disability Discrimination Act was introduced in 1992. Changes to the Disability Discrimination Act have been made which might be said to be consequential upon

i Introduction

Children participate in sport for various reasons. Sport provides opportunities for health and wellbeing, teamwork, a sense of accomplishment and self-esteem, among other things.2 However, for children with disability, their experience in competitive sport is different to that of children without disability, because they take part with a disability.3 At times, they may need extra support to take part, the rules may impact the contest being fair, they may be included physically without concern for their ability to ‘keep up’, they may be provided a separate sport from the mainstream, or they may be excluded from participating altogether. The nature of children’s competitive sport is such that the rules are designed without recognising that a child with a disability may be at a disadvantage. The disadvantage that children with disability face in competitive sport raises significant issues. One of those issues is whether a child with disability is unfairly discriminated against on the basis of impairment if they are not provided a fair contest. Discrimination legislation aims to limit unfair discrimination for people with disability.4 Non-discrimination is also a fundamental human right.5 If a child is unfairly discriminated against on the basis of their impairment in their treatment and experience in sport, the law and/or human rights may provide a solution.

The Disability Discrimination Act 1992 (Cth) (‘DDA’) provides that treating a person ‘less favourably’ because of their disability is discriminatory and unlawful; yet there are exceptions in a sporting context.6 The DDA requires sporting organisations to facilitate reasonable adjustments to sporting activities to provide for people with disabilities so they are treated no less favourably than those without disability in circumstances that are not materially different. However, it is not necessarily understood nor implemented, what it means to treat a person no less favourably than a person without disability in sport. And therefore, the DDA, whilst apparently reflecting the human right to non-discrimination, may not be implementing human rights as they relate to sport. The human right to non-discrimination includes being treated with equality in competitive sport, and it is only effective if it is implemented through domestic law. The realities of Australia’s discrimination legislation are that children with disability can be treated less favourably than children without disability in competitive sport. Where children with disabilities are involved in competitive sport, it is often not done in a way which provides them the same opportunity for a fair contest as children without disability enjoy, or segregates them into ‘lesser’ or limited sporting opportunities. Sport is structured in such a way that it contravenes the human rights of children with disability to be free from discrimination. This article considers those issues drawing upon international and domestic frameworks governing disability discrimination for children.

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ii

The Human Right to Sport

Sport is a fundamental social, health and community activity.7 While some commentary exists that sport itself, or participation in sport, is a human right,8 or that there is a human right ‘to the practice of sport’,9 there are difficulties and complexities in establishing these rights.10 Questions arise as to firstly, where that right is found, and secondly, whether the ‘right’ is simply to physical inclusion, without regard to impairment, or a ‘right’ to a fair contest. It is apparent that there is no human right to participate in sport. However, it is unassailable that sport is an activity to which human rights apply, such as the right not to be discriminated against; or that there are human rights which sport might facilitate. For example, because people have a right to ‘health, participation in cultural life and development’, sport may facilitate achieving that right.11 Various conventions and other human rights instruments apply the human right to non-discrimination for children with disabilities in their treatment in sport.

The Convention on the Rights of People with Disability (‘CRPD’) provides that all people are ‘equal’ and worthy of legal protection. Children with disabilities have been acknowledged to deserve ‘all human rights and fundamental freedoms on an equal basis with other children’.12 More specifically, the human rights instruments refer to the treatment of people with disability in sport. The CRPD provides: 5. With a view to enabling persons with disabilities to participate on an equal basis with others in … sporting activities, States Parties shall take appropriate measures:

(a) To encourage and promote the participation, to the fullest extent possible, of persons with disabilities in mainstream sporting activities at all levels; …

(d) … in the school system.13 The International Charter of Physical Education, Physical Activity and Sport provides that ‘inclusive, adapted and safe opportunities to participate’ in sport should be available to all.14 ‘Discrimination’ is not defined in the human rights instruments that initiate and declare it as a right to be free from, namely the Universal Declaration of Human Rights.15 However, the CRPD does define discrimination for a person with disability, to mean: any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms . . . including denial of reasonable accommodation.16 Making ‘reasonable accommodation’, means: necessary and appropriate modification and adjustments not imposing disproportionate or undue burden … to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.17 The Convention on the Rights of the Child declares that children should be free from ‘discrimination of any kind’ irrespective of their disability;18 and that governments should ‘take all appropriate measures to ensure that the child is protected against all forms of discrimination’.19 iii

Equality and Non-discrimination in Sport

Equality and non-discrimination are challenging concepts when it comes to children with disability in competitive sport. When children with disability participate in sport, it does not necessarily mean they are involved in a fair contest. 20 For example, if a child with a disability is permitted to compete against a competitor without disability without adjustments being made to account for disadvantage, they are being allowed to participate. They may be taking part physically, but not in a way which is fair. They are at a disadvantage in the contest due to the failure to adjust the environment to account for disadvantage.

‘Equality’ is a term consistently applied across human rights instruments.

Despite the acknowledged complexities of the term, 21 it is relevant to children’s sport.

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Dominique Moritz and Simone Pearce, Disability Discrimination in Children’s Competitive Sport

the Convention on the Rights of Persons with Disability, but it has not been explicitly set out in the legislation. Cf Racial Discrimination Act 1975 (Cth) which refers to human rights obligations.

4 Convention on the Rights of Persons with Disability, opened for signature 30 March 2007, 2515 UNTS 3, (entered into force 3 May 2008) art 3(b) (‘CRPD’).

5 Disability Discrimination Act (n 4) s 28(3).

6 Sarah Somerset and Derek J Hoare, ‘Barriers to Voluntary Participation in Sport for Children: A Systematic Review’ (2018) 18(1) BMC Pediatrics 47.

7 See, eg, Rachel McKinnon, ‘Participation in Sport is a Human Right, Even for Trans Women’, Sports Integrity Initiative (Web Page, 17 June 2019) <https://www.sportsintegrityinitiative.com/participation-in-sportis-a-human-right-even-for-trans-women/>; Bruce Kidd and Peter Donnelly, ‘Human Rights In Sports’ (2000) 35(2) International Review for the Sociology of Sport 131; Paulo David, Human Rights in Youth Sport: A Critical Review of Children’s Rights in Competitive Sport (Routledge, 2005).

8 See, eg, Genevieve Lim, ‘A Right to Sport: Theory, Evidence and Implications’ (2012)1–2 The International Sports Law Journal 120.

9 Ibid.

10 Human Rights Council, Final Report of the Human Rights Council Advisory Committee on the Possibilities of Using Sport and the Olympic Ideal to Promote Human Rights for All and to Strengthen Universal Respect for Them, UN Doc A/HRC/30/50 (17 August 2015) 4.

11 CRPD (n 5) art 7(1).

12 Ibid art 30.5(a), (d).

13 International Charter of Physical Education, Physical Activity and Sport, UN Doc SHS/2015/P1/H/14 REV (n 2) art 1.3.

14 Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (10 December 1948).

15 CRPD (n 5) art 2.

16 Ibid.

17 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3, (entered into force 2 September 1990) art 2.1.

18 Ibid art 2.2.

19 Peter FitzSimons, ‘Rethink Needed on Junior Football Club’s Opposition to Marc Reichler-Stillhard’, Sydney Morning Herald (online, 18 August 2017) <https://www. smh.com.au/sport/peter-fitzsimons-arethink-needed-on-barred-down-syndrome-boy-20170818-gxz8u3.html>; Simone Pearce, ‘Disability Discrimination in Children’s Sport’ (2017) 42(2) Alternative Law Journal 143; Nixon (n 3); Jill M LeClair, ‘Global Organizational Change in Sport and the Shifting Meaning of Disability’ (2011) 14(9) Sport in Society 1072, 1077.

20 See, eg, Sandra Fredman, Discrimination Law (Oxford Press, 2nd ed, 2011) 25.

21 Ibid.

22 Ibid.

23 There are many instances where children with disability are provided different opportunities that are very different from those without disability, and not just to provide fairness, which is not always necessary.

24 Note there are times when safety, or the impossibility of doing the activity, means that it is necessary to separate the children.

25 Disability Discrimination Act (n 4) s 28.

26 Ibid s 5.

27 Ibid s 4.

28 Ibid s 28(3).

29 Pearce (n 20); Simone Pearce and Dominique Moritz, ‘#whataboutme: Can the Inclusion of Gender Diverse Children Pave the way for children with disability in sport?’ Australian and New Zealand Sports Law Journal (forthcoming).

30 Disability Discrimination Act (n 4) s 28(3).

31 (1999) EOC ¶93-031.

32 Ibid [1.2].

33 Note that this case was decided before the Disability Discrimination Act amendment that required a reasonable adjustment in s 5.

34 Pearce and Moritz (n 30).

When children with disability are included in a sporting competition, without any adjustments for disadvantage encountered, there may not be equality in the competition because all children are being treated the same. When the same circumstances are applied to all people equally, this is known as formal equality. Formal equality can produce injustices because treating people with disability the same as people without disability may leave them at a disadvantage. 22 Substantive equality, comparatively, provides adjustments for a person based upon the whole of their differing circumstances and background, and allows them to compete in a way that accounts for the disadvantage they experience. 23 Substantive equality in children’s sport provides all children with a fair contest, with reasonable adjustments made for children with disability to address the disadvantage created by the environment. Where children with disability are excluded, included without adjustment to recognise disadvantage, or segregated into a separate (or noncomparable)24 competition unnecessarily, 25 substantive equality is not provided.

Despite the ‘equality’ terminology being used in human rights instruments, children with disability are not always provided equality when it comes to competitive sport, and domestic legislation in Australia does not resolve that inequality. iv

Discrimination Legislation and Sport in Australia

The DDA provides that it is unlawful to exclude a person, including a child, from a sporting activity because of their disability.26 The legislation imposes an obligation for ‘reasonable adjustments’ to be made to overcome disadvantage which a person with disability faces when their impairment interacts with the rules constructed by society.27 The DDA provides ‘an adjustment … is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship …’. 28 Whether, and how, an adjustment is to be made for children with disability in competitive sport, is not clear in the DDA. Statutory exceptions create further complications.

Where a person is not ‘reasonably capable of performing the actions reasonably required’ in the sporting activity, it is not discriminatory to exclude them from participation.29 Whether or not an accommodation is ‘reasonable’ will, in part, depend upon whether the person is reasonably capable of undertaking the activities of the sport in the first place. Reasonable capability is not defined in the legislation.

The simple interpretation, and example, is that if a person is not ambulant and the sport requires the use of legs to run, then they can be excluded, as any adjustment would not be reasonable—requiring a change to the rules that might be considered a ‘burden’. There is no compulsion to provide that person a sporting opportunity.

Further, if a person can run, and is included, they do not have to be provided a fair contest. If the human rights instruments mean that a child with disability is to be included with fairness in a sporting competition, as people without disabilities are, this is not clear in the DDA. In Australia, there are three outcomes where the DDA does not provide for inclusion of children with disability in competitive sport.30 Firstly, children who are not ‘reasonably capable’, can be lawfully excluded from sporting activities.31 Where children with disability cannot undertake the activities reasonably required for the sport, they can be lawfully excluded from sport. In Martin Wells v Queensland Cyclists Association,32 reasonable capability was considered a question of fact, determined according to whether the person was ‘reasonably capable of preforming [sic] those actions reasonably which are required of one who wishes to engage competitively in road cycling’.33 The reference made to ‘competitiveness’ suggests that if the person is not reasonably capable of competing, they can be lawfully excluded from the sport.34 So, if a person with disability is not competitive, because they are at a disadvantage compared to their peers without disabilities, they can lawfully be excluded from the sport.

Secondly, children with disability may be deemed ‘reasonably capable’, resulting in them participating in sport without any adjustment to address disadvantage they face. Because a child may be deemed ‘reasonably capable’, they are not given reasonable adjustments to ensure fairness, because they are already ‘included’.

Consequently, if the required activity for the sport is running, a child with a disability who can run would likely be considered ‘reasonably capable’. However, physically participating, without being competitive, does not engender fairness and does not align with substantive equality. Because children without disability do not share the disadvantage, they are at an advantage over those with disability. Reasonable

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35 See, eg, ‘Multi-Class Athletes’, Little Athletics Queensland (Web Page, 2020) <https:// laq.org.au/competition/multi-class/>.

36 Danielle Peers, ‘Interrogating Disability: The (De)composition of a Recovering Paralympian’ (2012) 4(2) Qualitative Research in Sport, Exercise and Health 175.

37 Ibid.

38 For children in Australia, the classification system that is inherited from the International Paralympic system is not implemented in team sports. There are some team sports that have completely separate team opportunities in special sections, such as Victorian Football League for people with intellectual impairments: ‘Home’, Victorian FIDA Football League (Web Page) <https:// websites.sportstg.com/assoc_page. cgi?client=1-8408-0-0-0>. Other sports have special teams that have limited opportunities, such as netball: ‘People with a Disability’, Netball Australia (Web Page, 2020) <https://vic.netball.com.au/ people-disability>.

39 Kathy Cologon, Inclusion in Education: Towards Equality for Students with Disability (Issues Paper, 24 October 2013); Joanna Anderson and Christopher Boyle, ‘Inclusive Education in Australia: Rhetoric, Reality and the Road Ahead’ (2015) 30(1) Support for Learning 4.

