From January 2009 it is now illegal for body piercing operators to do intimate body piercings (genitals, nipples etc) and scarification, tongue splitting beading under the skin and branding on under 18 year olds.
Other non-intimate piercings (eg. ears, nose etc) on a person under the age of 16 require written consent of a parent or guardian.
Centrelink: Ten tips to avoid a participation failure
Tips on what to do if you get a participation failure [59kb PDF]
Dealing with Fines [38kb PDF]
Can't afford to pay, or shouldn't have to pay [23kb PDF]
Public transport fines & infringement notices
The CAYPIN system [43kb PDF]
Graffiti Laws Factsheet [84kb PDF]
Graffitti Prevention Act
The Graffiti Prevention Act (Vic) became law in April 2008. You will have seen the billboards on train and tram stops about ‘on the spot fines of $500 for carrying a spray paint can’. A factsheet on the new laws is available on theInformation sheets page.
We also have 3 fact sheets on how to deal with fines. Young people with fines can be referred to Youthlaw or to their local community legal centre. We would also like to hear from young people if they have any complaints about being approached searched and/or charged by police with graffiti offences. We will be informing the government of any such concerns.
Hosier Lane and street art places in the city – are they legal?
Many young people think these are legal graffiti places but they aren’t. Melbourne City Council (MCC) does issue permits to allow street art – so that’s why you might see street artists there – BUT the permit has to be applied for by an owner of the building and it’s only for that piece of art. Tags or one-off stencils are not regarded by MCC as street art.
Can police ask for your name and address?
If police think you might have broken the law or are about the break the law they can ask your name and address. This could be about having paint on your hands or being near wet graffiti.
Searches for spray paint cans
A number of young people have called us about being searched on the train. Police can do this if you are 14 or up, or if you ‘appear’ to be 14 or over. Carry an ID if you are under 14. They can search bags.
Visible and Vocal [300kb PDF]:
A Youthlaw booklet about the legal needs and legal issues facing young women.
New changes mean you have to be working, training or studying to get the Youth Allowance. Otherwise you'll have to go on to Newstart.
In April the Council of Australian Governments meeting (COAG) agreed on a ‘Compact with Young Australians’, to get more young people taking up education and training.
To get the Youth Allowance if you are under the age of 17 you must be “earning or learning”, (in full time school, training or work).
Anyone under the age of 20 and not working will be provided with a training place with that if completed will result in a year 12 or equivalent VET qualification; and
Anyone under the age of 25 and not working is guaranteed a training place to ensure they have the skills to assist getting a job.
These changes take effect from 1 July 2009 for those under 20, with the under-25 changes due to start next year.
The Federal budget handed down on May 12th announced further changes that will mainly effect students applying for Youth Allowance.
Youthlaw had this to say about the changes:
In reality there are a lot of young people on youth allowance who are homeless or doing it hard and aren't able to take up training or education. These young people will be forced into Newstart and will get breached when they don't get the letters or comply with rules they can't meet.
Shoplifting: fine or court?
Question
I am a sixteen year old girl. I was caught in Bardot with a top in my bag that I hadn’t paid for. The Police were called and when they arrived, they discovered I had previously received two cautions for shoplifting. The Police gave me two options. I could choose an immediate, on the spot fine of $227, or, I could be taken back and interviewed to the Police Station. What are my rights?
Answer
You need to be 18 or above to have the option of a fine. Here the police got it wrong and offered a fine.
If you take the fine the police will issue you with an infringement notice and you will be required to pay the fine within a certain period of time. You will receive no criminal record.
If you don’t choose the fine, police will take you back to the police station, where you will be interviewed in the presence of a parent, guardian or independent person. You will then be summoned to attend court where you would receive a criminal record.
QUESTION
I just moved into a sharehouse. There are 3 of us living here, but only 1 of us is on the lease ('Ryan'). The house is going great but we are having real trouble with our landlord - he has been coming around 2-3 times a week since I have moved in. He either turns up unannounced or calls a few hours beforehand. He's not coming to inspect the place - sometimes he just comes to give us a new appliance, other times just to make sure something is still there. When he comes over he doesn't ask us questions, he doesn't go into our bedrooms and doesn't hang around for too long.
A few days ago when he and his son came around unannounced I wouldn't let them in and told them they needed to give us 24 hours' written notice. The landlord said they only needed to do this for formal inspections and he could come around whenever he liked. I told him this was incorrect but he would only answer "it's my house, I can visit whenever I want". Do i have to let him in
ANSWER
The law is that as a tenant you have a right to ‘quiet enjoyment’ of your rental property under the Residential Tenancies Act 1997. The landlord,anyone acting for him like a real estate agent or a tradesperson must respect this. There are restrictions on when your landlord can visit you, and under what circumstances.
For example, your landlord is required to give you either written notice, 24 hours before they visit, or inform you verbally seven days before they intend to come over.
Your landlord must also give you a reason for their visit, and reasons for visits are limited for example that he or she is having the property evaluated, or that they are conducting an inspection of the premises. However, it is important to remember that your landlord is not allowed to inspect the premises if they have done so within the last six months.
Your landlord must also tell you the time they intend to come over. Times are restricted to 8am – 6pm. Basically you need to reach an agreement with your landlord, about the inspection, that suits you both.
If your landlord has met with all these requirements, he or she has given you proper notice and you have a duty to let him or her enter the premises.
Your landlord must behave in a reasonable manner when they enter your home and leave as soon as they have finished what they came for. However, if your landlord has not followed the correct procedures, it is an offence for them to enter your premises.
You do not have to let them into your home and you may make a complaint against them.
Another option, if your landlord has been making frequent or harassing visits, is to apply to the Victorian Civil and Administrative Tribunal for a Restraining Order. This would prohibit or restrict the landlord from entering the premises or contacting you, and can be enforced by the police.
For more information you can contact Youthlaw on (03) 9611 2412 or the Tenants’ Union of Victoria on (03) 9416 2577
You are under 18 and on the train. Police ask to search your bag for a spray paint can. What is the law? What are your rights?
It is now an offence to carry a spray paint can when you are on public transport or nearby.
The police can search if you are 14 or over.
The search powers are limited if you are between 14 and under 18 – i.e. only a pat down search. You can be asked to take off an outer layer of clothing (like a jacket) and take off your shoes and hat. They can look in any bags or other belongings you have.
Only police can search you – not Authorised Officers (ticket inspectors).
Excuses
It doesn’t matter whether you intend to graffiti or not. You might be intending to spray paint your skateboard. It is still an offence.
Your only excuse for having a can is that you use it for your work or trade (eg sign writer) and you will have to prove this – e.g. calling your employer or showing a letter from your employer.
Being fined
If they find a can you will be given an on the spot fine of $550.
If you pay it on time then this will finish the matter.
If you can't pay you should write a letter before the due date explaining your circumstances. You can get help from a community legal centre to do this.
If you DON'T PAY IT you will have to go to court and the Magistrate will decide on another penalty – e.g. a reduced fine or a good behaviour bond. It will depend on your personal circumstances and if you have been in trouble with the police before.
If you go to Court you will get a record for going to court. This will stay on your record for at least five years.
For more information you can look at our factsheet about graffiti and fines [86KB PDF].
If you get a fine and want advice you can drop in to Youthlaw legal clinic from 2-5pm each week day (19 King St, Melbourne, 9611 2412) or go to you local community legal centre.
You can find out your nearest centre by going to www.communitylaw.org.au
Your photo is displayed on My Space and you are not happy about it as the friend who took it has not asked your permission and the photo you feel looks a bit gross. What can you do about it?
Firstly, ask the person who took the photo to take it down. Secondly, contact the people/organisation who run the website, like My Space or Facebook, to take it down. Thirdly, contact the host of the organisation.
For further information/advice contact the Communications Law Centre, a specialist legal centre, focussing on media, communications and online law and policy.
Phone: 03 9600 3841
Email: melbourne@comslaw.org.au
I'm 16 years old and after school my friends and I got in a fight on the way home with other guys from the school. A couple of the guys got hurt and now I've been contacted by the police and asked to come to the police station to answer questions. What are my rights?
The police must have a parent/guardian /independent adult present during any questioning of a young person under 18.
You have to right to answer all questions "no comment".
You have the right to speak to a friend, relative or lawyer ("legal practitioner" is the phrase police use) before the interview starts.
As this incident occurred on the way home from school, the principal may talk to all students involved and there may be disciplinary consequences for some or all of those involved.
Get legal advice as soon as possible.
A teacher has no lawful right to force you to hand over personal property without your consent unless there is a serious threat to the safety of other students.
The school may still punish you internally for disobedience if you refuse. A teacher who does confiscate something from you must look after it, keep it safely and ensure that it is not damaged. If the teacher loses or damages the property then you can ask for the teacher to replace it or pay you the value of the item.
If you attend a private school you should check your school's polices and procedures, code of conduct or other like document. Furthermore a teacher's power and a student's rights may be spelt out in the contract that your parents signed with the school.
