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Children’s Rights: Australia- Part 2(Final)

  12/30/2013


Consent to Medical Treatment

The age of consent for medical treatment differs across jurisdictions; for example, in Western Australia the age of consent remains at eighteen[29] (the general age of majority in Australia), in NSW and South Australia, however, the age of consent for making decisions regarding medical treatment has been amended by legislation to fourteen and sixteen respectively.[30]
Generally treatment provided to children below the age of sixteen requires the consent of their parents or guardians.  Parents may only consent to treatement that is in the best interests of the child.[31]
In all jurisdictions the consent of the child alone may be sufficient in circumstances where the child has “sufficient understanding and intelligence to enable him or her to understand fully what is proposed” (Gillick test).[32]   In South Australia this test has been modified by statute to be: if the child consents, and (1) the medication practitioner is satisfied that the child is capable of understanding the nature, consequences, and risks of the treatment, and that the treatment is in the best interests of the child’s health and wellbeing; (2) and that this opinion of the medical practitioner is supported by the written opinion of another medical practitioner who has also examined the child.[33]
A parent may not consent to certain treatments of children.  Where a treatment involves major, invasive and irreversible surgery (not for the purpose of curing a malfunction or disease, e.g. sterilization or gender reassignment), neither a child nor a parent may consent and it is necessary to obtain the consent of both the court[34] and the parents.[35]
Children generally may only participate in medical research with the consent of both the child and the parent in circumstances where the research is not contrary to the best interests of the child.[36]

Mortality Rates

In its 2007 report 'The State of the World’s Children’ UNICEF has provided the following statistics on Australia[37] (per 1,000 live births)
Under-5 mortality rate, 2005[38]Infant mortality rate (under 1), 2005[39]Neonatal mortality rate, 2000[40]
653

Financial Support to People with Children

The Federal government provides financial support to people with children (called family assistance).  This financial support includes:
  • Family Tax Benefit Part A – financial assistance;
  • Family Tax Benefit Part B – additional financial assistance to families with one income;
  • Child Care Benefit – financial assistance for child care;
  • Child Care Tax Rebate – tax rebate for working persons incurring child care costs;
  • Baby Bonus – one-off payment to off-set the costs of a new child (including adopted and still born children);
  • Maternity Immunisation Allowance - payment for children aged eighteen to twenty-four months and who are fully immunized or have an approved exemption from immunization;
  • Large Family Supplement – where the applicant has three or more children and receives the Family Tax Benefit for three or more children;
  • Multiple Birth Allowance – applicable for births of three or more children;
  • Double Orphan Pension – additional financial aid to provide assistance to raise children who are orphans;
  • Jobs, Education and Training (JET) Child Care fee assistance – extra help with the cost of approved child care for eligible parents undertaking activities such as work, job search, training, study or rehabilitation as part of an activity agreement, to help them enter or re-enter the workforce.

Education, including Special Needs

Child Care – General

Capital grants for non-profit child care centers and for research into child care centers may be funded by the Federal government.[41]  Child care services are jointly funded by Federal and state/territory governments.[42]
Preschool education is the responsibility of the states and territories, and services are provided by government, community and private providers.  The Australian Government provides some funding for Indigenous preschool services.[43]

Education - General

Australian schooling varies across each state and territory; in general, however, schooling consists of a preparatory year followed by twelve years of primary and secondary school.  In the final year of secondary school (year twelve) students study for a government endorsed certificate that is recognized by all Australian universities and vocational education and training institutions.  School hours are Monday to Friday generally from 9:00am to 3:30pm.[44]
Australia has developed a national curriculum framework across eight “Key Learning Areas”: English, Mathematics, Studies of Society and the Environment, Science, Arts, Languages Other Than English, Technology and Personal Development, Health and Physical Education.[45]
Funding of Australian schools (both public and private) is from both state and territory governments and the Federal Government.[46]  Federal government funding of schools is legislated for four year periods.[47]
State and territory legislation, in general, will govern matters such as: the obligation of the state to provide public education;[48] the compulsory curriculum;[49] compulsory attendance at school and exemption for attendance at certain classes;[50] government schools, including: their establishment[51] and obligation to provide free instruction,[52] their format (such as primary, secondary, for disability children, for advanced children, or focusing on technology or agriculture),[53]secular and religious education,[54] admission[55] and discipline;[56] registration of non-government schools and home schooling;[57] and certificates of education or study to be awarded.[58]