40 CRPD (n 5) art 30.5(a), (d).

adjustments provided for in the DDA are not applied to address disadvantage in the sport. The law does not provide that once physically included, the contest is to be adjusted to take into account the disadvantage of a child with a disability.

That leads to the third outcome for a child with disability in sport. Children with disability are at times segregated in sporting competitions where the competition with children without disabilities is considered unfair to them.35 While some sports like Little Athletics ‘classify’ children according to their disability to take part in a separate contest,36 the classification system does not always provide suitable adjustments. Some children have a disability which cannot be classified;37 some children are classified incorrectly;38 some children compete in events alone because of low numbers in the category, classified opportunities are limited or less than the mainstream in many cases; and team sports have very limited classification opportunities.39 When children with disability are segregated, they are not being included ‘on an equal basis’, nor ‘in mainstream sport’ as provided for in the CRPD. The DDA does not address this treatment of children with disability.40 v Conclusion

Despite equality and non-discrimination being fundamental human rights, the DDA does not extend those rights to children with disabilities in competitive sport. The participation of children with disability, ‘on an equal basis with others’, in ‘mainstream sport’, ‘at all levels’, and in the ‘school system’ does not regularly occur in Australia.41 When children with disabilities in sport are excluded, included without reasonable adjustment, or segregated, the DDA does not provide a solution, and indeed facilitates exclusion. The DDA does not align with human rights that provide for reasonable adjustments to the environment of sport for children with disability to experience fair contests. Until the domestic legislation more closely aligns with human rights instruments, children with disability will remain at a disadvantage and experience discrimination in competitive sport.

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At the Intersection The Right to Inclusive Education for Children with Disabilities in Australia

Sevda Clark

i Introduction

In Australia, inclusive schooling is educational policy rather than law, having been adopted through some measures in Australian states and territories. The Disability Discrimination Act 1992 (Cth) (‘DDA’) prohibits discrimination in education on the basis of disability, which is reflected in legislation in the states and the territories.

Relevant to the provision of educational experiences for people with disability are the Disability Standards for Education 2005 (‘the Standards’). The Standards, formulated under the DDA, clarify and make more explicit the obligations of education and training service providers and the rights of people with disabilities in relation to education and training. They are legally binding and must be complied with. Pursuant to the DDA and the Standards, Australian students with a disability must be able to access and participate in education on the same basis as their peers. To ensure this, students with a disability may receive adjustments to access education, based on the professional judgement of teachers and with consultation with the student and/or their parents, guardians or carers. A policy process in Australia that supplements the DDA and the Standards is the Nationally Consistent Collection of Data on School Students with Disability (‘NCCD’), which gives Australian schools, parents, guardians and carers, education authorities, and the community information about the number of students with disability in schools and the adjustments they receive.1 Notwithstanding, space continues to be carved out for special schools, as demonstrated most recently by the enacted Disability Discrimination Regulations 2019 (Cth),2 which allow the Director-General (SA) to direct that a child be enrolled at a special school and enables an educational authority to refuse to enrol a student on the basis of disability.3 Facilitating the exclusion of children with disabilities from mainstream education rather than promoting inclusion thereby engages the right to equality and non-discrimination. When questioned on the compatibility of the measure with human rights by the Parliamentary Joint Committee on Human Rights, the Attorney-General of South Australia stated that, while there is ‘no explicit obligation to consider the right to inclusive education’, the Education Act 1972 (SA) requires the Director-General to consider the best interests of the child when making a direction that a child should attend a special school.4 Notably, the AttorneyGeneral then argued that ‘compulsory enrolment at a special school could be a special measure’ within the meaning of the DDA, which provides that it is not unlawful to afford persons who have a disability access to facilities, services or opportunities to meet their special needs in relation to education. However, as a matter of international human rights law, compulsory enrolment in a special school cannot constitute a special measure, in light of the right to inclusive education and the right to equality and non-discrimination and the related state obligation to provide reasonable

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1 The Australian Education Regulation 2013 (Cth), s 60 requires all schools to report the data collected for the Nationally Consistent Collection of Data on School Students with Disability (‘NCCD’) to the Australian Government on an annual basis.

2 These regulations remake the Disability Discrimination Regulations 1996 (Cth), which sunsetted on 1st October 2019. The Disability Discrimination Act 1992 (‘DDA’) provides that discrimination on the basis of disability is unlawful in certain identified areas of public life. Section 47(2) of the DDA sets out specific exemptions from the prohibitions on disability discrimination in relation to anything done by a person in direct compliance with a prescribed law.

3 The Disability Discrimination Regulations 2019 (Cth) prescribed ss 75(3) and 75A of the Education Act 1972 (SA), thereby exempting these from the prohibitions on disability discrimination under the DDA. These sections provide that where, in the opinion of the Director-General, it is in the best interests of a child that the child be enrolled at a special school, the Director-General may nominate and direct that the child be enrolled at a special school.

4 Parliamentary Joint Committee on Human Rights, Parliament of Australia, Human Rights Scrutiny Report (Report No 2, 12 February 2020) 20.

5 For a useful overview of inclusive education in Australia, see Kathy Cologon, Inclusion in Education: Towards Equality for Students with Disability (Issues Paper, 2015).

6 The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (‘Disability Royal Commission’) is a royal commission established on 4 April 2019 by the Australian government pursuant to the Royal Commissions Act 1902 (Cth).

7 Transcript of Proceedings, Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Ronald Sackville, Rhonda Galbally, Roslyn Atkinson, A J Mason, 4 November 2019) 5[15] (Ronald Sackville).

8 See Annette Holahan and Virginia Costenbader, ‘A Comparison of Developmental Gains for Preschool Children with Disabilities in Inclusive and Self-Contained Classrooms‘ (2000) 20(4) Topics in Early Childhood Special Education 224.

9 Kate De Bruin, ‘Does Inclusion Work?’ in Linda J Graham (ed), Inclusive Education for the 21st Century: Theory, Policy and Practice (Allen & Unwin, 2020) 76–7.

10 Robert Jackson, Inclusion or Segregation for Children with an Intellectual Impairment: What Does the Research Say? (Report, June 2008) 4.

11 Ibid 5.

12 Grzegorz Szumski, Joanna Smogorzewska and Maciej Karwowski, ‘Academic Achievement Of Students Without Special Educational Needs in Inclusive Classrooms: A Meta-Analysis’ (2017) 21 Educational Research Review 33, 49.

13 Ibid 47.

14 Thomas Hehir et al, A Summary of the Evidence on Inclusive Education (Report, 2016) 7.

15 347 US 483 (Kan, 1954) (‘Brown’).

16 Linda J Graham, ‘Inclusive Education in the 21st Century’ in Linda J Graham (ed), Inclusive Education for the 21st Century (Allen & Unwin, 2020) 3, 18.

17 Catherine Clark, Alan Millward and Alan Dyson, Towards Inclusive Schools? (Routledge, 2018) v.

18 See generally, James M Kauffman et al, ‘Where Special Education Goes to Die’ (2019) 27(2) Exceptionality: The Official Journal of the Division for Research of the Council for Exceptional Children 149.

See also David Connor, ‘Why is Special Education So Afraid of Disability Studies?

Analyzing Attacks of Distain and Distortion from Leaders in the Field’ (2019) 34(1) Journal of Curriculum Theorizing 10.

Disability special education scholar Connor analyses six leading articles in the field of special education to show how they ‘provide evidence of special education’s attempt to reassert itself into a nostalgically imagined Golden Age’. Tellingly, it does so largely within its own fiercely guarded kingdom of journals in which dissention from orthodoxy equals heresy’: at 20.

19 De Bruin, ‘Does Inclusion Work?’ (n 9).

accommodation for children with disabilities. Clearly, the right to inclusive education is not yet firmly established in Australia.5 The themes of the first public hearing of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (‘Disability Royal Commission’) in 2019 6 was inclusive education and exploring the barriers in the Australian education system to students with disability in accessing and obtaining a quality education. It was not a matter of happenstance that education and learning was chosen by the Disability Royal Commission. The Chair of the Commission, Ron Sackville, when explaining the choice, called education an enabler of other rights such as work, housing, political participation and access to justice.7 This second hearing explored experiences of violence, abuse, neglect and exploitation, and the consequences which flow to students and their families when students have not been given proper access to equitable education.

The paper that follows discusses inclusive education as best practice, highlights the evolving practice towards inclusion at the international level and details the codification of the right to inclusive education in art 24 of the Convention on the Rights of Persons with Disabilities (‘CRPD’). The paper then concludes with an intersectional re-reading of a leading European Court of Human Rights decision in order to demonstrate how the rights of children with disabilities to an inclusive education can be justified, as compared with the prohibition of racially segregated schooling in international human rights law. ii

Inclusive Education as Best Practice

Empirical research conducted over four decades is firmly in favour of inclusive education, and much research has documented the benefits of the inclusion of preschool children with disabilities, for example.8 In contrast, segregated special education has been seen to be a ‘seductive narrative’9 that is not supported by evidence and empirical data. A study and meta-review by Jackson investigating the empirical basis for inclusion as compared with segregation finds that, in over 40 years of research, no comparative review between segregation and inclusion that argues in favour of segregation could be found.10 The author concludes that, given the overwhelming evidence in favour of inclusion, discussions should move from a focus on ‘should we include’ to ‘how to include more successfully’, and the additional training and resources that can be provided to teachers and schools to facilitate smooth and effective outcomes.11 Transforming a regular school into an inclusive one has been found to improve the academic achievement of students without a disability, where learning in inclusive classrooms is positively associated with the academic achievement of students without special academic needs.12 The finding by Szumski, Smogorzewska and Karwowski in their meta-analysis that inclusive education may be beneficial is relevant to educational policy-makers responsible for decisions about the promotion of inclusion.13 The authors suggest the significance of their finding that inclusive education does not infringe upon the rights of the majority of students as especially important for legal argumentation, which tend to be dominated by a strong focus on students with special academic needs. Similarly, in the ‘Summary of the Evidence on Inclusive Education,’ the Alana report synthesising the empirical research also demonstrates that in most cases, non-disabled students are either neutrally or positively impacted by being educated in an inclusive classroom.14 Evolving Practice Towards Inclusion at the International Level Inclusive education represents a legal requirement and a right of people with disabilities. The seminal case of Brown v Board of Education (‘Brown’)15 in 1954 in the US Supreme Court found separate educational facilities to be inherently unequal and established the precedent that was applied to another decision,16 a class action on the right to education. In the 1971 case of PARC v Commonwealth of Pennsylvania, it was held that segregating children with an intellectual disability violated the principles of Brown. Special education as a field thus came to be directly challenged.

Two decades after finding itself at a crossroads,17 special education is said to be going to its death by leading special education scholars.18 ‘Students educated in segregated settings graduate to inhabit the same society as students without disability; there is no ‘special’ universe into which they graduate. It is therefore vital to cultivate an inclusive culture within schools if we wish to create an inclusive culture’.19

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A major outcome of the International Year of Disabled Persons was the formulation of the World Programme of Action (‘WPA’) concerning Disabled Persons, adopted by the General Assembly in 1982. It is a global strategy to enhance disability prevention, rehabilitation and equalization of opportunities, which pertains to full participation of people with disability in social life and national development.

The WPA emphasised the need to approach disability from a human rights perspective and restructured disability policy into three distinct areas, one being the equalisation of opportunities. The new era heralded by WPA defined disability as the relationship between persons with disability and their environment, and the need for full inclusion of people with disability in society. This culminated in the World Conference on Special Needs Education in Salamanca, Spain, where inclusive education was conceived. The Salamanca Statement (1984) stated clearly that ‘regular schools with (an) inclusive orientation are the most effective means of […] achieving education for all’.

As noted in the scholarship, the Statement had some influence on the development of policy and legislation in many countries that responded to its call. However, in the absence of an authoritative definition of inclusive education, this influence was mitigated and led instead to considerable confusion. 20 Efforts towards inclusive education have since been piecemeal, with the decades after Salamanca being marked by the lack of a clear definition of inclusion, and the medical model dominating policy discourse. 21 This has since been remedied by the CRPD Committee by standard-setting, where it has articulated the human rights model of disability, in which ‘barriers within the community and society, rather than personal impairments, exclude persons with disabilities.’22 This is elaborated upon below.