A teacher has no legal right to search you or your school bag (or conduct a random search) unless you agree to be searched, except where they have a reasonable concern for the safety of other students. A teacher can ask to look in your bag or ask you to empty your pockets. You are entitled to refuse; however the school may still punish you internally for being disobedient to a reasonable request from an authority figure. Desks and lockers (if you have not paid money for use) are school property and can be searched even if you do not consent. A teacher has no right to search you for drugs, but they may call the police who can search you. However, the school must tell your parents and ask them to come to the school to be with you when you are searched or questioned.
Two students from my school were involved in a fight on the way home from school. Can the school suspend the students even though it happened outside school grounds?
Firstly you should check the school "Code of Conduct" which should outline the behaviour expected of students. It should state in the Code that any inappropriate conduct to and from school by students is a concern for the school and action can be taken.
Even if this is not covered in the Code the school may have the power to discipline students whether or not they are in school uniform. Schools are particularly conscious of students representing the school whilst in uniform. Incidents such as the one you describe reflect badly on the school and schools say, consequences must follow just as if the incident/s occurred during school hours.
These issues can be raised with the Level Coordinator or the Principal.
A student/parent can complain about any disciplinary action taken by the school. If the Principal does not listen to your complaint or you are not happy with his/her response you can complain to the local regional office of the Department of Education and Training. You can get the address from the school office. If you are still not happy you can contact the Victorian Ombudsman's Office on 9613 6222 or 1800 806 314.
Other useful contacts for parents are Parents Victoria on 9380 2158 and for parents of private school children the Victorian Parents Council 9804 0906, Email: vicpc@vicparentscouncil.vic.edu.au
Under the law in Victoria, there are age limits for when you are allowed to have sex.
The law says that if you are 10 to 15 years of age, a person cannot have sex with you if they are more than two years older than you (even if you agree). Exceptions to this are if the person believed you were 16 or older, or the person believed they were married to you.
If you are 16 or 17 years old, no one who is caring for you or supervising you (like a teacher, youth worker or foster carer) can have sex with you, even if you agree. Exceptions to this are if the person believed you were 18 or older, or believed they were married to you. As the older person, your boyfriend could be charged with sexual assault if he is in a supervisory capacity.
So as long as your boyfriend is not in a supervisory capacity it is legal for you two to have sex.
I am living with my dad and my sister. My mum and dad split up and we had to go and live with my dad. There are court orders that say we have to live there. It was a mistake to make us stay with dad. Dad has moved my sister and I to a different state to live. Mum has to come over so she can see me and my sister every second weekend. I don't want to live with my dad. I want to live with mum. I have told my dad and he says no. He gets angry a lot. I'm scared of dad and so is my sister. We try and tell him how we want it but we can't talk to him. Mum has no money to go to court to have us returned. Please help us.
As a general rule the law says it is in a child's best interest to have contact with both parents. The family court can make a residence order which says where and with whom, you have to live.
- Have a look at the Law Institute of Victoria website in the public information section, which tells you about Family Court orders.
- Another option is the Family Court website
- We also refer you to a Victoria Legal Aid publication entitled 'You and Family Law'. Specifically, we refer you to the section titled 'What is a child representative?' on page 19.
The role of a child representative
An Independent Children's Lawyer is a lawyer appointed by the court. Their role is to help the court decide on what is in the best interest of a child. There is no age at which an Independent Children's Lawyer is appointed. Before the case goes to court, the Independent Children's Lawyer will collect information about the case. This will include talking to people like teachers, doctors, psychologists or counsellors. The Independent Children's Lawyer should tell the judge what you want, but they may tell the judge that you should live with a parent who you say you do not want to live with. The Independent Children's Lawyer does NOT act on the child's instructions. They tell the judge what they consider is in the best interests of a child.
If you want to live with your mother you should tell her that and also tell her she should see a lawyer for advice as she can make an application to the court for an order that you live with her. She should also make enquiries to Victoria Legal Aid (ph: (03) 9269 0234) regarding eligibility for legal assistance.
Please note the following general information regarding young people under 18 wanting to leave home:
In Victoria you can leave home when you are 17.
You should consider where you will live, how you will earn enough money to live, and whether there is someone available to you who can act as a guardian (for instance is you need a school or other form signed by a guardian).
If you are under 17 and someone thinks you are at risk of suffering significant harm, they can report this to the Department of Human Services. Some people must report if they think you are at risk. If the department is concerned for your safety, they can ask the Family Division of the Children's Court to make an order to protect you. The order can say where and who you will live with.
The Department is unlikely to take you to court if you:
- Have somewhere decent to live
- Have enough money to live on
- Are mentally healthy; and
- Are not involved with drugs, prostitution, or any other illegal activities.
If there are serious problems at home and you don't want to go back or stay at home, it is unlikely that you will be forced to. The court may order that you live somewhere else, such as with another family or in a hostel. So if you have somewhere 'safe' to live and are supported financially your parents would not be able to force you to go back home.
Contacts
If you are having problems with your parents you can get free advice from Reconnect (ph: (03) 9611 2434) who offer support to young people aged 12-18 who are having trouble at home, or who have left home. They can then refer you to the local Reconnect program in your area. This service is based in the Melbourne CBD and we recommend that you make contact with them. If you want to talk to a lawyer, contact Youthlaw in Melbourne. Also you can call the Kid's Help Line: 1800 551 800 (24 hours).
I am 14 years old and in Year Nine. Last Wednesday another girl at school took a swing at me but I ducked so she did not hit me. She got two days suspension for it. But there are 15-20 other kids wanting to do the same. A lot of them are boys. The Principal of the High School said he is not going to be able to stop them and told me to stay at home becuase it is safer for me. I really love school. I did not miss a single day last year and got an award for it. The bullying only started this year. I really miss my friends as I am not at school. The school said they would give me some work to do at home. It has been one week since the girl tried to hit me and I still have not been given any work to do. I am really upset and hurt that the school would treat me like they have. I feel like they think it is easier to get rid of me rather than do something about the bullying.
Bullying is something done on purpose against a person or group of people to upset or hurt them. Bullying can take different forms, including physical bullying (such as hitting someone), verbal bullying (such as teasing) and non-verbal bullying (such as exclusion from a game or embarrassing someone). Bullying is unacceptable and it is possible to take action to stop it.
One option is to speak to the bully or bullies and ask them to stop. However, it seems likely that, in the circumstances, this has already occurred and the behaviour has not stopped.
Schools have a responsibility to make students feel safe. Most schools have a policy on bullying. You could request a copy of the school's policy on bullying. You can also make a list of all the times that you have been bullied and when you have reported it. The list forms the basis of the complaint. You should send the list to the Principal and insist that the school take the issue seriously. The school advising you to stay at home is a totally inappropriate response.
If you are still not satisfied with the Principal's response, you and /or your family can take the matter further by writing a letter of complaint to the Regional Manager of the Department of Education and Training. Your school must give you the Regional Manager's details on request.
If you are still not satisfied with the response, you can contact the Victorian Ombudsman Office in Melbourne on 9613 6222 or 1800 806 314. If the bullying has racial or gender overtones, you can also complain to the Victorian Equal Opportunity & Human Rights Commission, which is contactable on 9281 7111.
Further, if the abuse has been either/or both verbal and physical, as you say it has been, you can contact the local Children's Court in your area and make an application for an Intervention Order against the student(s) doing the bullying.
Finally, as you say you have been physically bullied you can complain to the local police that you have been assaulted. Assault is a crime and the perpetrator (the bully), if convicted, would suffer legal consequences. We note, however, that you would probably have to provide a statement to police outlining the bullying that has occurred. You may not wish to do this, the choice is yours.
We hope this information is helpful. If you would like to have more information on this issue you can contact Youthlaw in Melbourne on (03) 9611 2412 or your local Community Legal Centre.
I am 18 years old and have been interviewed by police for stealing a chocolate bar from Coles. The police said they would recommend a Diversion and I wouldn't get a criminal record. What is involved in a Diversion?
A Diversion Notice must be prepared by police for usually first time adult offenders who have acknowledged guilt/responsibility for a criminal offence and is served on offender's usually with the summons and/charge. There is a hearing in the Magistrate's court and a Diversion Plan is developed and usually requires the offender to write a letter of apology to a victim, monetary compensation top a victim if they have suffered loss, a letter of gratitude to the police thanking them for referring the matter to Diversion and either make a monetary donation to a charity or do unpaid community work at a charity.
If the offender completes their Diversion Plan their charge/s are dismissed and they do not end up with a criminal record.
What do I do when…? is a resource for anyone who works with young people aged 12–25. It aims to provide accessible information about the law to help youth workers feel more comfortable in their interactions with the law and the legal system. It details areas of the law that youth workers may come across in their work with young people and provides answers to common legal questions.