Relevant Legislation

Primary state and territory legislation governing education are as follows:
Australian Capital Territory: Education Act 2004 (ACT); Education Regulation 2005 (ACT).
New South Wales : Education Act 1990 (NSW); Education Regulations 2001 (NSW).
Northern Territory: Education Act (NT); Education (Board of Studies) Regulations (NT), Education (College and School Councils) Regulations (NT).
Queensland: Education (General Provisions) Act 2006 (QLD); Education (General Provisions) Regulation 2006 (QLD); Education (Accreditation of Non-State Schools) Act 2001 (QLD); Education (Accreditation of Non-State Schools) Regulation 2001 (QLD); Education (Capital Assistance) Act 1993 (QLD); Education (Capital Assistance) Regulation 2005 (QLD); Education (Overseas Students) Act 1996 (QLD); Education (Overseas Students) Regulation 1998 (QLD); Education (Queensland Studies Authority) Act 2002 (QLD); Education (Queensland Studies Authority) Regulation 2002 (QLD).
South Australia: Education Act 1972 (SA); Education (Councils - Transitional) Regulations 2001 (SA); Education (Registration of Non-Government Schools) Regulations 1998 (SA); Education Regulations 1997(SA).
Tasmania: Education Act 1994 (Tas); Education Regulations 2005 (Tas); Education Providers Registration (Overseas Students) Act 1991 (Tas); Education Providers Registration (Overseas Students) Regulations 2005 (Tas).
Victoria: Education and Training Reform Act 2006 (Vic); Education and Training Reform Regulations 2007 (Vic).
Western Australia: School Education Act 1999 (WA); School Education Regulations 2000 (WA); Education Service Providers (Full Fee Overseas Students) Registration Act 1991 (WA); Education Service Providers (Full Fee Overseas Students) Registration Regulations 1992 (WA).
Federal: Australian Technical Colleges (Flexibility in Achieving Australia’s Skills Needs) Act 2005 (establishes Australian Technical Colleges for Year 11 and Year 12 students); Student Assistance Act 1973 (Cth) (funds the student financial assistance schemes, ABSTUDY and the Assistance for Isolated Children Scheme); Indigenous Education (Targeted Assistance) Act 2000 (Cth) (legislative basis and appropriates funding for Indigenous education programs); Education Services for Overseas Students Act 2000 (Cth) (regulates the education and training sector’s involvement with overseas students studying in Australia on student visas); Education Services for Overseas Students Regulations 2001 (Cth).

Education - Special Needs

In accordance with the Disability Discrimination Act 1992 (Cth) (DDA) it is unlawful for any person (including a child) to be discriminated against by an educational authority on the basis of a disability.  Educational authority includes: all public and private educational institutions, primary and secondary schools, and tertiary institutions such as “Technical and Further Education” (TAFE),[59] private colleges and universities.  Generally the DDA covers discrimination in the areas of admission, access, and harassment.
Disability Standards for Education 2005 (Cth),[60] made under the DDA, are legal standards applicable to education providers to ensure their compliance with the DDA.  The Standards cover the following areas:
  • enrollment (Part 4);
  • participation (Part 5);
  • curriculum development, accreditation and delivery (Part 6); and
  • student support services (Part 7). 
The Disability Standards for Education require education providers to develop policies and programs that eliminate harassment and victimization. In general, however, neither the DDA nor the Disability Standards for Education Standards require changes to be made where such changes would impose unjustifiable hardship on a person or organization.[62]