These two factors, namely the lack of a clear definition and the rebadging of integration as inclusion, in turn resulted in the muddying of the waters of the literature and practice surrounding inclusive education; descriptive analyses and critical examinations of its successes and failures all stand and fall on what counts as inclusive. ‘Inclusive’ and ‘mainstream,’ two mutually exclusive terms, have been conflated. 23 Slee, for example, argues that ‘special’ education has been ‘rebadged’ as ‘inclusive’ education, 24 and suggests that when challenged by inclusive education, special education found itself at a crossroads at which it ‘repainted the signs on the side of the bus and continued on largely unimpeded’. 25 This appropriation, also termed ‘fauxclusion’, is argued to be a response to the threat that inclusive education presented to special education as a field and is seen to have thwarted the genuine development of inclusive education. 26 This lack of a clear definition has been identified as problematic in the future potential and development of inclusion, and necessitates the need for precision in use of terminology. 27 Graham cites an example of a child’s physical placement in a classroom, to demonstrate ‘fauxclusion’: the child was occupying a completely different learning space, and Graham states that that ‘it is an indictment of our collective understanding of inclusive education that this child’s ghostly presence in the “mainstream” class is being taken as evidence of inclusion’. 28 Though passing itself off as ‘inclusion’, such practices are demonstrative of integration and not inclusion: ‘business as usual plus add-ons’. 29 Although inclusive education was placed on the agenda in Salamanca, and enthusiastically adopted by many states, including Australia, Peters demonstrates that it may continue to be elusive for the majority of individuals with disabilities,30 absent the concomitant change in policy where the discourse shifts from a medicalised view of disability to a social-contextual model. iii

Codification of Inclusive Education

As the first legally binding international provision to codify the right to inclusive education, art 24 of the CRPD affords binding force to the aspirational aims of the Salamanca Statement. It does not define ‘inclusive’ and, a decade after its adoption, the CRPD Committee remedied confusion, and misappropriation of the term in its General Comment No 4 (‘GC4’), detailing the definition, scope and core content of the art 24 right. In establishing what inclusion is, and what it is not, the GC4 effectively settles the varied definitions and conceptualisations of inclusion that proliferated post Salamanca.31 In defining inclusive education, the GC4 has broken the existing stalemate in confusion and misappropriation of the term. The nexus between disability and inclusion is reinforced, as ‘at its core… inclusive education is and has always been about

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20 Kate De Bruin, ‘The Impact of Inclusive Education Reforms on Students With Disability: An International Comparison’ (2019) 23(7–8) International Journal of Inclusive Education 811, 812 (‘International Comparison’).

21 Susan J Peters, ‘“Education for All?”: A Historical Analysis of International Inclusive Education Policy and Individuals With Disabilities’ (2007) 18(2) Journal of Disability Policy Studies 98, 106.

22 Committee on the Rights of Persons with Disabilities, General Comment No 4 (2016) on the Right to Inclusive Education, UN Doc CRPD/C/GC/4 (25 November 2016) 2.

23 Graham (n 16) 5.

24 Roger Slee, ‘Limits to and Possibilities for Educational Reform’ (2006) 10(2–3) International Journal of Inclusive Education 109, 116. Graham (n 16) uses the term ‘rebadging’ to refer to practices that ‘are antithetical inclusion (exclusion, segregation)’ that are commonly ‘rebadged as inclusion (integration)’.

25 Ibid 112.

26 Graham (n 16) 7.

27 Ibid 6.

28 Ibid 11.

29 Ibid 14.

30 Peters (n 21) 107.

31 De Bruin, ‘International Comparison’ (n 20) 812.

32 Juliet Davis et al, ‘Inclusive Education as a Human Right’ in Linda J Graham (ed), Inclusive Education for the 21st Century (Allen & Unwin, 2020) 79, 92.

33 Committee on the Rights of Persons with Disabilities (n 22) 4 [11].

34 Ibid 2 [4(a)].

35 Dimitris Anastasiou, Michael Gregory and James M Kauffman, ‘Article 24: Education’ in Ilias Bantekas, Michael Ashley Stein and Dimitris Anastasiou (eds), The UN Convention on the Rights of Persons with Disabilities: A Commentary (Oxford University Press, 2018) 656, 661.

36 Frédéric Mégret, ‘The Disabilities Convention: Towards a Holistic Concept of Rights’ (2008) 12(2) International Journal of Human Rights 261, 274.

37 Anastasiou, Gregory and Kauffman (n 35) 665.

38 Ibid 674.

39 Ibid 687.

40 Ibid 677.

41 Committee on the Rights of Persons with Disabilities (n 22).

42 Josh Josa and Cynthia Chassy, ‘How-To Note Disability Inclusive Education’ (Report, USAID Office of Education, November 2018) 1–2.

disability. This is its strength and not a weakness’.32 Inclusion is defined as a fundamental human right that is distinguished from exclusion, segregation and integration: Inclusion involves a process of systemic reform embodying changes and modifications in content, teaching methods, approaches, structures and strategies in education to overcome barriers with a vision serving to provide all students of the relevant age range with an equitable and participatory learning experience and environment that best corresponds to their requirements and preferences. Placing students with disabilities within mainstream classes without accompanying structural changes to, for example, organisation, curriculum and teaching and learning strategies, does not constitute inclusion. Furthermore, integration does not automatically guarantee the transition from segregation to inclusion.33 Clearly, placement in mainstream schools is not enough. Further, inclusion involves the implementation of the human rights model of disability, which is based on a social-contextual understanding of disability ‘in which barriers within the community and society, rather than personal impairments, exclude persons with disabilities’.34 The standard-setting in the GC4 on inclusive education provides a human rights agenda that treats civil, cultural, economic, political and social rights as truly universal, indivisible, interdependent and interrelated. In delineating the scope and obligations of state parties, the GC4 seamlessly moves between the respect, protect and fulfil trichotomy of state obligations. States have the immediate duties of non-discrimination (not subject to progressive realisation), to protect against third party interference with the right and the positive obligation to fulfil the right to inclusive education, progressively.

In their commentary on art 24, Anastasiou, Gregory and Kauffman put forward a limited reading of art 24’s provisions as ‘operat[ing] predominately within an antidiscrimination paradigm’.35 Yet, the CRPD produces a fuller and more holistic view of human rights, thereby ignoring the traditional dichotomies of international human rights law such as the anachronistic separation of so-called first generation civil and political rights, from second generation economic, social and cultural rights.36 Article 24 stipulates immediate core obligations upon states that they are to respect, such as ensuring the prohibition of discrimination through the provision of inclusive education. However, it also stipulates positive obligations to protect against thirdparty violations of rights, and to progressively realise the fulfilment of the right to inclusive education. Inclusion requires the provision of individualised support and specialised instructional approaches; thus, inclusion concerns ‘more than simply opening up the schoolhouse doors’.37 Thus, ‘[m]eaningful participation and individualised support’38 and ‘education that is meaningful to individual learning’39 is at the core of inclusive education. Furthermore, while art 24 may not directly address ‘subtler forms of exclusion’,40 it is captured in ‘[ensuring] an inclusive education system’ in art 24(1) and ‘quality primary and secondary’ education in art 24(2)(b).

Further, in their mischaracterisation of art 24, the authors do not address the three minimum core obligations of art 24, which are all immediately realisable, namely: non-discrimination and non-exclusion in all aspects of education, the provision of reasonable accommodation and compulsory, quality, free and accessible primary education for all.41 USAID’s Bureau for Economic Growth, Environment and Education’s Office of Education offers a useful working definition on inclusive education. In ‘What Does Inclusive Education Look Like?’ USAID proposes the following, echoing the UN CRPD Committee in GC4: Inclusive education means having one inclusive system of education for all students, at all levels, (early childhood, primary, secondary and post-secondary) with the provision of supports to meet the needs of students with disabilities.

Inclusion involves a profound cultural shift to ensure that all children, as well as staff, parents and other members of the school community, feel valued, welcomed and respected. It requires a process of systemic reform with changes and modifications in content and materials, teaching methods, approaches, structures and strategies. Placing students with disabilities within mainstream classes without accompanying structural changes to, for example, organization, curriculum and teaching and learning strategies does not constitute inclusion.42

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Clearly, placement is not enough, but it is a prerequisite for inclusive education to occur.43 Inclusive education is thus defined in opposition to the mainstream inflexible 20th century education system.44 Inclusive education is not the same as its parts, and though schools may be culturally, linguistically or otherwise diverse, they cannot be said to be inclusive if they do not include students with disabilities: ‘[a]lthough acceptance of and responsiveness to all forms of human diversityincluding cultural diversity-is a central element of inclusive education, the whole is greater than the sum of its parts, and no one part can ever constitute the whole’.45 iv An

Intersectional Re-Reading of Leading European Court of Human Rights Decision

Disadvantage is often compounded for children with disabilities who possess other diverse traits such as race, gender, or are from a culturally and linguistically diverse (‘CALD’) background. Intersectionality is a useful theoretical framework for understanding how aspects of a person’s social and political identities might combine to create unique modes of discrimination and privilege. The intersection of forms of oppression, including racism, sexism, ageism or ableism, disempowers many people with disabilities and has ‘serious and sometimes deadly implications’.46 Coined by Kimberlé Crenshaw, who first wrote about the concept in 1989,47 intersectionality posits that anti-discrimination frameworks operate on the basis of a ‘single axis’ of discrimination.48 The consequence of the single axis approach, Crenshaw argues, is that anti-discrimination law in the United States tends to work for ‘those who are privileged but for their racial or sexual characteristics’.49 Intersectionality identifies advantages and disadvantages that are felt by people due to a combination of factors.

In other words, an intersectional analysis of the right to inclusive education would demand that the sum is greater than its parts. At the intersection of disability and race, students are uniquely and acutely vulnerable. However, this is an intersectional subset that tends to go unnoticed. Schiek and Lawson note that none of the cases that went before the European Court of Justice, and were at the intersection of race and disability, established ethnic or racial dimensions of disability, that undoubtedly exist.50 However, Schiek suggests that ‘the stigmatisation of Roma children as mentally disabled in order to achieve ethnically segregated schools has been brought before the European Court of Human Rights’.51 The case of DH v Czech Republic52 was the first case challenging systemic racial segregation in education to reach the European Court of Human Rights. The 18 applicants were all school children from the town of Ostrava and were Czech nationals of Roma descent, born between 1985 and 1991 and therefore nine to 15 years old at the time of the application in 2000. Between 1996 and 1999, they were placed into ‘special schools’ for children with mental disabilities, where they received an inferior education based on a diluted curriculum.

The complaint was based on the argument that their treatment amounted to discrimination in conjunction with their right to education being denied.

The applicants’ submissions to the European Court of Human Rights included extensive research indicating that Roma children were systematically assigned to segregated schools based on their racial or ethnic identity rather than intellectual capacities.53 When this case was brought, Roma children in the Czech Republic were 27 times more likely to be placed in special schools for the mentally disabled, than non-Roma children.54 The Court held that this pattern of segregation was discriminatory.55 The statistics presented to the court demonstrated the segregated nature of schools in Ostrava, concluding that, in the year of 1999, over half of Roma children were placed in special schools; over half of the students in special schools’ were Roma; that any randomly chosen Roma child was more than 27 times more likely to be placed in a ‘special school’ than a non-Roma child.56 Even where Roma children managed to avoid the placement in special schools, they were most often enrolled in substandard, and predominantly Roma, urban ghetto schools. Having been placed into substandard education, these Roma children had little chance of accessing higher education or steady employment opportunities.57 The judgment is ground-breaking in its recognition of the application of the right to non-discrimination to systemic patterns of discrimination that deny the enjoyment of rights to racial or ethnic groups, and not just to specific acts of

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43 De Bruin, ‘International Comparison’ (n 20) 812–3.

44 Graham (n 16) 5.

45 Ibid 4.

46 Subini Ancy Annamma, Beth A Ferri and David J Connor, ‘Disability Critical Race Theory: Exploring Intersectional Lineage, Emergence, and Potential Future of DisCrit in Education’ (2018) 42(1), Review of Research in Education 46, 47.

47 Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ [1989] University of Chicago Legal Forum 139.

48 Ibid 139.

49 Ibid 151.

50 Dagmar Schiek and Anna Lawson, European Union Non-discrimination Law and Intersectionality: Investigating the Triangle of Racial, Gender and Disability Discrimination (Ashgate, 2011) 20.

51 Dagmar Schiek, ‘Organizing EU Equality Law Around the Nodes of ‘Race’, Gender and Disability’ in Dagma Schiek and Anna Lawson (eds), European Union Non-Discrimination Law and Intersectionality: Investigating the Triangle of Racial, Gender and Disability Discrimination (Ashgate, 2011) 11–27.

52 (Final Judgement) (European Court of Human Rights, Grand Chamber, Application No 57325/00, 13 November 2007).

53 Ibid 49–51 [133]–[137].

54 Ibid 6 [18].

55 Ibid 71 [207]–[210].

56 Ibid 6 [18].

57 Ibid 49–50 [134], 52–3 [144].

58 Ibid 5 [15].

59 Ibid 5 [16].

60 Ibid 71 [207].

61 Ibid 53 [145].

62 Ibid 51 [145].

63 Ibid 57–8 [159].

64 163 US 537 (1896).

65 Ibid 13–15 [44].

66 Ibid 67 [192]–[193].

67 See ibid 51–2 [141]. The Court stated that ‘the documentary evidence showed that a number of the applicants had been placed in special schools for reasons other than intellectual deficiencies (such as absenteeism, bad behaviour, and even misconduct on the part of the parents)’.

discrimination. In holding that segregation is discriminative, the Court clarified that racial segregation amounts to discrimination. For the first time, the Court confirmed that, where a difference in treatment takes the form of the disproportionate prejudicial effects of a general policy or measure which, though framed in neutral terms, discriminates against a racial or ethnic group, it may amount to ‘indirect discrimination’. Further, where it has been shown that legislation produces an unjustified discriminatory effect, it is not necessary to prove any discriminatory intent on the part of the relevant authorities. This will apply, according to the Court’s decision, even where the wording of particular statutory provisions is neutral, but operates in a racially disproportionate manner without justification, placing members of a particular racial or ethnic group at a significant disadvantage.