Topics covered include:
- Duty of care
- Confidentiality and privacy
- Reporting abuse
- Parents and guardians
- Working with police
- Court procedures
- Professional boundaries
- Complaints about workers
- Employment checks
- Banning clients from services
- Discrimination
- Alcohol and cigarettes
- Young people and sex
You can download a copy of the What do I do when…? publication here [425kb PDF].
Order copies of the What do I do when…? resource using this order form [502kb PDF].
Please take a few minutes to complete the What do I do when…? evaluation form too [124kb PDF]. Your feedback will help us improve the guide in the future.
This section is intended to provide information for workers about:
- the legal issues that young people, your clients, face and
- the legal issues that you face in working with young people.
If you and your co-workers need further training about these issues, contact us and we can arrange a time to run a training session about these issues.
Select a document from the list below:
- An overview of the current sentencing system in Victoria
- Anti-terror laws and young people [50kb PDF]
- Bullying, Racism and the law [1.2MB PDF]
- Some basic principles from CROC
- The Drugs Poisons and Controlled Substances (Volatile Substances) (Extension of Provisions) Act 2006
- Working with young people in the legal system
- Working with young people in the Protective system
- Working with young people in the Juvenile Justice System
- Working with Children Check
| Children's Court (<18 years) | Magistrates' Court (18 years +) |
|---|---|
| Children, Youth and Families Act 2005 Pre-Court Diversion
 Charge or Summons to Court Proven and dismissed Non-accountable undertaking (not exceeding 6 months or, in exceptional circumstances, 12 months) Accountable undertaking Good behaviour bond (with or without conditions) Conviction Fine Probation Youth Supervision Order Youth Attendance Order Youth Residential Centre Order (age 10-14) Youth Justice Centre Order (age 15 – 20) | Sentencing Act
Pre-Court Diversion
Charge or Summons to Court Proven and dismissed Good behaviour bond Conviction Fine Community Based Order (work and/or treatment) Suspended sentence Intensive Corrections Order 'jail on the outside' Combined Custody and Treatment Order (12 months) Imprisonment (YTC possible if < 21 years) |
Sentencing/ diversion programs
| Sentencing/ diversion programs
|
A formal caution issued to a young offender by a senior police officer in the presence of a parent following which no court proceedings are brought.
A document prepared by an informant and served on a defendant detailing an alleged offence by the defendant.
A sentencing order in which a charge is dismissed upon a child (and if required a parent) giving an undertaking. Non-compliance with the undertaking may result in re-sentence.
A sentencing order in which a charge is dismissed upon a child (and if required a parent) giving an undertaking. Non-compliance with such undertaking has no consequences.
A sentencing order in which a charge is adjourned upon a child signing a promise to be of good behaviour and to comply with any special conditions imposed by the Court. Non-compliance with a bond may result in re-sentence.
This has a number of different meanings. The most common one relates to the stigma attached to a sentence. A sentence can be imposed by a judge or magistrate "with conviction" or "without conviction". A sentence "with conviction" involves greater condemnation of the defendant than one "without conviction".
A sentencing order requiring a child or young person to pay a sum of money; includes any penalties, forfeitures, sums of money and costs ordered to be paid by the person.
A sentencing order by which for a specified period a child or young person is supervised by a probation officer and may be required to comply with special conditions imposed by the Court. The probation officer may be either a paid employee of Juvenile Justice or an honorary probation officer.
When sentencing a young person is put off until a later date (not more than four months away), usually to allow certain things to be done and the young person's behaviour to be monitored.
A formal meeting conducted by a mediator and attended by a young offender, his or her parent or guardian and persons affected by the young person's offending. The underlying philosophy is "restorative justice".
A sentencing order by which a child or young person is supervised by a probation officer and may be required to comply with special conditions imposed by the Court. The level of supervision is generally higher than that involved with a probation order for a specified period.
A sentencing order by which a child or young person aged between 15 and 17 is required for a specified period to attend a youth attendance project for a maximum of 10 hours per week (a maximum of 3 attendances) of which no more than 4 hours may be spent in community service activities.
A sentencing order by which a child or young person aged between 10 and 14 is sentenced to be detained in a youth residential centre for a specified period.
Definitions taken from The Children's Court of Victoria website.
Australia has ratified United Nations Convention on the Rights of the Child. The Convention provides a legal and policy reference for both government policy makers and those working with young people.
Some relevant Articles to consider:
Article 3
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.
Article 12
The child has the right to express his or her opinion freely and to have that opinion taken into account in any matter or procedure affecting the child.
Article 13
The child has the right to express his or her views, obtain information, make ideas or information known, regardless of frontiers.
The full text of the Convention is available through the website of the Human Rights and Equal Opportunity Commission or from the UNICEF website.
The Drugs Poisons and Controlled Substances (Volatile Substances) (Extension of Provisions) Act 2006
"Volatile substances" or "inhalants" refer to everyday household products such as paint ("chroming"), glue, paint thinner, deodorants and petrol, when inhaled for an intoxicating effect. As they can be purchased legally and inexpensively, they are readily obtainable by young teenagers.
The Drugs Poisons and Controlled Substances (Volatile Substances) Act 2003 had its origins in the Inquiry into the Inhalation of Volatile Substances, which was undertaken by the Drugs and Crime Prevention Committee (DCPC) in 2001. The Inquiry examined the factors contributing to inhalant abuse, considered the options to reduce and prevent inhalant abuse, and reviewed the adequacy of existing strategies. The Inquiry report was tabled in the Victorian Parliament in 2002 and made 16 recommendations. One of these recommendations was that legislation be enacted to provide the police with the power to take preventative action to deter the use of volatile substances.
The 2003 Act does not criminalise inhalant abuse, but enables police to provide an early intervention to protect the health and welfare of young people. Under the legislation, police can apprehend young people under 18 years who are reasonably suspected of abusing volatile substances. They can search young people, seize volatile substances and items used to inhale, and link young people to suitable care, eg parent or other caregiver, hospital, or drug treatment agency. Adults can also be apprehended if police have reason to believe that they intend to provide a volatile substance or item used to inhale to a person under 18, for the purpose of inhaling. Young people cannot be held in a police cell or lock-up. If the young person cannot be released into the care of a responsible adult and no longer appears to be at risk to themselves or others, they can be released independently. A Protocol between Victoria Police and relevant agencies has been developed to support the use of the legislation (see below).
The Volatile Substance Abuse Protocols Advisory Committee oversees the implementation of the legislation. It has wide representation from the community sector and across government.
The impact of the legislation is being reviewed. The Department of Human Services has been collecting data from Victoria Police, alcohol and drug agencies, and child protection. The preliminary (first year) data shows that there have been over 80 individual contacts under the legislation by police with young people. Young people have been connected to their families and/or residential placements, drug and alcohol services, or hospitals for emergency care. Some of these contacts have been repeat events with the same young people.
The 2003 Act was due to sunset on 30 June 2006. A new Act, the Drugs Poisons and Controlled Substances (Volatile Substances) (Extension of Provisions) Act 2006 has just been passed which extends this legislation for a further two years, to 30 June 2008. This will allow for the completion of the review of the impact of the legislation. Work is continuing to collect data from Victoria Police and relevant agencies, in order to provide more information about the way the legislation is working, and outcomes for young people. This will inform recommendations regarding the future of the legislation.
Further information about the legislation and other government initiatives on volatile substance use can be obtained from www.health.vic.gov.au/drugservices/pubs. Documents that can be downloaded include the Volatile Substances Protocols 2004; Management Response to Inhalant Use: Guidelines for the community care and drug and alcohol sector; and Inhalant Abuse Information Kit for the Koori Community. The Responsible Sale of Solvents: A Retailers Kit can be obtained from:
Meredith Kiraly
Phone: 9096-2821
Email: meredith.kiraly@dhs.vic.gov.au.
Feedback on the use of the legislation is welcomed.
(Relevant to all matters except Child's Representatives in the Family Court who as lawyers are not required to act on instructions)
1. Acting on the client's instructions
2. Allowing the client to make an informed decision
Providing information about:
- the court system and processes
- the role of other parties
- the lawyer's role
1. Confidentiality with the client
2. Collecting reports from relevant professionals
3. Conflict
The main issues that bring young people into contact with the legal system are contact with the police, and issues related to home life, when either parents separate through the Family Court or when there are issues of protection of the young person against harm (Family Division of the Children's Court). Young people often don't identify any other problems as legal ones, when in actual fact, legal advice at an early stage could be quite useful. Workers with young people can assist their clients to identify legal problems/issues and help them to get legal advice.
Other legal issues that young people often face include:
- school discipline disputes
- discrimination
- crimes compensation
- administrative law issues Eg: Centrelink; DHS
- public space issues: dealing with security guards; skating
- Tenancy issues : group houses; rights in a refuge
- Contract / consumer issues
- Fines
The main purposes of this Act are:
- to establish The Children's Court of Victoria as a specialist court dealing with matters relating to children and young persons; and
- to provide for the protection of children and young persons; and
- to make provision in relation to children and young persons who have been charged with, or who have been found guilty of, offences; and
- to amend and consolidate for the purposes of the new Court the law relating to the jurisdiction and procedure of Children's courts.