Child Labor and Exploitation

Employment of Children

The minimum age of employment and regulation of children in employment varies across each state and territory.[63]
For example NSW has no minimum age of employment and employment of children is regulated only in certain industries.[64] Thus, in NSW, employment of children under fifteen years of age in entertainment, exhibition, still photography or door-to-door sales is regulated by the Office for Children - Children’s Guardian (OCCG).[65] Employers in these industries must be authorized to employ children and comply with the legislated Code of Practice.[66]
In contrast, Victoria has a minimum age of employment and children below the age of thirteen may not be employed generally (exceptions exist for family businesses, entertainment industry and children above the age of eleven delivering newspapers, advertising material or deliveries for a registered pharmacist), and any employed child (including children within family businesses) must only perform ‘light work’, work certain hours and be granted specified rest periods.[67]

Children within the Australian Defence Force (ADF)

The ADF maintains a minimum voluntary recruitment age of seventeen years (with exceptions for entrants to military schools, apprentices and members of Service cadet programs).[68]  All personnel wishing to join the ADF must provide evidence of their age and all minors require written informed consent from their parents or guardians.[69]  ADF commanders are directed to take all feasible measures to ensure that minors do not participate in hostilities.[70]

Sale and Trafficking of Children

Criminal law is governed by both Federal and state and territory law.  Therefore offenses against children will be a crime under both federal and state and territory law.
Under Federal law it is an offense to traffic in children, and slavery and sexual servitude are offenses with victims under the age of eighteen being an aggravating circumstance,[71] for example:
  • trafficking (domestic or international) of children. Maximum penalty of twenty-five years imprisonment.[72]
  • slavery. Maximum penalty of twenty-five years imprisonment;[73]
  • sexual servitude – where a person is engaged to provide sexual services subject to force or threats and is not free to cease or leave: Maximum penalty fifteen years imprisonment, or nineteen years if the victim is under eighteen years of age;[74] and
  • deceptive recruiting – where a person deceptively induces another person to provide sexual services. Maximum penalty seven years imprisonment, or nine years if the victim is under eighteen years of age.[75]
It is also an offense to: supply drugs (or other controlled substances) to children or to children for the purposes of trafficking;[76] to procure children to traffic drugs;[77] to expose children (below the age of fourteen) to the unlawful manufacture of drugs;[78] or to use a carriage service to possess, control, produce, supply or obtain child pornography or child abuse material; or use a carriage service to procure or groom a child (below the age of sixteen).[79]
It is also an offense of genocide to forcibly transfer (ie. by threats or corercion) children,[80] and a war crime to use, conscript or enlist children below the age of fifteen.[81]

Juvenile Justice

The standard age for criminal responsibility in all Australian jurisdictions is ten years of age.[82]For children between the ages of ten and fourteen years there is a refutable presumption that they are incapable of forming the criminal intent necessary to be guilty of a crime (doli incapax).[83]
Criminal law and procedure varies across each jurisdiction in Australia, generally, however, there are separate laws, procedures and courts for children.[84]  For example, in NSW, any statement, confession, admission, or information made by a child to police without the presence of their guardian, lawyer, or other responsible adult is presumptively not admissible as evidence and may only be admitted where the court is satisfied that there was sufficient reason for the absence of the adult and that, after consideration of all the circumstances, the statement or information should be admitted as evidence.[85]
Children are prosecuted and sentenced in a children’s court in relation to crimes committed when a child,[86] or may be processed via alternative proceedings such as youth justice conferences, cautions, and warnings.[87]  Criminal proceedings against a child can not commence until the Court has explained to the child the nature of any allegations made against the child, and the facts that must be established before the child can be found guilty of the offence with which the child is charged.[88]
Traditionally criminal proceedings against a child are not open to the public and names are suppressed from publication.[89]  A person under the age of twenty-one may be sentenced to a term of imprisonment as a ‘juvenile offender’ that is to serve all or part of their imprisonment within a juvenile detention facility.[90]  Children may also be subject to community service orders (including an order to remove graffiti).[91]
Convictions of children of summary offenses below the age of sixteen are not recorded and the court has discretion whether or not to record convictions of summary offenses of children aged between sixteen and eighteen and convictions of indictable offenses of children below the age of sixteen.[92]





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