While the Court held that the racial segregation of Roma children in school was discriminatory, it did not challenge the segregation of children with disabilities. The Court cited the establishment of specialised schools after the First World War for children with special needs, including those suffering from a mental or social handicap.58 The special schools in question, under the present case, were a category of these specialised schools, intended for children with mental deficiencies who were unable to attend ‘ordinary’ or specialised primary schools.59 The Court held that: the applicants were placed in schools for children with mental disabilities where a more basic curriculum was followed than in ordinary schools and where they were isolated from pupils from the wider generation. As a result, they received an education which compounded their difficulties and compromised their subsequent personal development instead of tackling their real problems or helping them integrate into the ordinary schools and develop the skills that would facilitate life among the ordinary population.60 Taking segregated schooling for children with disabilities for granted was particularly surprising in the Court’s judgment, given the applicants’ claim that the special school system was purportedly ended by a new Schools Act in 2004.61 The applicants claimed that the ‘new legislation thus acknowledged that the very existence of schools deemed ‘special’ imposed a badge of inferiority on those placed there’.62 The government responded by stating that the new Act ‘did not provide for a separate, independent system of specialised schools, with the exception of schools for pupils with serious mental disorders’ and that students with disabilities ‘were individually integrated, wherever possible and desirable’.63 Given the Court’s cognizance of the decision to phase out special schools and absent any further dicta by the Court to the contrary, it can be argued that segregated schools were assumed to be justified and legitimate for children with disabilities. Thus, racial discrimination was found, but disability discrimination was not. We are left with a decision that reads like the seminal case of Brown, in its insistence that separate treatment is not equal treatment, in terms of racial discrimination. However, with respect to the rights of children with disabilities, this same decision reads more like its infamous predecessor (which was partially overruled

by Brown), Plessy v Ferguson,64 where it was held that racial segregation is not in itself a violation of equality if the facilities in question were otherwise equal—a doctrine that came to be known as ‘separate but equal’.

Applying an intersectional lens to the Roma case would yield a markedly different response. The difference in treatment of Roma children, who, as stated by the interveners to the case, were seen as intellectually less capable due to the lack of a ‘national definition of “disability”’ meaning that the statute ‘used definitions in which some form of disability was connected to the socio-cultural background of the child, thus leading to door to discriminatory practices open’.65 Effectively, the Court ruled that the applicants may not have been intellectually disabled,66 but had they been, the decision may have had a different outcome. The Court straddled the intersection of race and disability but approached the decision on a single axis, thereby depriving children with disabilities of the right to an inclusive education as provided through precedent. The logical extension of the Court’s reasoning is that if the Roma children had in fact been mentally disabled, it would have been justified for them to be placed in segregated schooling.67

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v Conclusion

In the leading case of Brown, the US Supreme Court stated that ‘we must look instead to the effect of segregation itself on public education’.68 Similarly, in assessing the segregation of students with disabilities from the mainstream student population, we must look to the underlying rationale of equality and non-discrimination law as aided by the torch of an intersectional analysis. A strong argument for segregated schooling as discriminatory, and in violation of the rights of students with disabilities to equality, has to be based on ‘the common rationale for banning discrimination on all grounds’—namely that it consists of overcoming disadvantage derived from any form of ascribed otherness.69

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68 Brown (n 15) 691 [492]. Whilst using the notion of segregation for race as being a relevant comparison for discrimination purposes, it is acknowledged that discrimination on the basis of disability is different from discrimination on the basis of race, as exemplified in the issues surrounding reasonable adjustments.

69 Schiek, ‘Organizing EU Equality Law Around the Nodes of ‘Race’, Gender and Disability’ (n 51) 21.

The Failure of the Failure to Prevent by a Person in Authority Offence

Penny Crofts*

* Doctor Penny Crofts is an Associate Professor at the Faculty of Law, University of Technology Sydney. This article was funded by an Australian Research Council Grant Rethinking Institutional Culpability: Criminal Law, Horror and Philosophy (DE18010057).

1 Royal Commission into Institutional Responses to Child Sexual Abuse (Criminal Justice Report, 2017) Executive Summary and pts I–II, 56 (‘Criminal Justice Report’).

The recommendation is modelled on the section 49O of the Crimes Act 1958 (Vic) which criminalises the failure by a person in authority to protect a child up to 16 years old from a sexual offence, and carries a maximum penalty of five years imprisonment. In response to Royal Commission recommendations, the Australian Capital Territory (‘ACT’) passed the Royal Commission Criminal Justice Legislation Amendment Bill 2019 (ACT), which inserted section 66A in the Crimes Act 1900 (ACT) and carries a maximum penalty of five years imprisonment.

2 Criminal Justice Report (n 1) pts I–II, 50–1.

3 Ibid 54–6.

The Royal Commission into Institutional Responses to Child Sexual Abuse, which spanned from 2013 to 2017 (‘Royal Commission’), provided an extraordinary amount of detail and evidence about the extent of child abuse in a wide range of public and private institutions. The Royal Commission demonstrated that child sexual abuse was not only historical but continues to occur in the present. As indicated by its formal title, the Royal Commission was tasked with investigating institutional responses to child sexual abuse. Evidence was presented where institutions had failed to protect children in their care from child sexual abuse, whether by allowing the abuse to occur and/or inhibiting detection and response. Despite the findings demonstrating that it was not by tragic accident that perpetrators of child sexual abuse were able to offend against children for long periods of time in specific organisations, no reforms were recommended by the Royal Commission to criminalise organisational failure. The pinnacle of recommended reforms in terms of ‘third party offending’ by the Royal Commission is to criminalise a failure by a person in authority to protect a child from sexual abuse.1 This article argues that these reforms are insufficient as shown by evidence presented at the Royal Commission. The offence is too narrowly framed and fails to grapple with culpable people in authority and the organisational failure to prevent child sexual abuse. i

Failure to Reduce or Remove Risk of Child Sexual Abuse

In addition to recommending a broad failure to report offence, 2 the Royal Commission recommended the creation of an offence of failure to protect by a person in authority, modelled on the Victorian offence introduced in 2015 in response to the Betrayal of Trust Report.3 In response to this Royal Commission recommendation, in 2018 the New South Wales (‘NSW’) legislature passed the Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW) which created an offence with a maxium of two years imprisonment for a failure by an adult who is a position holder to reduce or remove risk of a child becoming a victim of child abuse: 1. A person commits an offence if—

(a) the person is an adult who carries out work for an organisation, whether as an employee, contractor, volunteer or otherwise (a position holder), and

(b) the organisation is the employer of an adult worker who engages in child-related work, and

(c) there is a serious risk that the adult worker will commit a child abuse offence against a child who is, or may come, under the care, supervision or authority of the organisation, and

(d) the position holder knows that the risk exists, and

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4 Crimes Act 1900 (NSW) s 43B. 5 Criminal Justice Report (n 1) Executive Summary and pts I–II, 55.

6 Crimes Act 1900 (NSW) ss 43B(c)–(f).

7 Criminal Justice Report (n 1) pts II–IV, 134.

8 The few examples where the new failure to prevent offence could possibly be established (if it had existed at the time) were in religious organisations. For example, the Royal Commission found in Case Study 11 that there were repeated allegations of child sexual abuse against Brothers some of whom were transferred to another Christian Brothers organisation and were allowed to have contact with children: ibid pts III–IV, 136; and in Case Study 13, Brother Chute admitted to sexually abusing children to senior Marist Brothers as early as 1962 and yet ongoing allegations were not reported to police and Chute was able to have continued contact with children until he was removed from teaching in 1993: ibid. It should be noted that the leadership at these organisations has changed across time and that difficulties establishing the failure to prevent offence would arise out its requirement that its elements be proved against a specific person in authority.

9 Royal Commission into Institutional Responses to Child Sexual Abuse: The Response of Knox Grammar School and the Uniting Church in Australia to Allegations of Child Sexual Abuse at Knox Grammar School in Wahroonga, New South Wales (Report of Case Study No 23, June 2016) (‘Report of Case Study 23’) 5–8, 24.

10 Ibid 10.

11 See, eg, Case Studies 12, 13 and 42.

12 Nydam v The Queen [1977] VR 430, 445.

13 See, eg, Royal Commission into Institutional Response to Child Sexual Abuse: The Response of Institutions to the Conduct of Steven Larkins (Report of Case Study No 1, September 2013) (‘Report of Case Study 1’).

Mandatory reporting of child sexual abuse existed at the time that Paterson was headmaster: Children (Care and Protection) Act 1987 (NSW) s 22.

14 Report of Case Study 23 (n 9) 50.

15 Ibid. 50–2.

16 Ibid 55.

17 Ibid 56–7.

18 Ibid 57.

19 Ibid 56.

20 Ibid 57.

(e) the position holder, by reason of the person’s position, has the power or responsibility to reduce or remove that risk, and (f) the position holder negligently fails to reduce or remove that risk.4

In recommending that all states and territories should enact a ‘failure to protect’ offence, the Royal Commission noted that the Victorian offence is ‘targeted quite narrowly’.5 The NSW Parliament has maintained the narrow focus of the offence by specifying that the offence only applies to a person in authority who has the necessary knowledge of a ‘serious risk … against a child who is, or may come, under the care … of the organisation’, ‘has the power or responsibility to reduce or remove that risk’, and ‘negligently fails to reduce or remove that risk’.6 I will now consider one of the rare examples of where the offence could possibly apply to demonstrate that the offence is too narrow in its construction. ii

Application of the Offence to Dr Paterson at Knox Grammar School

Part IV Chapter 15 of the Royal Commission’s Criminal Justice Report provides a summary of some of the case studies where abuse was not reported or where steps were not taken to protect children by third parties.7 Of those case studies, very few provide examples where a person in authority would have had the necessary knowledge and negligently failed to reduce or remove that risk against a child in care at that organisation.8 I will consider in detail the example of Dr Ian Paterson, the headmaster at the prestigious Knox Grammar School (‘Knox’) from 1969–98, to tease out the limits of the new offence. The offence does not apply retrospectively, so this is a hypothetical analysis. I have selected this case study because unlike many of the other case studies, Paterson satisfied the legislative requirement of knowledge of a serious risk that a worker employed by the organisation will commit a child abuse offence against a child under the care of the organisation. The Royal Commission found that Paterson had knowledge of different allegations against, and admissions by, five teachers who were employed by Knox during the time that Paterson was headmaster and were later convicted of child sex offences against students in 2009.9 Paterson would also have met the requirement as a ‘person in authority’, because he was ‘responsible for the day-to-day operations and governance of the school, including the recruitment and supervision of staff’.10 Unlike other case studies, where the person in authority changed over time,11 Paterson was in a position of authority for many years, thus this element is also established. Although Paterson offers an extreme example from the Royal Commission case studies in terms of a person in authority having knowledge of the risk of child sex abuse over a long period of time, it would still be difficult to establish the elements of the failure to prevent offence.

The question would be whether Paterson’s responses negligently failed to reduce or remove that risk. This requires a criminal standard of negligence, that is that the act or omission of the person in authority fell so far short of the standard of care which a reasonable person would have exercised in the circumstances and such a high risk of [child sexual abuse], that he or she merits criminal punishment.12 Like many other case studies, Paterson failed to report allegations (and admissions) to the police.13 This would be covered by the failure to report offences and would go towards, but not be sufficient in and of itself, in establishing criminal negligence.

Paterson gave positive references to staff who left Knox after allegations and/ or admissions of child sexual abuse which then enabled the staff members to work at other schools. For example, in 1988 there was a sexual assault on a boarder while he was in bed in one of his dormitories by a perpetrator wearing a Knox tracksuit and a balaclava.14 The assault was not reported to the police or Community Services.15 Paterson admitted that he suspected that Fotis, a teacher and resident master at Knox, was the perpetrator.16 Fotis was removed as resident master but kept his job as teacher until he was charged with indecent exposure on two separate occasions.17 Paterson then required Fotis to leave the school.18 No record was made as to the real reasons why he was required to leave.19 Paterson gave Fotis a positive reference and failed to mention suspicions that he had committed a serious sexual assault and that he had been arrested for indecent exposure. 20 Fotis then went on to teach in the state school system. 21 Although the Royal Commission found that the reference was ‘grossly misleading’, the provision of positive refer-

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ences for staff would not go towards negligence because the offence requires the risk of child abuse to be against ‘a child who is, or may come, under the care, supervision or authority of the organisation’. 22 Paterson could argue that by providing positive references he had removed the risk of abuse of children in his care.

This is a major weakness of the offence as whilst there are some organisations, like the Catholic Church within which abusers can (be) move(d), 23 in education, abusers can be given positive references and move to another school and this would not go towards a finding of criminal negligence.

Paterson knew of serious allegations against Nisbett, who was a teacher at Knox between 1971–2004, including indecent assaults, and giving alcohol and cigarettes to the boys. 24 Paterson removed Nisbett from his role as a resident master of one of the boarding houses, but no other action was taken. 25 He wrote a letter to Nisbett which made no mention of disciplinary action. 26 Paterson also did not keep any record of the investigation into Nisbett on his file and failed to record the true reason for Nisbett’s removal in 1986, which meant that when Paterson left Knox, the new headmaster was unaware of the allegations. 27 This failure to adequately record child sexual abuse allegations for principals employed after Paterson would not go towards negligence as Paterson would no longer be the person in authority and the children no longer in his care. In 1990, Paterson allowed Nisbett to return to occupy a residence located near a new boarding house and to fill the role of housemaster from time to time. This allowed Nisbett to be alone with the boys on occasion. 28 Paterson claimed that he said to Nisbett, ‘I hope you are careful with your touching habits with boys’, but knew that he had not undertaken any counselling and did not ensure supervision of Nisbett. 29 Allowing Nisbett to be alone with boys after the allegations and also allowing his return to housemaster could contribute towards, and might amount to, criminal negligence.

