Children and the Law- An Address by the Hon Alastair Nicholson AO RFD QC, 12th of July 2012
During my time at the Bar, I could not have described myself as either a children’s advocate or a children’s lawyer. However, I had seen enough during my early days sitting around either waiting to be heard or appearing in the Magistrate’s Court in what were then called ‘Maintenance Cases’ to feel a sense of deep disquiet at the way children were treated in the legal system. Although never a family law barrister, in those non specialist days I later appeared in enough divorce and related cases for that feeling of disquiet to deepen.
The Family Law Act 1975 represented a great advance, particularly because of its incorporation of other professionals such as psychologists and social workers as part of the court’s approach to family issues and because it removed the issue of fault from proceedings for dissolution of marriage. The setting up of a separate specialist court and a specialist appellate court were also great steps forward. However there are still many lessons to be learned as I was to find when I later became Chief Justice.
My first five years on the Bench from 1982 were spent on the Supreme Court of Victoria, where I came to envy the Family Court’s ability to call on other professionals to assist it in the decision making process. The Supreme Court at that time retained jurisdiction over children born outside marriage. Most of its judges had little experience with this type of case and their task was made harder by the absence of in house counsellors.
On becoming Chief Justice of the Family Court in 1988 I came to appreciate their value even more. I think it fair to say that it was my experience in that position that converted me into a strong advocate for children’s rights and the importance of the law taking an entirely different approach to children than it had traditionally done.
There were a number of catalysts for this. First, I was blessed with high quality staff who opened my eyes to many problems. They included the late Danny Sandor, a brilliant lawyer and dedicated advocate for children’s rights and who had a deep understanding of the GLBT communities and Margaret Harrison, a lawyer who had worked with the Institute of Family Studies and had a keen appreciation of gender issues. Finally my media adviser, Bill Jackson, had a keen interest in Aboriginal communities and South East Asia that led me to Timor Leste and more recently to Cambodia where we are trying to improve child justice.
Secondly I became concerned with community attitudes towards of family violence and particularly its effect upon children. At that time violence towards women was not treated sufficiently seriously, an attitude that still lingers. Similarly the attitude was that if the violence was not directed towards the children then it was somehow irrelevant.
Paradoxically I think that in the Court itself and amongst legal practitioners, the abolition of fault as grounds for divorce produced an attitude that the court did not wish to examine marital misconduct in any detail. Through a series of appellate decisions we managed to turn this attitude around.
Another issue that I faced soon after appointment was whether court approval was required for invasive non therapeutic medical procedures such as the sterilisation of children.
Until the High Court finally determined the issue in Marion’s case (1992) 175 CLR 218 there was a strong view within and outside the Court that parental consent was all that was necessary. Marion’s case was an appeal from a decision of the Full Court over which I presided, having stated a case to it at first instance. The Full Court decision on the case stated was inconclusive but the Full Court referred the matter to the High Court. I had held that a court’s consent was a necessary safeguard for the child in question, but my colleagues did not fully agree. The alternative approach completely excluded any consideration of whether the procedure was in the child’s best interests and the High Court, by a majority, agreed with my approach.
Of course there still remains an issue as to whether sterilisation should ever be performed for non medical reasons that is referred to in the recent UNCR Committee report in relation to Australia. However Marion was a considerable advance on what went before and in any event I think that there are a few cases where this procedure can be justified. There are certainly other borderline medical/surgical issues where it is in my view desirable that a court’s consent should be obtained before they are attempted on a child.
Thirdly I became concerned about attitudes towards child representation. The Family Law Act 1975 provided for the appointment of child representatives by the court but did not specify the circumstances in which an order should be made or set out the duties of the separate representative, later child representative. No training was provided for persons appointed and there were different practices as between judges and registries. For example Victorian judges almost never made an order for a child representative and had the view that they were almost useless when they were appointed.
I felt that something had to be done about this and in a case of Re K (1994) 17 Fam LR 537 the Full Court set out a list of circumstances where such an appointment should be made. That caused enormous uproar, particularly in Victoria where I was accused of destroying the then Victorian Legal Aid Commission.
It was not until 2006, when the provision for appointment of a children’s lawyer was first made, that any statement appeared in the FLA as to what was the role and duties of this person. There still remains a problem because of the late stage when the appointment is made and the uncertain role of the person concerned once they are given the description of ‘lawyer’.
The Howard Government in an ill advised move amended the relevant legislation to limit the availability of child representation in international child abduction (Hague Convention) cases. Hopefully the High Court will take the opportunity to look hard at this legislation in the context of a child’s right to be heard in a current case before it.