- to take steps to ensure that the proceedings are comprehensible to all the parties
- satisfy itself that the child understands the nature of the implications of the proceedings and order made
- children over 7 (+-1) years old are represented
- all relevant parties should participate fully in the proceeding including the child
- Court must consider any wishes expressed by the child
- 'Child' means less than 17 years or up to 18 years if a protection order continues
1. Parents cannot be found or are dead
2. No suitable person can be found who is willing and able to care for the child
3. Child has suffered or is likely to suffer:
- physical harm
- sexual abuse
- emotional or psychological harm, which significantly damages development
4. Child's physical development or health has been or is likely to be significantly harmed
And parents have not or are unlikely to provide for the child.
- An order requiring an undertaking
- Supervision order
- Custody to 3rd Party order
- Custody to Secretary order
- Guardianship order
- Permanent care order
- what types of harm must be reported? physical and sexual abuse
- what is significant harm?
- how is harm identified?
- what is a belief on reasonable grounds?
- subjective belief: did the professional actually believe?
- objective overrider: would a reasonable person have held the same belief?
- how soon is as soon as practicable?
- when is a professional practising his or her profession?
- increased reporting
- increased involvement of other professionals in child protection
- improvement in knowledge and understanding by other professionals of abuse issues
- increase in unfounded reports
- jeopardizes relationships between professional and their clients
- expense of mandatory reporting; takes money from other services
- The age jurisdiction of the Children's Court is up to 18 as of 1 July 2005
- Physical separation within the Children's Court between criminal and family divisions
- Sentencing options are different, including even more focus on rehabilitation in CC
- Juvenile Justice supervises community based dispositions in CC, versus Community Correction (CORE) in MC
- Cautions are available to young people up to 18 (i.e. the offence/s must be committed by YP before they turn 18)
The Children's Court has the following divisions:
- The Family Division which hears applications relating to the protection and care of children and young persons at risk, and applications for intervention orders
- The Criminal Division which hears matters relating to criminal offending by children and young persons
- The Koori Court (Criminal Division) aims for greater participation of the Aboriginal Community in the sentencing process of the Children's Court (Criminal Division) to the effect of achieving more culturally appropriate sentences for young Aboriginal people.
The new Children, Youth and Families Act 2005 (CYFA) combines the Children and Young Persons Act 1989 and part of the Community Services Act 1970 to create an integrated child protection and child and family support system. It is expected that it will come into effect in October 2006, although some provisions may be held over until 2007.
In the Children, Youth and Families Act 2005, very few changes have been made to the criminal jurisdiction of the Children's Court (Children and the Criminal Law –Chapter 5).
Changes in terminology
The term "children and young persons" has been replaced by "children" in s.1 and throughout the new Act. There have also been a few minor changes in terminology:
- "youth justice centre" replaces "youth training centre"
- "youth justice unit" replaces "youth supervision unit"
- "youth justice officer" replaces "youth probation officer"
In Sections 366 and 371 regarding breaches of accountable undertakings and good behaviour bonds respectively, the term "child" has been replaced by "person" so that a breach may be prosecuted even when the person is no longer a "child".
In Section 420 the term "child" has been replaced by "person" to empower the Court or a bail justice or a member of the police force unambiguously to grant bail or remand in custody in a case of alleged breach of a Children's Court sentencing order, irrespective of whether or not the person is a "child" within the meaning of the definition in Section 4(1) of the Act.
Group conferencing
A major change is the addition of the power of the Court to order a group conference to defer sentencing in a case where the Court would otherwise be considering probation or a youth supervision order. Sections 362 and 414-416 regulate group conferences. Sections 576-580 regulate group conference reports.
The purpose of a group conference is to facilitate a meeting between the child and other persons (such as the victim or their representative, members of the child's family and other persons of significance to the child, if they wish to participate, and with permission to attend by the convenor with the consent of the child). A group conference must be attended by the child, the child's legal practitioner, the informant or other member of the police force and the convenor.
The primary objective is to increase the child's understanding of the effect of their offending on the victim and the wider community, so in the future they refrain from further or more serious offending. The process involves the formulation of an outcome plan agreed to by the child, to encourage recognition of responsibility and reparation.
Additions regarding Group Conference
Group conferencing is a pre-sentence diversionary option which facilitates the constructive involvement of those who have been affected by the offending in the sentencing process: young offenders, victims, families and community. Its focus is tailored towards prevention of crime and rehabilitation of young offenders rather than retribution and punishment.
Section 362(3) provides that if a child has participated in a Group Conference and has agreed to the outcome plan, the Court must impose a sentence less severe than it would have imposed had the child not so participated.
Section 362(4) provides that if sentencing of a child is deferred for the purpose of the child's participation in a Group Conference and the child has failed to participate, the Court must not impose a sentence more severe than it would have imposed had the child not so failed to
participate.
Section 414(1)(c) provides an alternative ground for deferring sentencing if the Court is of the opinion, after consultation with the Secretary, that the child is suitable to participate in a Group Conference and the child agrees to participate.
Referral to Secretary [protective services for investigation]
In Sections 349-355 of the Children and Young Persons Act 1989, a change has been made regarding Referral to Secretary [protective services for investigation] and applies to a case in which the Court considers that grounds exist for the making of an application under Section 245 for a therapeutic treatment order or the making of a protection application under Section 243.
Two drafting errors in relation to youth attendance orders have been corrected:
- Section 397(1)(b) The requirement that the child be under 19 years has been removed.
- Section 408(2)(c) Upon proof of breach of a Youth Attendance Order, there is now express power to revoke and re-sentence.
Information about Working with Children Checks can be found on the Department of Justice website.
The Office of the Child Safety Commissioner has published Guide for Creating a Child Safe Organisation. The guide provides information on how to reduce the risk of harm to children who participate in activities run by the organisation and includes information on undertaking a child safety review, developing a child safety policy and code of conduct, enabling and promoting the participation of children, choosing suitable staff and volunteers, staff support and supervision and reporting child safety concerns. Visit the Office of the Child Safety Commissioner.
Youthlaw undertakes Community Legal Education (CLE) to raise the level of understanding amongst young people, their advocates and the broader community about how the law affects young people.
We:
- conduct CLE sessions with young people in schools and community settings around Victoria
- conduct CLE sessions with workers around Victoria
- produce written education materials such as the information sheets on this website
- raise issues in the media.
Some common topics we speak about include:
- Young people's rights and responsibilities (e.g. police powers and ticket inspectors)
- Workers rights and obligations
- Duty of care, privacy, confidentiality
Please contact us if you would like to talk about a CLE session.
What's the Deal is a resource for teachers designed to improve awareness of young people's legal rights and responsibilities. The kit is to be used with young people aged 14 - 16 years and is targeted at school teachers (Years 9 and 10) and educators working in community settings such as community legal centres and youth services. This resource was developed by Youthlaw and Victoria Legal Aid.
The kit covers four key issues:
- Authority (Police and Ticket Inspectors)
- Your Body (Sex and Gender Identity, Pregnancy)
- Becoming Independent (Leaving Home and Getting Work)
- When Things Hurt (Violence and Discrimination)
The resource is available through Victoria Legal Aid. Order a copy of What's the Deal online.
Youthlaw undertakes community legal education (CLE) to raise the level of understanding amongst young people, their advocates and the broader community about how the law affects young people.
We:
- conduct CLE sessions with young people in schools and community settings around Victoria
- conduct CLE sessions with workers around Victoria
- produce written education materials such as the information sheets on this website
- raise issues in the media.
- Young people's rights and responsibilities (e.g. police powers and ticket inspectors)
- Workers rights and obligations
- Duty of care, privacy, confidentiality
In 2008 Youthlaw completed a project ‘Visible and Vocal ‘ funded by the Victorian Womens Trust . This project surveyed and talked to young women about their legal needs and issues.
You can download a copy of our report Visible and Vocal [300kb PDF]
The Charter of Human Rights and Responsibilities became law on 25 July 2006. Detailed information about the Charter of Human Rights and responsibilities can be found on the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) website.
Download an information sheet about what the Charter means for young people [38kb PDF].
The human rights of children and young people (up to the age of 18) and the standards to which governments must aspire in realising these rights, are articulated in an international human rights treaty: the Convention on the Rights of the Child. The Convention is the most universally accepted human rights instrument - it has been ratified by every country in the world except two, the United States and Somalia. By ratifying this instrument, governments have committed themselves to protecting and promoting children and young people' s rights.
The Convention on the Rights of the Child is a universally agreed set of non-negotiable standards and obligations. It spells out the basic human rights that children and young people everywhere - without discrimination - have:
- the right to survival
- to develop to the fullest
- to protection from harmful influences, abuse and exploitation
- to participate fully in family, cultural and social life.
Download the full text of CROC from the UNICEF website. For more detailed information visit the UNICEF website.