Paterson also had no procedures in place for making allegations of child sexual abuse; in fact, he actively discouraged allegations. For example, Vance was employed as resident master at Knox in 1984.30 Although the job of resident master involved caring for boarders (at times without supervision), Knox did not require an applicant to fill out an application form or prepare a CV.31 This absence of procedures of recruitment and employment to ensure that staff who supervise children are child-safe would go towards negligence. A student complained to Paterson that Vance had inappropriately touched him in 1989.32 Paterson told the student that this was a serious allegation and sent him away to think about it.33 Despite this discouragement, the student maintained his allegations against Vance.34 Vance admitted that the allegations were true but Paterson failed to report it to the police.35 Vance was permitted to resign but, despite mandatory reporting obligations, Paterson did not notify police or the child’s parents.36 Paterson gave Vance a written reference that made no mention of his dismissal from school.37 Once again, Paterson’s actions and omissions would be negligent but probably not criminally negligent, particularly as the positive reference would be excluded.

The closest example of Paterson’s knowledge and criminal negligence would be when Paterson was visited by Inspector Cullen from the NSW Police Child Protection Enforcement Agency about allegations she had received against of child sexual abuse by all five teachers in 1996, three of whom were still employed by Knox at the time. Paterson was aware of reports and allegations against all (and admissions by some of the) five teachers.38 Despite this, Paterson did not reveal any of these allegations or admissions to Inspector Cullen.39 He allowed her to have access to files which, because of his poor recording practices, he knew did not contain any information.40 Doctor Paterson was questioned as to whether he had deliberately hindered Inspector Cullen’s investigation, and the Royal Commission ultimately rejected Paterson’s disavowals of having deliberately misled Cullen.41 Specifically for the purposes of the failure to protect offence, Paterson conceded that his failure to tell her about the incidents was a ‘gross failure’.42 The Knox example shows another weakness in the new offence – negligence relates to the actions or omissions of the person in authority in relation to one specific worker. The inaction of Paterson (and the Board) in relation to sex offending at Knox was cultural and cumulative, but criminal negligence would have to be established in relation to the failure to prevent a risk of sex offending by a specific employee who worked at Knox. The Knox example also shows the difficulty of establishing the knowledge of those in authority.43 Whilst Paterson knew of the allegations, the Board (could claim that it) did not. Although the Board had a duty

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21 Ibid 58.

22 Ibid 57.

23 Report of Case Study 1 (n 13). Steven Larkins was stood down as a scout leader in one area and simply joined another troop and went on to become a district leader: at 4, 10.

24 Report of Case Study 23 (n 9) 28.

25 Ibid 5.

26 Ibid 29.

27 Ibid.

28 Ibid.

29 Ibid.

30 Ibid 31.

31 Ibid. The lack of safe recruitment policies for a high risk position would contribute to negligence, however in this case, a criminal record search would not have revealed anything untoward. For further analysis regarding failures in recruitment procedures at the YMCA, see Penny Crofts, ‘Monsters and Horror in the Australian Royal Commission into Institutional Responses to Child Sexual Abuse’ (2018) 30(1) Law and Literature 123.

32 Report of Case Study 23 (n 9) 32.

33 Ibid.

34 Ibid.

35 Ibid 33.

36 Ibid.

37 Ibid 35–6.

38 Ibid 59.

39 Ibid.

40 Ibid.

41 Ibid 60–4.

42 Ibid. 64.

43 See also Royal Commission into Institutional Responses to Child Sexual Abuse: The Response of a Primary School and the Toowoomba Catholic Education Office to the Conduct of Gerard Byrnes (Report of Case Study No 6, January 2015). Byrnes began teaching in 1970 and had been a teacher or principal in a number of Catholic schools for 31 years: at 10. He was sentenced to 10 years’ imprisonment in 2010 after he pleaded guilty to 44 child sexual abuse offences against 13 girls: at 4. The headmaster minimised allegations when he reported to two senior education officers at the Toowoomba Catholic Education Office who in turn did not report the allegations to their supervisor: at 39. This led to the Assistant Director later approving Byrnes as a relief teacher, because she was unaware of the allegations against him: at 39.

44 See Tesco v Nattrass [1972] AC 153.

Analysed in Penny Crofts, ‘Criminalising Institutional Failures to Prevent, Identify or React to Child Sexual Abuse’ (2016)6(3) International Journal for Crime, Justice and Social Democracy 104, 107–9.

45 Ibid. See also Mihailis E Diamantis, ‘Functional Corporate Knowledge’ (2019) 61(2) William and Mary Law Review 319. its doctrines for corporate\ndefendants are fraught with ambiguity and opportunities for gamesmanship.\nCorporations can spread information thinly across employees\nso that it is never \”known. \”And prosecutors can exploit legal\nuncertainties to bring knowledge-based charges where corporations were merely negligent in how they handled information. Whereas\nknowledge as a mens rea has unique practical and normative properties\nthat vary with a corporation’s size and industry, corporate law\ntreats knowledge just like any other mental state and uses the same\ndoctrine for all corporations.

Commentators dissatisfied with that\ndoctrine have overlooked an obvious resource: social epistemology\n(the formal study of group knowledge states 46 See, eg, Report of Case Study 1 (n 13).

There were multiple members of the Service Management Committee of the Hunter Aboriginal Children’s Service (HACS). The Royal Commission found that the committee members were inexperienced as board members and in relation to legislative and regulatory requirements: at 36.

47 See, eg, Penny Crofts, ‘Criminalising Institutional Failures to Prevent, Identify or React to Child Sexual Abuse’ International Journal for Crime, Justice and Social Democracy (2017) 6(3) 104–22; Penny Crofts, ‘Three Recent Royal Commissions: The Failure to Prevent Harms and Attributions of Organisational Liability’ Sydney Law Review (forthcoming).

of oversight which it did not fulfil, this lack of knowledge about allegations would mean that (members of) the Board could not be criminally liable. Paterson never (formally) informed the Board of any of the allegations or the police investigation.

Although Knox is not a particularly large organisation, it reflects insights of corporate law theory that the more senior a person is in an organisation, the less likely they are to know about harms and crimes. The new offence is framed in accordance with the dominant theory of corporate accountability, that of identification theory.44 This requires proof of mens rea by the directing mind and consequently discourages auditing and knowledge by board members – as ignorance precludes criminal prosecution.45 Moreover, there were many case studies, including at Knox, where there were multiple Board members across time, so even if a specific member of the Board had the necessary knowledge, they were unlikely to have been sufficiently negligent in relation to a specific child at risk.46 iii Conclusion

The failure to prevent offence by persons in authority is too narrowly framed, even on the basis of the findings of the Royal Commission itself. Too many people in authority fail to have the necessary knowledge of the risk of child sexual abuse, and this lack of knowledge is often due to systemic failures, for example, a lack of training of staff to recognise grooming behaviour, a culture of bullying so that staff are reluctant to report allegations, no clear processes or policies of complaints and recording, and a lack of an appropriate response by those in authority on the rare occasions when they became aware of allegations which then discourages further complaints. Moreover, the offence requires criminal negligence by the person in authority in relation to the threat of a specific individual. This does not cover situations like that at Knox where there were multiple offenders who were enabled by systemic failures to offend, nor multiple persons in authority who contributed to systemic failure. The offence also does not include the provision of positive references to staff which enable them to leave the organisation and to work for other organisations. The failure to prevent offence by a person in authority is a necessary offence but needs to be more broadly framed to reflect the findings of the case studies. I have argued extensively as to why there needs to be a failure to prevent child sexual abuse at the organisational level.47 This article has argued that the failure to prevent offence by a person in authority is overly restrictive in its requirements and is likely to be very difficult, if not impossible, to establish, despite culpable failures by people in authority.

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The Child’s Right to Participate and Be Heard— Is Research Ethics Exempted?

Rita Shackel*

i

A Strange Gap in Children’s Rights

The right of children and young people to be heard and participate in matters that involve them, and in decisions which affect them underscores the spirit of the United Nations Convention on the Rights of the Child (‘CRC’).1 In recent times, increased recognition of children as active and autonomous social agents has driven and shaped many domestic laws and practices related to children across the globe. 2 Mechanisms of all kinds exist in the contemporary world to enable children and young people, whether individually or collectively, to have a voice in many different types of proceedings and processes, including legal, administrative and social forums.3 Though undoubtedly some of these mechanisms may be imperfect and may be in need of further refinement or development, they do exist and are in place, and they do recognise and mark the importance for children and young people to be heard, to have a voice and participate across all parts of society.4 For example, in Australia there are numerous youth advisory committees and boards that give young people a voice across a broad range of issues such as the NSW Youth Advisory Council,5 Newcastle Youth Council,6 and the WA Ministerial Youth Advisory Council.7 It is striking and indeed rather surprising that human research ethical review processes are largely devoid of, and are severely lagging behind other fields, when it comes to ensuring that youth8 have an active role, and are involved in the review of research relating to and affecting them. This deficiency can be seen across all fields of human research ethical review from legal and social justice research, through to medical, health and educational research.9 Yet, truckloads of research every year involves children and young people, either directly as research participants or through its research aims and outcomes, which are directed to evaluating or shaping practices, services, programs and/or policies that touch upon every facet of children’s lives and their well-being.10 ii

The Ethics of Research Related to Children and Young People

Research involving and related to children gives rise to many ethical considerations and dilemmas.11 These may include issues related to children and young persons’ capacity to understand what the research entails and the possible implications of their participation, the possibility of coercion by parents, peers or researchers, and potential conflicting values and interests of children and adults.12 Often, research involving children and young people takes place within the context of significant relationships such as child-parent, child-teacher, child-custodian, and often, the power dynamics within these relationships are heavily skewed against children.13

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* Professor of Law and Ethics, The University of Sydney Law School. The author gratefully acknowledges the research assistance provided by Tom Crawford.

1 Laura Lundy et al, The UN Convention on the Rights of the Child: a study of legal implementation in 12 countries (Report, 22 November 2012) 26–27. Article 12 of the convention states, “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law”: Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

2 Alan Campbell, ‘For Their Own Good: Recruiting Children for Research’ (2008) 15(1) Childhood 30, 30; Law Library of Congress, Children’s Rights: International and National Laws and Practice (Report, August 2007) 23.

See also Education Act 1990 (NSW); Student Assistance Act 1973 (Cth); Indigenous Education (Targeted Assistance) Act 2000 (Cth).

3 See, e.g. Campbell (n 2) 31; ‘Child Participation’, UN Special Representative of the Secretary-General on Violence Against Children (Web Page) <https://violenceagainstchildren.un.org/content/child-participation>; ‘UNICEF: Child and Youth Participation Resource Guide’, Sustainable Development Goals Knowledge Platform (Web Page, 2006) <https://sustainabledevelopment.un.org/index. php?page=view&type=400&nr=555&menu=35>.

4 Michelle Fernando, ‘Children’s Direct Participation and the Views of Australian Judges’ (2013) 92 Family Matters 41, 41–2.

5 The NSW Youth Advisory Council (YAC) advises the NSW Government on issues that are relevant to young people across the state.

Its membership is open to all children and young people aged 12–24 years living NSW:

see ‘About the Youth Advisory Council’, Office of the Advocate for Children and Young People (Web Page) <https://www.acyp.nsw.gov.au/ engage/youth-advisory-council-yac#:~:text =The%20NSW%20Youth%20Advisory%20 Council,of%20age%20residing%20in%20NSW>.

6 The Newcastle Youth Council provides the City of Newcastle with strategic advice and includes young people aged 15–25 years: see ‘Youth Council’, City of Newcastle (Web Page) <https://www.newcastle.nsw. gov.au/community/community-services/ youth-council>.

7 The Ministerial Youth Advisory Council provides advice to the Minister for Youth Matters and comprises people aged 12–25 years: see, ‘Ministerial Youth Advisory Council’, Government of Western Australia (Web Page) <https://dlgc.communities.wa.gov. au/AboutUs/Pages/Ministerial-Youth-Advisory-Council.aspx>.

8 This article defines a child as aged under 18 years. It recognises however, that children have varied capacities and that a child’s capacity to participate and contribute in different forums will vary and will reflect the particular context and child’s level of maturity and development.

9 Jan Mason and Elizabeth A Watson, ‘Researching Children: Research on, with, and by Children’ in Asher Ben-Arieh et al (eds), Handbook of Child Well-Being: Theories, Methods and Policies in Global Perspective (Springer, 2014) (‘Handbook of Child Well-Being’); Priscilla Alderson, ‘Children as Researchers’ in Pia Christensen and Allison James (eds), Research With Children: Perspectives and Practices (Routledge/Taylor & Francis, 2008) 276–90.

10 Anne Graham, Mary Ann Powell and Nicola Taylor, ‘Ethical Research Involving Children: Putting the Evidence into Practice’ (2015) 96 Family Matters 23, 23.

