By Erica Contini and Melissa Castan

You could be forgiven for not knowing that the Victorian Parliament is passing unprecedented legislation limiting the rights of young people to legal representation in child protection proceedings. The changes were introduced last week, hidden in an obscure bill that gives no indication as to what it really contains, the Justice Legislation Amendment (Cancellation of Parole and Other Matters) Bill 2013.

The ‘other matters’ referred to in the Bill’s title are amendments to the Children Youth and Families Act 2005 (CYFA) that create a new standard for legal representation of children: from now on, only children over the age of 10 can have legal representation on a direct instructions basis (that is with a lawyer who advocates for what the child wants, rather than for what the lawyer considers to be in “the best interests” of the child).

The amendments change not only the previous law but also 30 years of practice in the Children’s Court: until now, all children aged 7 and older were assessed as to their maturity to give instructions in child protection proceedings. The age of 7 was just a presumption, and really the determination of maturity was made on a case by case basis. So, if a child was mature enough to instruct, the Act said s/he must have her/his own lawyer who acts on the child’s instructions. That practice was in line with accepted international human rights law as highlighted by the 2012 Supreme Court decision in A&B v Children’s Court of Victoria.

The Government says it is passing this bill to put into practice recommendations made in 2011’s Protecting Victoria’s Vulnerable Children Inquiry. In recommendation 53, the Inquiry said that the CYFA should be amended to provide that:

A child who is under 10 years of age is presumed not to be capable of providing instructions unless shown otherwise and a child who is 10 years and over is presumed capable of providing instructions unless shown otherwise; A child who is not capable of providing instructions should be represented by an independent lawyer on a ‘best interests’ basis;

Combined with the existing provisions of the CYFA (prior to last week’s amendments), the recommended changes would have ensured that all children would have some form of representation. Crucially, the 10 years of age standard would have been a rebuttable presumption and not a strict arbitrary age limit.

Instead, the Government has decided to pick and choose only some parts of the recommendations in making the changes to the CYFA. The new amendments incorporate an arbitrary age limit whereby only children over 10 years old can have a lawyer acting on a direct instructions model. Under 10, they have no right to instruct their own lawyer.

As most people would understand, children have varying levels of maturity and using a firm age limit is illogical. The Bill changes the standard from an individual case by case assessment to a non-rebuttable presumption against maturity. This is in clear violation of Victorian human rights law, and Australia’s obligations under articles 3 and 12 of the Convention on the Rights of the Child (CROC), in addition to rights protected in the International Convention on Civil and Political Rights (ICCPR). Australia is a party to both treaties.

The changes in the Bill most clearly limit the rights of children aged 7 – 10, who have lost the right to legal representation in proceedings that affect them. This is a clear breach of the right to a fair hearing contained in section 24(1) of the Victorian Charter of Human Rights and Responsibilities Act 2006. Additionally, Article 12 of CROC provides that:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

The proposed amendments in the Bill will remove the ability for those children under 10 years old, who are mature enough to give instructions in child protection cases, to participate in the proceedings.

The changes in this Bill are also in breach of section 17(2) of the Charter which require that decisions be made in the best interests of the child. Article 3 of CROC, in conjunction with Article 12, makes it clear that the best interests of children includes the protection and promotion of their human rights, something that is currently highlighted in section 10 of the CYFA. Additionally, the Bill’s changes are discriminatory as they set an arbitrary limitation on the ability of 7-10 year olds to participate in the legal proceedings; this is in breach of those children’s right to equality before the law, which is protected by s 8(3) of the Charter. Setting an arbitrary age limit is a form of age discrimination.

The most appalling aspect of the proposed changes is that the Government must be aware that they will breach young people’s human rights. The Bill explicitly excludes the operation of these changes to the children who won the right to legal representation in A&B v Children’s Court of Victoria. This is a frank admission by the Government that the changes in the Bill do not conform with human right laws, nor do they conform with the judgment by Justice Garde in A&B. Now, thanks to sheer luck, the two young people in A&B will continue to have a lawyer, when other children their age will not.

Also worrying is the Statement of Compatibility for the bill, which incorrectly assesses the human rights impact of the bill, and perplexingly failed to address any potential impact on the right to equality before the law contained in section 8 of the Charter. Whether this is simply an oversight by the draftsperson in a hastily put together piece of legislation, or an intentional obfuscation on the part of the Government, is unclear.

The proposed changes are indeed troubling. It is unfortunate that Victoria is taking steps to limit the rights of one of the most vulnerable groups in society, children.

As Paula Gerber and Melissa Castan warned last year:

Children have a right to be heard in decisions that affect them and the Victorian Government should reconsider its plans to deny children under the age of 10 the right to instruct a lawyer to represent them in child protection cases. When it comes to children, it is clear that one size does not fit all, and assessments should be made on a case by case basis as to whether a child is mature enough to instruct a lawyer, rather than according to an inflexible rule based on arbitrary factors such as the child’s age.

The right to have a lawyer in court proceedings is a fundamental human right. It should not be denied on the arbitrary basis of chronological age.

Erica Contini is a Melbourne lawyer and teaches in the Monash Law Faculty. Melissa Castan is a Deputy Director in the Castan Centre for Human Rights Law, and teaches in the Monash Law Faculty. The views in this blog are their own.

People are encouraged to contact their local Member of Parliament if they are opposed to these changes. Click here to contact the Minister for Children and Early Childhood Development, The Hon. Wendy Lovell, MLC.