Download the full report of the conference (212KB PDF)
In 2000, the 10th anniversary of Australia's ratification of the United Nations Convention on the Rights of the Child, the Federation of Community Legal Centres Vic began a project designed to promote the Convention and to develop strategies to strengthen compliance with the obligations contained in it.
The project had three main components:
- Action research about compliance with Convention obligations.
- Development of a series of discussion papers, highlighting key issues facing young people in Victoria
- Bringing together workers with young people at a working conference held at Melbourne Town Hall on 2nd March 2001
The conference was attended by 180 people from a diverse range of backgrounds, including lawyers, youth workers, health professionals, bureaucrats, educators, drug and alcohol specialists and youth housing workers.
Conference participants attended two workshops. The task of each workshop was to develop realistic action strategies to improve compliance with the obligations spelt out in the Convention and to strengthen the rights of children and young people in Victoria. The strategies look not only at what our governments can do, but also what community sector agencies can do at the policy level, at the service delivery level and through advocacy to enhance young people's rights. This web-site is intended for discussion and debate towards the implementation of these strategies.
The morning workshops focussed on developing strategies within the context of the Convention. We chose five key Convention principles as the focus for these workshops, namely:
Article 3 - Best Interests of the child (link to text on this section from report)
Article 5 - Parental Guidance and the child's evolving capacities
Article 6 - Survival and Development and Article 8 - Preservation of Identity
Article 12 - Expression of Opinion and Article 13 - Freedom of Expression
Article 4 - Implementation of Rights
The afternoon workshops were designed to develop strategies to improve compliance with the Convention in the context of specific areas of activity or sectors. We chose five sector areas that were identified by participants as areas of interest or expertise, namely:
- Education
- Employment
- Housing
- Justice
- Use of public spaces
The conference was wrapped up by Danny Sandor, President of Defence for Children International, Australian section and Board member of the National Children's and Youth Law Centre, who discussed different models and ideas for an Office for Children in Victoria.
The United Nations Committee on the Rights of the Child monitors the implementation of the Convention. Governments that ratify the Convention must submit reports every five years on the implementation of CROC to the Committee for examination. Australia's first report was filed in December 1995. The second report was not filed when it was due in January 1998. A combined second and third report was filed in September 2003.
Non-government agencies have the opportunity to provide an alternative or shadow report. The shadow report is sent to the United Nations Committee and is considered along with the Federal Government's report. Defence for Children International - Australia and the National Children's and Youth Law Centre compiled the 2005 National Report.
- See the Defence for Children International Australia website for more details
- Download the national shadow report [1.43MB PDF]
- Download the Victorian shadow report [217K PDF]. This was compiled by Youthlaw and the Youth Affairs Council of Victoria.
The UN Committee considers the Government and shadow reports and makes 'concluding observations' that include recommendations for action. The Concluding Observations which were adopted by the Committee on the Rights of the Child during its fortieth session in September 2005.
Download the 2005 Concluding Observations [128K PDF]
Article 28: Right to education
Article 29: Aims of education
Article 2: Non-discrimination
Article 12: Expression of Opinion
Article 13: Freedom of Expression
Article 19: Protection from Abuse and Neglect
Article 22: Refugee Children
Article 23: Children with Disabilities
Article 30: Minority and Indigenous Children
Access - Article 28
Education is in principle compulsory, free and universal. In practise, access to school activities is restricted for many children as a result of incurred costs (costs of books, equipment and some school activities (eg school excursions, swimming lessons) and voluntary fees.
Bullying - Article 19
Students who are the target of violence and bullying often leave school altogether, which seriously compromises their employment prospects. Research has shown that the effects of harassment at school can have serious health consequences and these young people are at greater risk of suicide than their peers. Research also indicates that violence against lesbian and gay students has consequences such as truancy and dropping out of school.
Curriculum Content - Articles 2 & 13
In an on-line survey and in one-to-one interviews, young gay, lesbian, bisexual and transgender people have identified that school curriculum does not and needs to include and address issues relating to sexual orientation. Schools also need to adopt an anti-harassment policy and affirm diversity.
Human Rights Education
Few young people are aware of their rights or know that legislation in Victoria (EO Act 1995) and nationally (HREOC Act) prohibit discrimination on grounds of age. Many young people are not aware that mechanisms are available to protect their rights or of how to access these mechanisms.
With the introduction of the Federal government's Discovering Democracy, civics and citizenship education was made compulsory in all schools for student in years 4-10. However, submissions to Seen and Heard suggest that this information should be complemented by human rights education, especially around children's rights and responsibilities.
Physical Punishment
The Convention requires that the administration of school discipline be consistent with students' human dignity and other rights, including their rights to be heard on matters affecting them (Articles 28(2) and 12). Disciplinary measures in schools range from informal provisions such as additional homework and detention to formal sanctions such as exclusion from school and corporal punishment.
Statutory provisions in most States and Territories only apply to public schools. NSW and ACT are the only jurisdictions that regulate discipline in private/independent schools by legislation - both have a statutory ban on corporal punishment in all schools. In Victoria, legislation banning corporal punishment applies to government schools only.
Exclusion
Suspension and expulsion from school permanently or temporarily are used arbitrarily as forms of punishment without adequate safeguards for rights of the child.
Searching and Confiscation
- Indigenous children: post primary school education is not always accessible or available.
- Refugee/migrant: language and culturally appropriate curricula and appropriate integration education are not always available.
- Disability: services for children with specific learning difficulties or disabilities are inadequate. Difficulties exist in the interface of disability services with education system. Underlying this is the ability of generic systems to cope with specific situations of differently able students.
- Remote and Rural: education beyond primary school is not always accessible/available to those living in remote areas.
- Sexuality: gay, lesbian, bisexual, transgender discrimination in the playground and curriculum.
- Sex/gender: higher education opportunity disparities.
- Children in care: face particular difficulties associated with frequent moves.
What can schools do?
- Access to education requires the provision of:
- support to all families/individuals to access education;
- a secure school environment; and
- locally-based quality schools appropriate to the needs of the community.
- support to all families/individuals to access education;
- There must be flexibility in the way education is provided in order to cater for diversity in the social, cultural and economic circumstances of young people, as well as factors including disability, indigenous communities, rural and remoteness, homelessness, refugee experiences and sexuality.
- Every school should have a policy to combat violence and bullying which spells out:
- rights and responsibilities of teachers, parents and students;
- attitudes to race relations, disability and sexuality; and
- due processes on how to implement/enforce the policy.
- rights and responsibilities of teachers, parents and students;
- Ensure that school policies reflect the Convention.
- Teachers must be trained in the Convention and its implications i.e. rights of the child to express an opinion in class. Students could have a role in the teacher training process.
- Rights of the child to be heard and express views should relate to all school structures. Young people should be trained and encouraged to participate in student representative and school councils.
- Student representatives are often chosen by staff, or on the basis of popularity, ability to articulate or parental encouragement. The voices of socially disadvantaged children are rarely heard. There needs to be more thought put into (and consultation with young people on) how to achieve real participation by all young people in the socio/political structures of the school. This will involve more resources, both educational and social support, to ensure that all young people are literate, articulate and socially confident.
- Active citizenship cannot be taught unless it is practiced. Non-democratic structures cannot teach democracy effectively. What are the implications of this for the way schools/classes are structured?
What can non-government agencies do?
- School is part of our community, as such it should be treated as a community resource, reflecting the needs of the community, rather than the community adjusting to the requirements of the school. E.g. opening hours, community use of facilities and access issues.
- Training/education is essential to combat bullying. Resources must be allocated for education within the classroom, at teacher training institutes and in the community on how to combat violence.
- Youth workers and recreation workers should be employed by the education system to work in the playground at recess and lunch in order to provide respite to teachers by supervising play and ensuring the safety of younger children, the disabled, socially isolated and victimized.
- More positive male role models are needed in primary schools.
- Teachers need to be more highly valued in society for the work they do in order to achieve better outcomes for students.
- Parents need to be educated on the importance of young people's rights. This may also involve examining the rights of young people in the family.
- Involvement of the community in school is important to ensuring that the rights of young people are maintained, in particular young people from diverse cultures and indigenous young people. This necessitates clear policies and a commitment by the school to consultation processes.
Access to Education:
- Remove voluntary contributions and pay schools more money.
- Return all of the Education Maintenance Allowance to parents as this allowance was designed to pay for costs involved in accessing education for the least well-off not for program levies, etc.
- Reduce public transport costs for access to education and training.
- Governments need to educate themselves (politicians and public servants) on the obligations involved in being a signatory of the Convention.
- Governments need to fund teacher training and in-service forums to allow groups such as Amnesty to teach them about the Convention and its implications in the classroom and in schools.
- It is important to hear the voices of young people not attending school. Also marginalised young people such as homeless youth.
- Some schools are reluctant to talk about 'rights' for students. The Government has a role in creating an environment that welcomes the involvement of outside services into schools to speak about rights.