11 Ibid; Mary Ann Powell et al, International Literature Review: Ethical Issues in Undertaking Research with Children and Young People (Report, March 2012) <https://childethics. com/wp-content/uploads/2013/09/Powellet-al-2012.pdf> (‘Ethical Issues in Undertaking Research with Children and Young People’); Australian Psychological Society, Ethical Guidelines for Working with Young People (Guidelines, 2018); Shanon K Phelan and Elizabeth Anne Kinsella, ‘Picture This... Safety, Dignity, and Voice—Ethical Research with Children: Practical Considerations for the Reflexive Researcher’ (2013) 19(2) Qualitative Inquiry 81.

12 National Health and Medical Research Council, National Statement on Ethical Conduct in Human Research 2007 (Updated 2018) (Report, 2018) 65 (‘National Statement on Ethical Conduct in Human Research’).

13 Graham, Powell and Taylor (n 10) 26; Deborah H Gruenfeld et al, ‘Power and the Objectification of Social Targets’ (2008) 95(1) Journal of Personality and Social Psychology 111; Sonja Grover, ‘Why Won’t They Listen to Us? On Giving Power and Voice to Children Participating in Social Research’ (2004) 11(1) Childhood 81, 89.

14 Imelda Coyne, ‘Research with Children and Young People: The Issue of Parental (Proxy) Consent’ (2010) 24(3) Children & Society 227, 234 (‘Issue of Parental (Proxy) Consent’); Imelda Coyne, ‘Accessing Children as Research Participants: Examining the Role of Gatekeepers’ (2010) 36(4) Child: Care, Health and Development 452, 454 (‘Role of Gatekeepers’).

15 See, eg, National Statement on Ethical Conduct in Human Research (n 12) 9–12.

16 Anne Graham and Robyn Fitzgerald, ‘Children’s Participation in Research: Some Possibilities and Constraints in the Current Australian Research Environment’ (2010) 46 Journal of Sociology 133, cited in Ethical Issues in Undertaking Research with Children and Young

Human research ethics review committees are called upon to consider and address these sensitive and complex issues. When conducting research, there is a great deal at stake for children, not only in terms of navigating these significant and sometimes delicate relationships, but with regard to whether or not children ultimately may or may not participate in certain research activities or types of research. This is why it is crucial that children and young people are accorded the right and opportunity to participate in all stages of research design, review and conduct. In noting the spirit of the CRC, there can be little argument that research profoundly impacts on the lives of children and young people in a myriad of ways. On this basis, children and young people should be recognised as an essential and equal stakeholder group, who should be represented and included by right in all relevant research processes which impact on them, and not excluded, rendered silent, or relegated to passive participants or mere objects of research. Research governance, policies and guidelines should enable children’s participation in all stages of research and must work to address the power differentials children face and the structural impediments that continue to lock children out of key research processes.

The voices and contributions of children and young people in research ethical review processes specifically are largely non-existent. Typically, children’s voices and the opportunity for children and young people to make decisions in research occurs at the back-end of the research process, namely when children are asked to either consent or assent to participation in a research study or research activity.

However, even within this context, children’s voices and their agency are still often eclipsed or simply supplanted by that of their parents or guardians. This occurs because the prevailing paradigm of research ethics is one that tends to assume that children are unable to fully understand and consent to research activities, and that parents are better placed (and perhaps have the right) to evaluate the risks and benefits of research and make decisions on behalf of children.14 This paradigm is derisive of children and young people’s autonomy as social actors.

Is this gap in children’s rights ethical and justifiable? Does the omission to involve children in research ethics review as a matter of course undercut the very spirit of the CRC? Why is it deemed acceptable to absent children and young people from research ethics and to diminish their role in decision-making in research that involves and impacts on them, and often does so in very direct, real and terribly profound ways? This seems entirely unacceptable, unfair and adult-centric. Not only does this situation run contrary to the spirit of the child’s right to be heard and for children to be enabled to participate equally in society, particularly in areas that impact upon their lives, but it flagrantly ignores the core pillars and values of ethical conduct in research that have long been articulated in research ethics guidelines around the world, notably, that human research must be conducted always with due consideration to the fundamental principles of care, respect and justice.15 Processes of research ethics review are surely themselves not exempt from these principles.

The likely simple answer as to why children and young people are not treated with respect and are denied access to participation in research ethics review processes is that human research ethics committees, research governance and research institutions are stuck in a discourse that promotes children and young people’s vulnerabilities, rather than their capacities and agency.16 Perhaps also at fault, is a deeply entrenched culture of risk aversion, which is characteristic of many ethics committees and research institutions.17 iii The

Solution—Promoting Children’s Agency and the Right to Be Heard in Research

The solution to the problem identified in this paper, is actually very simple—we must involve children and young people in research ethical review processes.18 This must be authentic and not be tokenistic.19 Researchers should not view children and young people as ‘other’ to adults.20 In Australia, the law recognises that children and young people have a right to make decisions for themselves when they have ‘sufficient understanding and intelligence to enable him or her to understand fully what is being proposed.’21 Indeed, children as young as 10 years of age in Australia and in some other countries around the world may be deemed to have sufficient capacity to be held criminally liable for their actions and decisions.22 The capacity of children to make their own decisions in appropriate circumstances is recognised in many situations and is embedded and protected in law.23 Decision-making by children and

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young people in research should be no exception. Research in many fields, including child development and psychology, has confirmed that given the right circumstances with appropriate supports in place, many children are highly capable, can make good decisions and can meaningfully contribute throughout society.24 The youth of today’s world should be permitted, encouraged and enabled to exercise their judgment and world views in the ethical review of research—after all, this research will likely impact on their lives more than it will impact those of any other group in society.

The responsibility is on adults, researchers and institutions to acquire the necessary skills, knowledge and means to facilitate the inclusion of children and young people in research. 25 This is consistent with an increasing, albeit slow move, to engage children more generally in participatory and action methods of research. 26 However, a quick survey of the composition of human research ethics committees across Australia in universities, government and other agencies (and the situation is much the same in many overseas jurisdictions) clearly reveals that few research ethics committees directly involve children and young people in their processes and decision-making. Most often, researchers or other professionals who are deemed to be child ‘experts’ are tasked with representing children and by proxy charged with placing children’s views and needs forward. While undoubtedly experts in their fields, these adults are not children, they simply cannot evaluate research, its risks and its benefits—its meaning and significance, through the lens and experiences of a child or young person in this moment in time, only children and young people can do this for themselves. 27 Importantly, it must also be acknowledged that the views and experiences, and voices of children and young people, are not homogenous—children’s voices are widely diverse and not unitary. 28 As some researchers have suggested, the use of child-led and oriented ethics review can accommodate and acknowledge the strengths, expertise and capacities of children, and can provide a valuable contribution to adult understandings of ethical and governance issues that affect children.29 Moreover, automatically positioning children as vulnerable is problematic as it pre-frames the way research can be approached and can limit research output more generally by restricting access to child-participants.30 Involvement of children and young people as full and equal participants in research ethics review processes would bring specificity, expertise and knowledge to ethics committees adjudicating on child relevant research.31 The result would be more ethical, child sensitive and child-centered research.32 Children and young people have the right to shape research agendas and inform the outcomes of research. Research impacts on every aspect of children and young people’s lives. For example, why should we allow researchers to conduct legal and justice related research that will influence how laws, legal processes and justice for children and young people takes form and is delivered, without allowing children and young people a voice in shaping this research? Legal research provides a particularly timely example for consideration in this discussion. Now more than ever before, all breeds of law and justice related research utilise empirical and interdisciplinary methods of research to drive law and policy reform. Often such research will involve stakeholders in various ways, be it via surveys, interviews, field observations or through experimental design. A great deal of this research has the potential to directly, or at least indirectly, impact on children and young people’s freedoms, their interaction with the law and legal processes, their rights and responsibilities, and relationships with others in society. Is it not a matter of justice and fairness that children and young people should be involved in the review and moulding of this type of research, which clearly has the potential to impact on every aspect of how they live and experience their lives?

This role is different to, and should be distinguished from, that of children and young people who are involved in research as participants or subjects of research.

Ethical review committees have long been recognised as the gate-keepers of research, they act as society’s conscience and as the barometer of societal standards, expectations and future aspirations. Why should generations of young people and their views be excluded from this key formative societal role? iv

A Possible Shift in Approach to Rectify the Situation

So, how can we genuinely involve and support children and young people in research ethical review processes? Navratil et al suggest that one effective strategy

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People (n 11) 47; Campbell (n 2) 32, 38–40; Mary Ann Powell et al, ‘Sensitive Topics in Social Research Involving Children’ (2018) 21(6) International Journal of Social Research Methodology 647, 649; Mary Ann Powell et al, ‘Children’s Participation in Research on Sensitive Topics: Addressing Concerns of Decision-makers’ (2020) 18(3) Children’s Geographies 325, 326.

17 Campbell (n 2) 42; Bernie Carter, ‘Tick Box for Child? The Ethical Positioning of Children as Vulnerable, Researchers as Barbarians and Reviewers as Overly Cautious’ (2009) 46(6) International Journal of Nursing Studies 858.

18 See Campbell (n 2); Carter (n 17) 858; Coyne, ‘Issue of Parental (Proxy) Consent’ (n 14) 234; Mary Ann Powell and Anne B Smith, ‘Ethical Guidelines for Research with Children: A Review of Current Research Ethics Documentation in New Zealand’ (2006) 1(2) Koˉtuitui: New Zealand Journal of Social Sciences Online 125; K Stalker et al, ‘Ethical Issues in Social Research: Difficulties Encountered Gaining Access to Children in Hospital for Research’ (2004) 30(4) Child: Care, Health and Development 377, cited in Ethical Issues in Undertaking Research with Children and Young People (n 11) 5; Coyne, ‘Role of Gatekeepers’ (n 14) 454.

19 Carter (n 17) 863; Coyne, ‘Role of Gatekeepers’ (n 14) 454.

20 Carter (n 17) 863.

21 Gillick v West Norfolk AHA (1986) AC 112 (HL), approved by the High Court of Australia in Department of Health and Community Services (NT) v JWB and SMB (‘Marion’s Case’) (1992)106 ALR 385, 386 (Mason CJ, Dawson, Toohey and Gaudron JJ).

22 Crimes Act 1914 (Cth) ss 4M, 4N; Criminal Code 2002 (ACT) ss 25, 26; Children (Criminal Proceedings) Act 1987 (NSW) s 5; Criminal Code Act 1983 (NT) s 38(1)–(2); Criminal Code Act 1899 (QLD) ss 29(1)–(2); Young Offenders Act 1993 (SA) s 5; Criminal Code Act 1924 (TAS) s 18(1)–(2); Children, Youth and Families Act 2005 (VIC) s 344; Criminal Code Act Compilation Act 1913 (WA) s 29.

23 Minors (Property and Contracts) Act 1970 (NSW) s 49; Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 6; Marion’s Case (n 21). The age of consent for sexual interactions in ACT, NSW, NT, QLD, VIC and WA is 16 years old: Crimes Act 1900 (ACT) s 55; Crimes Act 1900 (NSW) s 66C; Criminal Code Act 1983 (NT) s 127; Criminal Code Act 1899 (QLD) s 215; Crimes Act 1958 (VIC) s 45; Criminal Code Act Compilation Act 1913 (WA) s 321. The age of consent for sexual interactions in SA and TAS is 17 years old: Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Code Act 1924 (TAS) s 124. Regarding medical treatment, the general position in Australia is that an individual under 18 years is legally regarded as a minor.

Although, NSW and SA have laws recognising a child’s ability to consent to medical treatment at a younger age. Consent to Medical Treatment and Palliative Care Act 1995 (SA) s 6 provides that a person over 16 years may consent to medical treatment as validly and effectively as an adult. Minors (Property and Contracts) Act 1970 (NSW) s 49 recognises consent by a child 14 years or older, and by parents when a child is 16 years or younger, regarding assault and battery claims on medical or dental treatment.

24 Gerison Lansdown, Every Child’s Right to be Heard: A Resource Guide on the UN Committee on the Rights of the Child General Comment No.12 (Report, 2011) 4, 6–7, 10–11, 23, 116, 123, 133.

25 Carter (n 17) 863.

26 Carter (n 17) 863; Mary Kellett, ‘Children as Active Researchers: A New Research Paradigm for the 21st Century?’ (Review Paper, NCRM/003, ESRC National Centre for Research Methods, 22 July 2005) <http://

eprints.ncrm.ac.uk/87/1/MethodsReviewPaperNCRM-003.pdf>; Mary Kellett, ‘Small Shoes, Big Steps! Empowering Children as Active Researchers’ (2010) 46(1–2) American Journal of Community Psychology 195.

27 Campbell (n 2) 42.

28 Carter (n 17) 863; Coyne, ‘Role of Gatekeepers’ (n 14) 454.

29 Carter (n 17) 859; Judith Navratil et al, ‘Involving Youth Voices in Research Protocol Reviews’ (2015) 15(11) American Journal of Bioethics 33, 33.