- Put the Convention and human rights education into the curriculum. This will involve an audit of the curriculum to locate a suitable place for these teachings.
- An audit of school curriculum to look at the educational needs of all those who do not go through to tertiary studies, particularly disadvantaged groups. Also those groups with a high drop-out rate e.g. Kooris, children in high-rise accommodation, and homeless young people.
- Schools are curriculum-based, and the curriculum is driven by requirements of tertiary sector. Where does the teaching of children's rights fit into this? What about the needs of the non-academic students to receive an education which will equip them to exercise their rights in employment, as consumers, in families and society, as participants in the democratic process?
- Put more resources into the classroom to give teachers more support in assisting disadvantaged young people.
- Schools, in co-operation with local communities, need greater access to support services to assist young people. These include remedial and teachers of English as a second lanaguage, disability support workers, and a range of counselling options for dealing with family violence and breakdown, substance abuse and mental health issues. This requires a greater commitment of resources across the board, but particularly in rural and remote communities where the youth suicide rate is high.
- Resources must be more equitably distributed. A competitive environment works against ensuring human rights for all. The government must work towards reducing the current glaring inequities between private and public education, rich and poor suburbs, cities and rural regions.
Article 32: Protection from Economic Exploitation
a. Provide minimum age(s) for admission to employment;
b. Provide for appropriate regulation of the hours and conditions of employment; and
c. Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.
Article 26: Benefit from Social Security
Article 2: Non-discrimination
Article 12: Expression of Opinion
Article 13: Freedom of Expression
Article 15: Freedom of Association
Article 19: Protection from Abuse and Neglect
Minimum age - Children under 15 are permitted to work in Victoria with a permit. Under the Victorian Industrial Relations legislation it is possible for a child to enter an employment contract and no minimum age rate applies. Children tend to work in State award service industries, they are part-time and often transient worker and therefore have little protection.
There is a concern that the permit system is now largely ignored and prosecutions for breaches are uncommon. Spot checks on workplaces employing children under 15 to monitor occupational health and safety, hours of employment and wages no longer take place. The Annual Report of 1998/99 for the Department of State Development makes no mention of child employment permits so the number issued is unknown. Further, statistics for prosecutions for breaches are also not mentioned.
Minimum hours of work - The Community Services Act 1970 (Vic) permits children as young as seven to work (section 77(1)) up to 8 hours a day outside school hours between 6 and 11pm (section 77(6)), except in situations where the hours of work are so few, such as paper rounds, or the child is employed by the family in a shop at the residential premises, or for occasional charity events or sporting activities (section 77(c)).
Youth wages - The issue of youth wages continues to be a contentious one. The House of Representatives Committee report Youth Employment: A Working Solution (1997) presents statistics that show junior wage rates currently apply to 52% of young people under 21 and that trainee wages apply to 13% of this group.
'Freely chosen' work - The Work for the Dole scheme raises particular concern about the right to freely chosen work endorsed in the UN Convention on Economic, Social and Cultural Rights and whether or not participation is likely to lead to real jobs.
Enhanced mutual obligation - This signals a shift from a contract between unemployed people and government, which might be better describe as a 'reciprocal obligation', to one that involves unemployed people and community. Work for the dole, one component of the governments'mutual obligation' policy, is intended to be about individuals giving something back to the community.
Increased unemployment rates - In 1997 9% of all 20-24 yr olds were unemployed and looking for full-time employment compared with 6% in 1987.
High levels of part-time or casual work - Recent evidence has shown that part-time and temporary work does not necessarily lead to more secure full-time employment. Casual and part-time work is associated with low levels of training (Wooden, 1996). There is evidence that part-time work may persist for non-student part-time workers (Flatau & Simpson, 1996). Under-employment among part-time workers is higher among 20-24 yr olds, with 37% of part-time workers wanting to work more hours (ABS, 1998). While making up 20 % of the overall work force in Australia, the rate of increase of part-time and casual employment among 15-19 year olds is by far the largest of any age group.
Labour Market disadvantage - Factors found to contribute to young adults' labour market disadvantage include the labour force status of parents, ethnicity and indigenous background (Cass, 1995). Longitudinal studies show an association between early school leaving and ongoing labour market disadvantage, particularly for women (Dwyer 1995; OECD 1998). Cost barriers to education and training may especially affect the choices of young women from low socio-economic backgrounds (Byrne, 1995; Lewis & Koshy, 1998).
Occupational Health and Safety provisions - children require more protection and monitoring in the workplace than adults. Children require careful supervision, adequate rest and nourishment.
Violence in the workplace against children and young people - violence and harassment of young people in the workplace continues to be a serious concern, particularly when young people are not fully aware of their rights and have limited bargaining powers.
Young people have little knowledge of the rights - therefore with the shift to employment contracts they have low and unequal bargaining powers. Lack of knowledge, reluctance to complain and the absence of complaint mechanisms available to young people all suggest that young people have few enforceable rights in the workplace.
Trainees and Apprenticeships - No access to unfair dismissal mechanisms at Victorian level. Vocational Education and Training Amendment Act 1995 moves to allow the government to contract out the monitoring of apprentices by employers.
Invisible work of children - Home-based work is increasing in many industries so further increases in child labour might be expected.
Demise of the Youth Industrial Unit - One of the most significant consequences of the Commonwealth Powers (Industrial Relations) Act 1996 was the demise of the Youth Industrial Unit, the Victorian industrial inspectorate and the Victorian Wageline service. The Youth Industrial Unit had specific responsibility for workers under 21 years of age, and aimed to recognise the needs of young people and to provide a more flexible and personal response to young people.
Social Security - Youth Allowance integrates a range of payments to young people that include Austudy, Abstudy, Youth Training Allowance and Sickness Allowance. Under this current system income support is payable up to the age of 18 only if a young person is in an education or training environment and for those aged 18 to 20, only if the young person is looking for work or is in education or training. One of the more contentious aspects of the Youth Allowance is that payments to young people under 21 are parental income and asset tests. This means effectively that from an income security perspective young people are not considered to be adults and that they are not eligible for income support in their own right until this age.
Some concerns associated with income support highlighted by young people include: administrative processes being bewildering and intimidating; government departments often being unhelpful; co-ordination between department being poor; insufficient information about entitlements; applications forms being difficult to complete; waiting periods being unreasonably long; and clerical errors often mean that benefits are incorrectly reduced or stopped. (Seen and Heard). The introduction of a diary scheme and 'dob in line' by Centrelink puts young people at risk in fulfilling the requirement to apply for a stated number of jobs per month.
What can non-government agencies and government do?
- Lobby for funding for research - who's working? where? how many? What is the current situation of child and youth employment.
- Establish a non government enforcement agency to oversee and monitor youth employment issues, including:
- numbers and reasons for drop outs from secondary schools;
- education for children and young people - where to go for help;
- lobby government;
- advocate on behalf of young workers;
- law reform; and
- possibly prosecutions.
- numbers and reasons for drop outs from secondary schools;
- Lobby for a government department This unit should have an enforcement role as well as a role in:
- Monitoring
- Research and advice
- Encouraging young people's participation.
- Monitoring
- Develop the following:
- passbooks issued e.g. City of Whittlesea - what's available locally;
- information packs for young people; and
- strategies to encourage clients to make contact with government agencies.
- passbooks issued e.g. City of Whittlesea - what's available locally;
- Educate colleagues about the Convention.
- Educate employers.
- Improve liaison between non-government agencies. Nominate one body to co-ordinate communication between non-government agencies.
- Involve young people.
- Hold forums for young people, organised by local government or community legal centre.
- Employment Ombudsman? - consider this further.
- Review all legislation pertaining to children and employment both in Victoria and federally to ensure it complies with the Convention, including:
- Accident Compensation Act 1983 (Vic)
- Community Services Act 1970 (Vic) (in progress)
- Disability Discrimination Act 1992 (Cth)
- Education Act 1958 (Vic)
- Equal Opportunity Act 1985 (Vic)
- Fair Employment Bill; Fair Trading Act 1985 (Vic)
- Human Rights and Equal Opportunity Act 1986 (Cth)
- Long Service Leave Act 1992 (Vic)
- Occupational Health and Safety 1985 (Vic)
- Race Discrimination Act 1975 (Cth)
- Sex Discrimination Act 1984 (Cth)
- Superannuation Guarantee (Admin) Act 1992 (Cth)
- Vocational Education and Training Act 1992 (Vic)
- Workplace Relations Act 1996 (Cth)
- Community Services Act 1970 (Vic) (in progress)
- Accident Compensation Act 1983 (Vic)
- In the context of the Convention and employment rights, develop a campaign along the lines of FairWear, CAFFE (alliance of disability organisations), Victorian Children's Employment Network, including a media campaign.
- Develop an advisory body for government that is representative of young people.
- Use TAFE/Trade schools to educate about the Convention.
- Oversee the implementation of the Convention via an interdepartmental committee (IDC). The IDC must have involvement from communities and non-government agencies, including rural and remote representatives, to be non discriminatory and inclusive.
Article 27: Right to adequate standard of living
State Parties 'shall in case of need provide material assistance and support programmes, particularly with regard to nutrition, clothing and housing.'
Article 20: Protection of children without families
Article 24: Right to health and health services
Article 26: Right to social security
Article 19: Protection from abuse and neglect
Article 15: Freedom of association
Homelessness - and risk of homelessness
Definitions - definitions of homelessness vary and often serve very different purposes, e.g. Governments use service delivery definitions to identify eligibility for particular services, while agencies might use advocacy definitions to draw attention to broader issues surrounding homelessness. However, there now appears to be an emerging consensus about how homelessness is understood in Australia. Using a shared 'community standard' benchmark about the minimum housing that people in Australia have the right to expect, agreement pertaining to definitions follows a three tier model of the homeless population:
- Primary homelessness: without conventional accommodations (living on the streets, sleeping in parks, squatting in derelict buildings, cars or railway carriages).
- Secondary homelessness: moving around from one form of temporary accommodation to another (emergency accommodation, youth refuges, residing with friends or relatives, boarding houses on occasional or intermittent basis).
- Tertiary homelessness: living in single rooms on a medium to long term basis, such as private boarding houses, without separate bedroom and living room, without separate kitchen and bathroom facilities, not self-contained, no security of tenure provided by lease.
- Lack of economic and social support.
- Difficulties in accessing social security payments especially in situations of instability and limited mobility.
- Cut off from family and friends.
- Few independent resources.
- No/few means or prospect of self-support.
- Danger of falling below poverty line.
- Difficult to access drug rehabilitation/withdrawal services (many lack residential component).
- Difficulties faced with criminal justice system - failure to appear.
- Difficulties in keeping appointments - leads to problems in accessing services.
- Homelessness is not only an issue in larger cities - 41% of Victorian SAAP clients were not in Melbourne when they sought assistance.
Related Issues: Homeless young people may turn to sex work for economic survival, with consequent vulnerability to violence, sexual exploitation, drug use, HIV/AIDS and other sexually transmitted diseases, poor health, malnutrition and difficulties accessing education, training and social security.
Private rental issues
- Access to private rental market is extremely limited.
- Uncertain legal enforceability of leases signed by young people under 18 years.
- Real estate agents discriminate against prospective renters, especially young people. Anyone on Centrelink payments is considered not to have'permanent' income (regardless of age).
- Lack of affordable housing - matching to income security.
- Between 1986 and 1996 the private rental sector expanded by approximately 28%, but the stock available at the lower end (weekly rents below $120) of the market fell by 20%.
- Annual funding for rent assistance increased by 400% from 1986-96, but has not resulted in greater access to the private rental market.
- Lack of access to public housing - age limits.
- Lack of public housing stock due to government sell off.
- Waiting list in Victoria at the end of June 1998 was 53,379 households.
- Net value of the Commonwealth funding under the Commonwealth State Housing Agreement (CSHA) has fallen by nearly $200,000 (nearly one third of annual funding) between 1984/5 - 1997/8.
Discrimination in service provision by police, schools, estate agents, housing policies and Centrelink.
- Review intake policies to ensure the service is accessible and has an open door policy.
- Define the role and responsibilities of lead tenants.
- Provide better resourcing of lead tenants.
- Define responsibility of care, continuity of care, what is care?
- Provide better support for informal care arrangements.
- Ensure services are culturally appropriate.
- Youth housing: Acknowledge that 12-15 months is not long enough; segmented waiting list, fast track is not appropriate process for young people.
- Ensure policies prioritise to keep young people within their communities and provide resources to support this.
- Ensure young people's environment is taken account of, such as young people who are parents, young people in same sex relationships.
- Private rentals: advocate for real rental subsidies to improve housing options.
- Investigate further where the statutory system currently breaches the Convention.
- Advocate that the statutory system increase options available, that are properly resourced and provide an improved standard of training for carers.
- Ensure housing for young people is flexible and based on alternative models.
- Simplify processes/administrative forms.
- Improve awareness of entry points to housing services.
- Look into the cheaper options in terms of the Convention. Are caravan parks appropriate housing for young people?
- Improve the size, model and environment of refuges.
- Advocate for housing to be recognised as a basic need.
- Advocate for safer housing options for young people, after hours services, more refuges and exit options. Recognise that the needs of young people are different to those of young children.
- Advocate for more children's domestic violence outreach workers in each region.
- Advocate for government policies to reflect that women's housing should be based on the needs of children.
- Advocate for more housing to keep families within their own environment and community - families should be able to nominate the suburb in which they wish to live, to avoid families being displaced in areas where they do not have support or do not feel connected with the community.
- Improve resourcing to early intervention and prevention programs (e.g. maternal & child health programs, programs through community houses).
- Fund housing services for a range of activities, not just core services e.g. planning, debriefing.
- Provide infrastructure to support new housing developments.
- Define housing broadly.
- Establish a Commission for Children and Young People and youth accountability measures.
- Undertake community campaigns educating the community about the Convention.
- Increase youth and family incomes: current Centrelink levels of payments are inadequate.
- Ensure parity between housing policies and Centrelink policies.
- Ensure Centrelink provides a more flexible approach to administrative breaches because of homelessness.
- Investigate government regulation of the private rental market.
- Incorporate the Convention into policy across all areas of Government including evaluation processes such as the current reviews by the State government of the homelessness strategy, youth strategy and Segmented Waiting List.
- Commit more resources towards housing to meet the identified needs.
Broad Justice issues:
Article 3: Best interests of the child
Article 12: Express an opinion
Article 13: Freedom of expression
Article 16: Protection of privacy
Article 17: Access to appropriate information
Juvenile Justice issues:
Article 40: Administration of juvenile justice
Article 19(a): Protection from abuse - whilst in the care of any person
Article 22: Special and appropriate protection for refugee children
Article 37: Prohibition of torture and deprivation of liberty
Article 37(b): No unlawful and/ or arbitrary deprivation of liberty
Article 37(d): Prompt access to legal and other assistance; Prompt impartial decision-making
Protection issues:
Article 9: Right to live with parents unless if this is incompatible with the child's best interests; right to maintain contact with parents
Article 19: Protection from abuse
Article 20: Protection of children without families
Article 21: Adoption
Article 22: Special protection for refugee children
Article 25: Periodic placement review of children in State care
Article 26: Right to benefit from social security
Jurisdiction of the Children's Court
Currently the jurisdiction of the Children and Young Persons Act 1989 includes persons under the age of 17. A review to extend this to include any person under 18 is currently under way.
Independent witness to police interviews involving young people
Section 464E Crimes Act 1958 (Vic) provides that:
If a person in custody is under the age of 17 years, an investigating official must not question of carry out an investigation under section 464A unless - (a) a parent or guardian of the person in custody or, if a parent or guardian is not available, an independent person is present; and (b) before the commencement of any questioning or investigation, the investigating official has allowed the person in custody to communicate with his or her parent or guardian or the independent person in circumstances in which as far as practicable the communication will not be overheard.
However, section 464E gives young people no right to choose who is present during the interview, whether it be a parent or an'independent' person. This is in contradiction to Convention Article 12 which espouses the right of children and young people to express their opinions and promotes their right to have more control over the legal process.
In practise once a parent is found to be unavailable, police choose someone to act in this role. Officers have different opinions on the extent to which the views of young people should be taken into account in choosing who the interview witness should be. There is significant concern amongst youth workers, lawyers and police that the witness is often not'independent' but actively supporting either the police or the young person.
There is further controversy over whether the role of an'independent' person is simply to witness the interview process, or to more actively assist the young person to understand and exercise their rights.
Pre-Court diversion
The Criminal Justice Diversion Program provides an opportunity for mainly first time offenders to avoid a criminal conviction by undertaking program conditions that benefit the community, victims and the offender. This program was recently extended to include seven Magistrates' Courts in Victoria (Broadmeadows, Heidelberg, Dandenong, Sunshine, Frankston, Ringwood and Melbourne) however, it does not yet operate throughout Victoria or in the Children's Court.
Release of Criminal Records
Currently even if an offender receives a non-conviction disposition it is recorded for the life of the offender. It is only by virtue of Victoria Police policy that records more than 10 years old are usually not released.
The Age of Criminal Responsibility
There continues to be some concern around the defence of doli incapax, that is, not having the capacity for criminal conduct. In Victoria it is presumed that those under that age of 10 years are doli incapax, or unable to commit a crime or be found guilty of an offence. The UN Committee on the Rights of the Child maintains that while this age limit may be higher than in other States it is still too low. Further, there is some discrepancy around the defence of doli incapax for those aged between 10 and 14. It is presumed that for those younger than 14, the defendant is incapable of forming the criminal intent necessary to be found guilty, however, there are a number of issues that require consideration:
- The prosecution must establish that the defendant knew that what he/she was doing at the time of offending was seriously wrong.