30 Carter (n 17) 859.

31 Powell and Smith (n 18) 136.

32 Diverse strategies are increasingly being used to understand the ethical issues from children’s perspectives, such as the use of children’s reference groups that help unpack such issues. These strategies are very welcomed and provide important insights from children’s perspectives. However, they still fall short in that they occur after the critical stage of ethical review. See, eg, Tim Moore, Debbie Noble-Carr and Morag McArthur, ‘Changing Things for the Better: the Use of Children and Young People’s Reference Groups in Social Research’ (2016) 19(2) International Journal of Social Research Methodology 241, 249.

33 Navratil et al (n 29) 33.

34 Ibid 33. For other examples of models involving young people in advisory groups, boards, etc, see The University of Sydney Matilda Centre, ‘PREMISE’, Our Research (Web Page) <https://www.sydney.edu.au/matilda-centre/ our-research/premise.html>; ‘Youth Advisory Board (YAB)’, Highlands LLEN (Local Learning and Employment Networks (Web Page, 2019) <https://www.highlandsllen.org/networksevents/youth-advisory-board/>; Southern Cross University, ‘Co-designing Research with Children and Young People’, Centre for Children and Young People (Web Page) <https://www. scu.edu.au/centre-for-children-and-youngpeople/our-team/co-designing-with-childrenand-young-people/>; Office of the Advocate for Children and Young People (ACYP), ‘About the Youth Advisory Council’, Youth Advisory Council (YAC) (Web Page) <https:// www.acyp.nsw.gov.au/engage/youth-advisory-council-yac>; ACT Government, ‘Youth Advisory Council’, Youth (Web Page) <https:// www.communityservices.act.gov.au/youth/ youth-interact/youth-advisory-council>. In New Zealand: Manaakitia a Taˉ tou Tamariki, Office of the Children’s Commissioner, ‘Our Role and Purpose’, About Us (Web Page) <https://www. occ.org.nz/about-us/our-role-and-purpose/>.

In the United Kingdom: National Children’s Bureau, ‘Involving Children & Young People in Research’, What We Do (Web Page) <https:// www.ncb.org.uk/what-we-do/we-identify-issues-affecting-children-young-people/ involving-children-young-people>. In the United States: UPMC, ‘Youth Research Advisory Board (YRAB)’, UPMC Children’s Hospital of Pittsburg (Web Page, 2020) <https://www. chp.edu/research/research-excellence/teens/ yrab>; Making Caring Common Project, ‘Youth Advisory Board’ (Web Page, 2020) <https:// mcc.gse.harvard.edu/research-initiatives/ youth-advisory-board>.

35 Judith Navratil (n 29) 34.

36 Shepherd Zeldin, Julie Petrokubi and Carole MacNeil, ‘Youth-Adult Partnerships in Decision Making: Disseminating and Implementing an Innovative Idea into Established Organizations and Communities’ (2008) 41(3) American Journal of Community Psychology 262, 263; Michael D Burroughs and Nikolaus J Barkauskas, ‘Educating the Whole Child: Social-Emotional Learning and Ethics Education’ (2017) 12(2) Ethics and Education 218, 224.

37 Campbell (n 2) 47.

is to formalise youth representation within review committees or boards by incorporating a Youth Research Advisory Board or similar body into its formal processes.33 For example, the Division of Adolescent & Young Adult Medicine at the Children’s Hospital of Pittsburgh has a group of 15 to 24-year-old adolescents and young adults that meet regularly to provide guidance to researchers about making their studies acceptable for children, adolescents, and young adults.34 These young members are trained in ethics review processes and their role is to review recruitment materials, survey instruments and study procedures, and provide feedback based on the actual concerns of adolescents and young adults.35 This type of model recognises that children and young people view and experience the world in ways that are different to adults and could easily be adapted to include even younger children.36 Children and young people’s perspectives cannot be supplanted by that of adults or translated through the eyes of adults and their agenda—whether such adults are experts or not.

The most effective approach or precise model to be used will vary depending on the context, culture and nature of a particular human research ethics committee.

However, the challenge is the same and requires that children and young people are embedded in ethical review processes in ways that treat them as equal to other members who are involved in such processes. The involvement of children and young people must not be disconnected or be peripheral to the process. Children and young people must be allowed to have a voice but in ways that are emotionally, intellectually and politically safe.

We must not lose sight of the fact that children and young people have expertise about children and young people because of who they are and their lived experiences. Quality ethical research that relates to children and young people should tap into this expertise, both as an imperative and as a matter of principle— we need the insights of our children and young people to drive future approaches to the ethical conduct of research. We need to challenge some of the cultural views that society continues to hold about children and young people that act to restrain and curtail the leadership youth can assume in society. While children and young people need protection, justice demands that they also be recognised as resilient and capable autonomous social agents who are equal to adults.37 These values and reality should be enshrined in guidelines for the ethical conduct of research involving children and young people with clear requirements articulated to promote and shape threshold levels of, and best practice approaches to consultation with, and participation of children in all stages of research design and evaluation.

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‘Children’s Rights and Media Wrongs’ in the Digital Age Australian Youth Justice Contexts

Faith Gordon*

*

Dr Faith Gordon is a Senior Lecturer at the ANU College of Law and an Associate Research Fellow of the Information Law and Policy Centre at the Institute of Advanced Legal Studies, London. Faith established the International Youth Justice Network in 2016 and is also co-founder of the Australian and New Zealand Society of Criminology’s thematic group on ‘Children and Young People in the Criminal Justice System’. Her research has been referred to in the Northern Ireland High Court, the UK Court of Appeal and has been referenced by the United Nations Committee on the Rights of the Child.

1 Sheila Brown, Understanding Youth and Crime: Listening to Youth? (Open University Press, 2nd ed, 2005) 50.

2 Stanley Cohen, Folk Devils and Moral Panics: The Creation of the Mods and Rockers (MacGibbon and Kee, 1972).

3 Bob Franklin, ‘Children’s Rights and Media Wrongs: Changing Representations of Children and the Developing Rights Agenda’ in Bob Franklin (ed), The New Handbook of Children’s Rights: Comparative Policy and Practice (Routledge, 2002) 15.

4 See Colin Hay, ‘Mobilization through Interpellation: James Bulger, Juvenile Crime and the Construction of a Moral Panic’ (1995) 4(2) Social and Legal Studies 197.

5 (European Court of Human Rights, Grand Chamber, Application No 24724/94, 16 December 1999).

6 [1999] IX Eur Court HR 111.

7 [2019] NSWSC 766 (‘Voller’).

i Introduction

‘Mass media, from their inception, have been closely associated with mass anxiety about young people’.1 As Sheila Brown observes, for centuries young people have been the focus of ‘mass anxiety’ on the part of adults. Stanley Cohen’s theorisation of ‘folk devils’ and ‘moral panics’ demonstrates how this anxiety often fuels the creation of reactive policies and practices by police and other criminal justice agencies. 2 In 2002, Bob Franklin wrote an insightful chapter entitled: ‘Children’s Rights and Media Wrongs: Changing Representations of Children and the Developing Rights Agenda’.3 In this chapter, Franklin reflects on the punitive reactions directed towards children in the 1990s in the United Kingdom, particularly following the death of two-year-old James Bulger and the sentencing of two ten-year-old boys, Robert Thompson and Jon Venables, for his murder. This period represented a notable ‘punitive turn’ in reactions, policies, legislation and approaches directed towards young people.4 Notably, the unfair trial of Venables and Thompson was acknowledged on the international human rights stage by the European Court of Human Rights in T v United Kingdom5 and V v United Kingdom.6 In contemporary times, with the ongoing advancements in technology and use of social media platforms, concerns have been raised in relation to what has been described as online ‘risky behaviours’ on the part of young people, with great attention given to ‘sexting’ and ‘cyberbullying’. Yet, key questions exist in relation to the rights of children and young people in conflict with the law who are shamed and demonised in the online sphere and harmed by such processes. It seems apt to borrow the phrase ‘children’s rights and media wrongs’ for the first part of the title of this paper, which will consider key questions surrounding the negative impacts of the media’s reporting on children in youth justice contexts in Australia.

This paper builds on Franklin’s work nearly two decades ago to explore ‘children’s rights’ and ‘media wrongs’ through the contemporary lens of the digital age, as youth justice systems now function in a world dominated by social media platforms. As my ongoing research is demonstrating, the digital age presents additional and quite specific challenges for young people, their advocates and judicial officers. This paper will refer to the media representations of children in youth justice systems in Australia and will specifically utilise the media’s representation of the Don Dale Youth Detention Centre in the Northern Territory (‘NT’). This paper considers the subsequent persistent targeting of one young person, Dylan Voller, on online mainstream media platforms and social media outlets. It argues that the recent judgment in Voller v Nationwide News Pty Ltd (‘Voller’)7 shines a light onto

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the long-lasting consequences of digital shaming and defamation on young people in youth justice contexts in Australia and those who have returned to their community, facilitated by media outlets and social media platforms. The paper concludes by outlining the need for principled reform in this area, with the need for the law, policies and practices to keep up with advances in technology and its use. In addition, this paper identifies the need for accountability on the part of the community for their social media use, as well as a cultural shift away from punitiveness to valuing the benefits of community development and social justice approaches when young people come into conflict with the law.8 ii

Youth Justice Contexts in Australia

Youth justice systems in Australia have been described as undergoing a series of ‘crises’. In July 2016, a significant investigatory report by the ABC’s Four Corners, titled ‘Australia’s Shame’, exposed the extent of the crisis in youth justice in the NT.9 It contained confronting footage and imagery of an Indigenous child, Dylan Voller, who was forcibly restrained, strapped to a restraint chair and hooded at the Don Dale Youth Detention Centre.10 This imagery, along with other evidence, recorded the extreme physical violence and psychological abuse directed towards children and young people in juvenile detention settings. The Royal Commission into the Protection and Detention of Children in the Northern Territory was set up to investigate such treatment and later published its findings confirming that, over the past decade, children detained in the NT had been under treatment and prison regimes which clearly breached Australia’s international human rights obligations and several domestic laws.11 Significant concerns about the state of children’s rights in Australia have also been highlighted in a national NGO report to the United Nations Committee on the Rights of the Child (‘UN Committee’) published by the Australian Child Rights Taskforce in November 2018.12 The report drew significant attention to Australia’s serious violations of children’s rights in detention.13 Similar serious concerns were noted in the latest report of the UN Committee, following their examination of Australia’s children’s rights record in September 2019.14 It is evident that Australia’s lack of national strategy to ensure the implementation of appropriate protections of children’s rights, coupled with a lack of political will to see much-needed change,15 is having a damaging effect on the lives of children and young people and impacting upon their ability to fully enjoy and engage with their rights under the United Nations Convention on the Rights of the Child (‘CRC’).16 iii

Children’s Rights in the Digital Age

Protections for children and young people exist within the international children’s rights legal framework, which outlines clear requirements for states parties to ensure the protection of children and young people from stigmatisation and further harm from media reporting and the criminal justice system itself. The CRC states that ‘[e]very child alleged as or accused of having infringed the penal law has at least the following guarantees: … To have his or her privacy fully respected at all stages of the proceedings’.17 The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’) outline the need for a child’s ‘right to privacy’ to be ‘respected at all stages’ of the criminal justice process, ‘in order to avoid harm being caused … by undue publicity or by the process of labelling’ and provide that ‘no information that may lead to the identification of a juvenile offender shall be published’.18 Social media is explicitly referred to in the recently published UN Committee’s General Comment No 24 (2019) on Children’s Rights in the Child Justice System.19 It reinforced that ‘[t]he Committee encourages the use of non-stigmatizing language relating to children alleged as, accused of or recognized as having infringed criminal law’20 and called for ‘lifelong protection from publication regarding crimes committed by children’. 21 The UN Committee stated that ‘[t]he rationale for the nonpublication rule … is that publication causes ongoing stigmatization’, noting the long term consequences including the likelihood of ‘a negative impact on access to education, work, housing or safety’, which ‘impedes the child’s reintegration and assumption of a constructive role in society’. 22 Further, the UN Committee called

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8 See Chris Cunneen, Rob White and Kelly Richards, Juvenile Justice: Youth and Crime in Australia (Oxford University Press, 5th ed, 2015) ch 3.

9 See ‘Australia’s Shame’, Four Corners (Australian Broadcasting Corporation, 2016) <https://www.abc.net.au/4corners/ australias-shame-promo/7649462>.

10 Ibid.

11 Royal Commission into the Protection and Detention of Children in the Northern Territory: Findings and Recommendations (Report, 17 November 2017).

12 See Australian Child Rights Taskforce, The Children’s Report: Australia’s NGO Coalition Report to the United Nations Committee on the Rights of the Child (Report, November 2018).

13 Ibid ch 9.

14 Committee on the Rights of the Child, Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Australia, UN Doc CRC/C/AUS/CO/5–6 (1 November 2019).

15 One such recent example is the debate surrounding raising the minimum age of criminal responsibility in Australia to 14.

16 Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) (‘CRC’). For further discussion, see Faith Gordon and Noam Peleg, ‘“The Australian Government is Not Listening”: How our Country is Failing to Protect Its Children’, The Conversation (online, 8 October 2019) <https://theconversation.com/ the-australian-government-is-not-listeninghow-our-country-is-failing-to-protect-itschildren-124779>.

17 CRC (n 16) art 40(2)(b). Article 16 also provides that ‘[n]o child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation’ and that ‘[t]he child has the right to the protection of the law against such interference or attacks’.