- If the young person has been cautioned prior to the offence it could be detrimental to a doli incapax defence.
- The older the defendant the less strength given to the presumption.
- Occasionally during the interview the young person will be specifically asked, 'did you at the time of doing these things, know what you were doing was seriously wrong?' In almost all other cases the questions will be put'do you know what you were doing was wrong?' Clearly it can be argued that the knowledge of the young person at the time of attending the police station and being interviewed may be dramatically different to their perception at the time of offending.
- Forensic testing of young people.
- Difficult relationship between young people and police generally.
- Police misuse of powers, including search powers.
- Inadequacy of police accountability processes, through Ethical Standards Department and the office of the Ombudsman.
- Diversion programs - what are the safeguards, accountability of police?
- Limited access to legal representation for young people at a police station, and limited access to information relevant to young people about police powers.
- Lack of accountability for the bail justice process.
- Lack of information for young people as well as services providing advice and ongoing casework, in relation to the following areas: contracts, mobile phones, debts, fines, mandatory immigration detention, rights in school, disputes with Centrelink.
- Advocate for adequate funding for a specialist State-wide young people's legal and advocacy service that provides a comprehensive casework service, preventative education and policy programs, as well as a State-wide youth lawline, for young people in police custody, like Alphaline - 24 hour, 7 days.
- Work towards a co-ordinated approach to teaching young people about their rights.
- Develop information about rights for young people that is educative, addresses practical issues impacting upon young people, is user-friendly, multi language information, and provides information about penalties that is relevant to young people.
- Advocate for changes to the PERIN system, to provide non-financial penalties for young people.
- Educate about rights around school exclusion.
- Advocate for improvement to or new models for the methods used to exclude young people from school.
- Ensure that the young people are able to report crime as victims without fear of punishment, and for their own offences taking over.
- Police /young people relationship:
- Create programs between police and young people to improve relationships.
- Encourage and develop improved police training in their dealings with community services/liaison.
- Create programs between police and young people to improve relationships.
- Many police are so set in their ways so must focus on all police training from point of police recruitment re youth / youth services / programs.
- Advocate for an independent police accountability mechanism.
- Develop programs that link young people to services at point of police contact.
- Advocate for an improved system of independent persons for young people in police interviews, where the adult is independent of police and has been through a coordinated training program.
- Advocate for an independent police accountability mechanism.
- Encourage young people to take action against arbitrary decisions made by courts/DHS that are oppressive to them. This will vary from region to region.
- Advocate for DHS to develop clear guidelines and standards at decision making levels - including review of decisions made, conflicts arising between parents and young people.
- Educate workers with young people about what and how DHS operates.
- Establish an audit in Victoria on the state of young people and their status as to Convention; ensure the research and consultation processes include young people as researchers.
Article 2: Non-discrimination
Article 12: Expression of opinion
Article 13: Freedom of expression
Article 14: Freedom of thought, conscience and religion
Article 15: Freedom of association
Article 16: Protection of privacy
Article 17: Access to appropriate information
Article 19: Protection from abuse and neglect
Article 31: Leisure, recreation and cultural activities
At a time when many societies are (re)constructing young people as 'intruders' and a'threat' in public spaces, there is a need to determine the issues and the impact of aggressive social interventions and exclusionary practices on young people's experiences of urban life.
(Malone and Hasluck, 1998)
Through participatory research techniques the UNESCO Growing Up in Cities (GUIC) project has identified four key factors that young people have indicated marginalise and exclude them from public spaces. They are:
The physical form of the neighbourhood
According to Stilwell (1993), the neighbourhood form shapes people's perceptions of society, themselves and the social values they adopt. (Malone and Hasluck, 1998)
Young people generally describe their neighbourhood as boring because there were limited public spaces that catered for their specific needs.
Commercialisation of youth spaces
Young people identified one of the major barriers to them engaging in sporting activities and utilising community and commercial facilities was the cost. Positioning young people as consumers serves to disadvantage and ultimately preclude their access to public spaces as a result of their lack of disposable income.
Restricted mobility
Young people identified the causes of their restricted mobility as: having to stay at home to babysit younger siblings; lack of or expensive public transport; being too young to drive; not wanting to go places with their parents or relatives; streets with high traffic flow; not being able to afford a bicycle or skateboard; nowhere to go; and fears for personal safety.
Personal safety, dangers and fears
The GUIC project identified a number of mediums through which young peoples images of danger and fear have evolved, these included: lived experience; harassment and policing of young people by regulatory agencies; parents projecting fears as a mechanism for scaring young people into containment; media sensationalisation of the problems in the western suburbs and young people being stereotyped as perpetrators of violence; and videos, television and games.
Other issues include:
Police and security guards'moving on' young people who are then forced to find another space.
A comment by a Somalian young person is common:
Police often discriminate against us, they pick on us. Once we were walking on the street with a friend and a policeman in a car stopped and asked me my name and address for no reason. He said to me don't speak bloody African language. This made me feel really angry because he didn't respect my language or culture. He pushed my friend over when he came to help me.
(Youth Newsletter 1997 cited in Malone 1999)
Community needs are currently understood as adult needs not young peoples; public space becomes adult space and young people are forced to occupy the fringes.
Youth specific space needs - limited places meet young peoples needs of no age restrictions, distance, access to transport and financial constraints.
Lack of authentic participation in planning, design and development of urban spaces
While some local councils in the Melbourne area have endeavoured to consult with young people about their use of public spaces, for the most part this has been about'getting them involved' rather than acknowledging their distinct needs. Participation is not about consulting young people about the what colour to paint the youth centre or planting trees in the playground. It's about finding out how young people use public spaces differently and how they would most like these spaces to reflect them and their specific needs. The capacity of young people to contribute to public space planning is often undervalued.
Specific discrimination issues faced by some young people, based on age, race, sex/gender, sexuality, and disability.
What can non-government agencies and local government do? What does government (State and Commonwealth) need to do?
- Address negative perceptions in sections of the community regarding young people in public areas 'hanging around' / congregating.
- Assist young people to feel and be safe in public places.
- Question perceptions of safety which are often unfounded.
- Create youth specific space, to overcome the reduction in play space generally as well as to overcome the increased commercialisation of play / leisure activities.
- Advocate to authorities and other institutions such as business against exclusionary practices and for alternatives to increased regulation and uniformity.
- Discuss the idea/fact that public space is often a place of safety for young people and others because of the proximity to people.
- Work to address the discrimination of minorities occurring as a result of increased visibility.
- Improve the participation of young people in the design and control of public space.
- Work to address problems of policing and regulation.
- Understand that space is gendered.
- Interrogate the contradictions and the intersections of private and public space.
- Encourage the creative use of space.
- Develop information about family friendly public spaces.
- Improve safety and security by:
- Harm minimisation / regulation of spaces e.g. playgrounds;
- Perceptions of violence / crime education;
- 50 km rule - traffic calming;
- Rural / city divide difference;
- Providing adequate resources to maintain facilities;
- Safe houses; and
- Designing buildings for multiple and constant use.
- Harm minimisation / regulation of spaces e.g. playgrounds;
- Improve and diversify uses and access to public transport:
- Exclusion modes (i.e. skateboarding as a legitimate form of movement);
- Cost, including adult prices for 13 and 14 year olds, off-peak fares, concession cards;
- In rural and regional areas? (links to public transport);
- Regulation of behaviour and policing powers;
- Consult young people about how the public transport systems work; and
- Educate transport companies about the needs of young people.
- Exclusion modes (i.e. skateboarding as a legitimate form of movement);
- Ensure young people's access to public space:
- Public events - evaluate cost and age eligibility for entry;
- Conflicts in use of space - ensure that access allows for sharing resources; and
- Ensure multiplicity of use of existing spaces such as schools.
- Public events - evaluate cost and age eligibility for entry;
- Improve planning and design by:
- Developing a 'children' approach to planning contractual requirement and n
- Not designing in deliberate exclusion;
- Ensuring that financial / commercial considerations are not overriding;
- Involving young people in planning and management decisions; and
- Acknowledge diversity of housing, uses and population needs / flexibility.
- Developing a 'children' approach to planning contractual requirement and n
- Challenge exclusionary practices until they are abolished;
- Educate police / security / community / local business;
- Educating young people of their rights; and
- Advocate for regulation of'private policing', and an independent complaints mechanism;
- Educate the community, public and parents about youth culture;
- Youth rights don't sit in isolation i.e. everyone has rights;
- Multi-national organisation need to play a role;
- Challenge and educate about stereotypes and community perceptions about young people e.g.: young people are not a homogenous group; risk taking is a normal part of some adolescents development / not all; gangs of young people are not necessarily up to no good; young people are both perpetrators and victims of crime; and
- Seed money for business to consult- framework including young people and diversity needs.
- Contractual obligations to include participation of young people in all design tenders;
- Funding / resources - projects developed, controlled and managed by young people; and
- Ensure performance indicators, evaluation mechanisms and reporting involves young people.