18 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA Res 40/33, UN GAOR, UN Doc A/Res/40/33 (29 November 1985) r 8 (‘The Beijing Rules’).

19 Committee on the Rights of the Child, General Comment No 24 (2019) on Children’s Rights in the Child Justice System, UN Doc CRC/C/GC/24 (18 September 2019) [70] (‘General Comment No 24’).

20 Ibid [7].

21 Ibid [70].

22 Ibid.

23 Ibid [8].

24 See also Faith Gordon, Children, Young People and the Press in a Transitioning Society: Representations, Reactions and Criminalisation (Palgrave Macmillan, 2018) (‘Children, Young People and the Press in a Transitioning Society’).

25 Faith Gordon, ‘Preserving Lifelong Anonymity Orders into Adulthood: New Challenges for the Courts in the Age of Social Media’ (2019) 41(4) Journal of Social Welfare and Family Law 491.

26 Ibid 493.

27 See Faith Gordon, ‘Pre-Charge Identification of a Minor and Article 14 of the ECHR: Judgment In the Matter of an Application by JKL (A Minor)’ (2020) 71(3) Northern Ireland Legal Quarterly (advance).

28 Voller (n 7) [190].

29 Gordon, Children, Young People and the Press in a Transitioning Society (n 24) 144.

30 See General Comment No 24, UN Doc CRC/C/GC/24 (n 19).

for lifelong protections from identification by the mainstream media and on social media platforms. 23 iv

Media Wrongs in the Digital Age

As the opening quotation of this paper highlights, ‘media wrongs’, such as the demonisation of children and young people by mainstream media outlets, have long been a present feature in western societies. 24 With technological advancements, new issues now exist in the digital age, with ‘below the line’ commentary, content and information being shared, occasionally in contravention of suppression orders/life-long anonymity orders. 25 This poses the question as to whether such orders are an outdated and ineffective means in the digital age of protecting the identities of those accused or those who are victims. 26 Further, the permanency of imagery and details which have been screenshotted and reposted can pose considerable issues and social media companies have been reported as slow to act to remove content. 27 The impact of such commentary is evident in the experience of Dylan Voller, now 22 years old, who draws on his own experiences to advocate on behalf of other children currently imprisoned in the Don Dale Youth Detention Centre. Dylan Voller became the target of bullying and false commentary online, which included defamatory, unfounded accusations that he had attacked a Salvation Army officer who visited him while in detention. To address these issues, legal proceedings were commenced by Dylan Voller against three media organisations for defamation—Nationwide News Pty Ltd, Fairfax Media Publications Pty Ltd and Australia News Channel Pty Ltd—relating to comments and unfounded allegations made by members of the public on the media organisations’ public Facebook platforms.

In a landmark decision handed down on 24 June 2019, the Supreme Court of New South Wales held that in relation to defamation liability, media companies are the publishers of comments posted by members of the public on their public Facebook pages. 28 Rothman J’s decision in this case highlights the need for organisations to review their use of community rules and how they monitor comments created by third parties. However, moderation practices and discretion appear to vary considerably from platform to platform.

Interviews I have conducted with editors and journalists have routinely demonstrated that they describe ‘mak[ing] a judgement call’, ensuring that content ‘plays to the galleries’. 29 Decision-making powers on whether to report and publish, and also on how much detail and imagery to present, often rest in the hands of a journalist and/or editor to consider on an individual case-by-case basis. As a direct result, children’s and young people’s privacy and welfare are often overlooked or not given due weight. Dylan Voller’s case has further shone a direct light onto one significant, unaddressed issue by policymakers—the discretion that rests at the hands of those creating online content and moderating social media platforms.

On one hand, while freedom of expression should not be curtailed, if what is being expressed or discussed is harmful or incites hatred or violence towards others, it needs to be removed from public platforms as its presence has the potential to negatively impact a child or young person’s ‘access to education, work, housing or safety’.30 v

Calls for Rights-Based Reforms

Like many other aspects of technological advancement, the law clearly lags behind the growth in relation to social media platforms and their usage, which can, as it did in the case of Voller, have very long-lasting and damaging consequences. There has long been the need for urgent principled reform to address ‘media wrongs’ and ensure that children’s rights are promoted, protected and upheld. As outlined, the posting of imagery and information online and reposting of screenshot imagery has facilitated the digital permanency of images and identities of children and young people in conflict with the law, which further perpetuates harm in many instances over a period of many years. Thus, the digital age presents additional challenges with multiple layers of concern surrounding the privacy rights, safety and reputations of children and young people in the digital age.

Such online harms were not originally envisaged in 1989 when the CRC was drafted. The UN Committee’s current focus on children’s rights in the digital age

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31 Committee on the Rights of the Child, Draft General Comment No 25: Children’s Rights in Relation to the Digital Environment, UN Doc CRC/C/GC/25 (13 August 2020).

32 See Faith Gordon, ‘Media Regulation: Strategies to Mitigate the Violence Perpetrated against Children who are Publically “Named and Shamed”’ in Wendy O’Brien and Cedric Foussard (eds), Violence Against Children in the Criminal Justice System: Global Perspectives on Prevention (Routledge, 2020) 38.

33 See Brigit Morris and Máire M Davies, ‘Can Children’s Privacy Rights be Adequately Protected through Press Regulation? What Press Regulation Can Learn from the Courts’ (2018) 10(1) Journal of Media Law 92.

34 See ‘Are Social Media Companies Doing Enough to Protect Children?’, CBBC Newsround (online, 2 February 2019) <https:// www.bbc.co.uk/newsround/47072623>.

35 Faith Gordon, ‘Social Media Companies Have a Duty to Protect Children’, Huffington Post (Blog Post, 9 May 2017) <http:// www.huffingtonpost.co.uk/faith-gordon/ social-media-companies-ha_b_16485240. html>.

36 International case law involving young people in conflict with the law, such as R v William Cornick [2014] EWHC 3623 (QB), indicates that there are continuous tensions existing between what is in the ‘public interest’ and what is in the best interests of children and young people.

37 Faith Gordon, ‘Landmark Decision Defamation Case in Australia Holds Media Companies Liable for Facebook Comments’, Information Law and Policy Centre (Blog Post, 18 September 2019) <https://infolawcentre.blogs.sas.ac.uk/2019/09/18/ landmark-decision-defamation-case-in-australia-holds-media-companies-liable-for-facebook-comments-dr-faith-gordon/>.

38 See Gordon, Children, Young People and the Press in a Transitioning Society (n 24).

does provide an opportunity for civil society and policymakers to consider what issues exist and what reforms are needed in providing the impetus internationally for children’s rights-based reforms in the digital age.31 Concerns about this incomplete protection offered by the regulatory frameworks and the law have consistently emerged as themes in the empirical research I have conducted over the past decade.32 Traditionally, the regulation of the mainstream media and enforcement of regulatory guidelines have lagged behind developments in law,33 as well as new and emerging forms of abuse and harm. Further to this, children and young people have little means to challenge such wrongdoing and discriminatory practices in the digital sphere and are often unable to seek redress.

As outlined, while the public identification of children and young people in conflict with the law expressly contravenes international children’s rights law, part of the challenge in safeguarding children and young people from such breaches, wrongs and harm, is the lack of national legal and regulatory guidelines within Australia and internationally to regulate the mainstream media and social media platforms. Current debates and discussions in relation to accountability have largely focused on calls for social media companies to take more responsibility for protecting children from disturbing content.34 However, the experiences of children and young people in conflict with the law appear marginalised or excluded within these current debates. Social media companies have a duty to protect all children and young people, recognising the particular circumstances and contexts of their lives and how these may position them in uniquely vulnerable circumstances.35 It is clear that there is much work that needs to be done to design and implement appropriate regulatory frameworks that will uphold and protect children’s rights. The legal protections for children and young people are also incomplete, as evident in the many cases in which children’s rights have been trumped by judicial discretion regarding public identification ‘in the public interest’.36 An often key element omitted in discussions is the impact of community forums on social media and ‘below the line’ commentary on mainstream media platforms online.

As the case of Voller demonstrates, for legal decision-makers it is challenging to apply the current laws in Australia to new technologies, such as the usage of social media platforms in the digital age. Further, redress sought after harm has occurred, through, for example, complaints processes via existing regulatory bodies or the courts, may do little to address the consequences and impacts of such harm. vi Conclusion

In the digital age, legal proceedings and youth justice systems now function in a world dominated by social media platforms. This paper has built on Franklin’s work nearly two decades ago to explore the themes of ‘children’s rights’ and ‘media wrongs’ through the contemporary lens of the digital age. Media portrayals of young people in youth justice systems in Australia, with specific reference to the Don Dale Youth Detention Centre and the sustained persistent targeting of one young man, Dylan Voller, shine a light onto the long-lasting consequences for the well-being and future prospects of young people who become the victims of ‘media wrongs’.37 As the case of Voller demonstrates, community reactions posted on social media platforms in the form of shaming, threats and unfounded allegations, can have extremely damaging consequences,38 yet policy interventions fail to prevent such harms or to provide appropriate redress when harm does occur.

As this paper has illuminated, the digital age presents additional and quite specific challenges for young people in conflict with the law, their advocates, as well as for policymakers and judicial officers navigating new terrain. There is a clear need for principled reform in this area of online harm and shaming, with calls for the law, policies and practices to keep up with the ever-evolving advances in technology, particularly when there are new ways utilised to target, shame and harm young people. However, it is only when such reforms are coupled with a collective community change that shifts in the emphasis away from calls for punitive reactions to more community development and social justice responses can occur. It is not until we see these actions taken collectively that we may achieve more adherence to the spirit of the principles of the international children’s rights framework which have long noted the extensive harms and damage caused by the processes of labelling.

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Editorial Team

Marie Veinberg Editor-in-Chief Marie is a penultimate year Science (Biotechnology)/ Laws student, joining Court of Conscience last year as a General Editor. Marie joined the Court of Conscience to learn more about areas of law beyond the standard curriculum and hopes that the hours devoted to this journal will remind her to always keep social justice in mind when practising the law.

Darius Dadgostar Managing Editor (External) Darius Dadgostar is a penultimate year Commerce/ Laws student who is interested in both private and public law because of the ways in which the law can facilitate positive social change and justice. Darius joined the Court of Conscience to further pursue his passions for social justice, human rights, and editing. He hopes to one day become a Justice of the highest Court in the land.

Marie Kambouroglou Managing Editor (Internal) Marie is a 4th year Commerce/Laws student who is passionate about public law, particularly constitutional law. Marie joined the Court of Conscience editorial team to pursue her interest in politics, social justice and contemporary issues in legal academic discourse.

Drew Gillespie Managing Editor (Technical) Drew Gillespie is a 3rd year Arts/Laws student who is interested in economic inequality and civil rights issues. Drew has worked on Issue 14 of the Court of Conscience to apply his desire for precision and meticulousness to the meaningful pursuit of advancing social justice literature.

Emilija Batar General Editor Emilija is a 2nd year Commerce (Financial Technology)/Laws student who is interested in technology law. She joined the Court of Conscience because of her interest in the way in which social justice exists and is evolving in topical contexts.

Vanessa Ha General Editor Vanessa is a 4th year Arts (International Relations and Politics)/Laws student who joined the Court of Conscience editorial team because of her appreciation for legal scholarship and interest in law reform. She hopes to sustain this passion by writing her own journal articles one day.

Uditha Jith General Editor Uditha is a 2nd year Computer Science/Laws student with a love for public and international law. Joining the Court of Conscience editorial team this year served as an ample opportunity for her to share this passion with a wider community, ultimately allowing her to increase her own awareness about confronting social issues and empower others through the thought-provoking material of this edition.

Danielle Pedersen General Editor Danielle is a 3rd year undergraduate Commerce/ Laws student. She is particularly interested in how the law affects women.

Shahrin Shamim General Editor Shahrin is a 2nd year Arts/Laws student who is interested in public and criminal law. Shahrin joined the Court of Conscience editorial team because she is passionate about social justice and wanted to explore this interest through a legal academia lens.

Chelsea Wu General Editor Chelsea is a penultimate year Commerce (Finance)/ Laws student who is interested in a wide range of law, particularly the way in which public policy arguments intertwine with all elements of our law.

Chelsea joined the Court of Conscience editorial team because she wanted to contribute to and learn from a diverse range of legal academia and to improve on her research and editing skills.

Alexander Tanazefti Designer

Desmond Cai General Editor Desmond is a 4th year Commerce/Laws student who joined the Court of Conscience editorial team due to his passion for social justice, particularly in criminal law and Royal Commissions. Desmond hopes to extend this passion in his later career through assisting in policy reform and advocacy.

Samantha Bowen Artist

Portia Ferdinand General Editor Portia is a 4th year Criminology/Laws student who is interested in criminal and administrative law.

Portia joined the Court of Conscience editorial team because she has strong passion for social justice and currently volunteers at the Aboriginal Legal Centre and the Refugee Advice Casework Service.

Court of Conscience Issue 14, 2020 Rights and Representation: Children and the Law

Sanjay Alapakkam 2020 UNSW Law Society Vice President (Social Justice) Justin Song and Sophie Berton 2020 UNSW Law Society Co-Presidents

ISSN 1839-7204 Court of Conscience is published annually by the UNSW Law Society unswlawsoc.org