On the issue of a child’s right to be heard, I am still troubled by judicial reluctance to interview children in Australia. I must say that when I did it I did not regret it and on one occasion I avoided making a decision that would have been wrong. It is not really good enough to say that it is sufficient for a child to have been interviewed by someone else, particularly if the child is old enough and wishes to speak to the judge. Our studies of the situation in Germany in relation to less adversarial trials revealed that it was common for German judges to interview children and they found it a very useful tool to resolve parental disputes. It also seems to be much more consistent with CRC provisions on the right to be heard.
I also think that much greater use should be made of less adversarial procedures and the procedures dispensing with the need for technical compliance with the Evidence Act. In many cases adversarial approaches cloud the real issues and direct attention away from the best interests of the child.
To me however there are two issues that arose during my time at the Court and still resonate as major political issues and are issues that make me ashamed of the leadership of my country.
These are the treatment of asylum seekers and of the Aboriginal and Torres Strait Islander people of this country. Both issues are intimately bound up with our treatment of children.
I should perhaps preface these remarks with the fact that in my role as Chief Justice of the Family Court I became particularly concerned that there was no official recognition of the rights of children in this country in the form of an ombudsman or human rights commissioner in any of the States or the Commonwealth at the commencement of my term of office.
I had the opportunity of meetings and discussions with each of the Children’s Ombudsmen in the Scandinavian countries and could see the enormous importance of such an office. In my role as CJ I did not have a brief to perform such a role but at the same time the Family Court did and does have a welfare jurisdiction and I took the view that the Court’s jurisdiction over the welfare of children and indeed its general jurisdiction in relation to children at least gave me the right to express views on matters that affected their rights and welfare.
While convention requires judges to make public statements with care, that is all too often used as a justification for saying nothing when one has a duty to say something about important issues in which one has a direct interest and arguably at least, a duty to bring them to public notice.
Let me first turn to asylum seekers, which is an issue that I directly affected me as Chief Justice of the Family Court. It will be recalled that it was the Keating Government that first acted to provide for mandatory detention of asylum seekers and set up a detention facility at Port Hedland where we began the appalling process of detaining asylum seekers and their children.
I accepted an invitation to speak on the rights of children and took the opportunity to criticise the Government for setting up what I described as a virtual concentration camp in a remote area and in particular for wrongly detaining children contrary to CRC. That set up a media hue and cry with my remarks appearing on the front page of the Australian, which surprisingly enough, agreed with me. Then Immigration Minister Senator Bolkus was depicted in a cartoon dressed in Nazi uniform outside of a concentration camp and even Greg Sheridan expressed support for my remarks. The Government response was predictable and I was criticised for speaking publicly on a political issue.
Subsequently in 2001 a case came before the Family Court involving asylum seeker children where it was argued that the Court in its welfare jurisdiction should order their release from detention in light of evidence as to their extreme psychological deterioration. The trial judge dismissed the application, but on appeal the Full Court over which I presided held by a majority of two to one that the Court did have jurisdiction to make such an order and adjourned the further hearing to enable the presentation of further evidence. Subsequently another Full Court directed the Minister to release the children. The Minister did so but appealed our decision to the High Court which unanimously held that we lacked jurisdiction to make the order (B and B v Minister of Immigration etc.(2003) 30 Fam LR 676).
Normally one might feel chastened by a unanimous defeat in the High Court but I think that I can say that I have never been as proud of any decision that I have made as a judge as I am of this one. I still think that it was morally and I believe legally correct, even though the High Court thought otherwise. I think that the Mason High Court might have taken a different view having regard to its decision in Marion’s case. In particular I believe that there is still room for the argument that we adopted that the CRC had been adopted into Australian law. A practical result of our decision was that the children were not returned to detention and revulsion against the practice of detaining children gained force to the point where both major parties have the policy if not the practice of refraining from doing so.
However the immigration debate continues, fuelled by what I believe to be the morally indefensible attitude of both major parties. The Opposition’s policy of turning around the boats and reintroducing temporary protection visas is a combination of refined cruelty and criminal disregard for human life, despite the crocodile tears shed in Parliament by its proponents. The Government policy of effectively scapegoating refugees by sending them back to the bottom of a non-existent queue in return for taking others is only marginally better and the so-called Nauru and /or PNG solution that both parties are flirting with is a pathetic return to past morally bereft policies.
As for temporary protection visas, those promoting them should pay regard to the possibility that boats such as the SIEV X were so full of women and children because that was the only chance of them joining their husbands in Australia. In my view the use of these visas is an evil policy designed to separate families that has no possible redeeming feature.
It seems that what both parties really want is to appeal to xenophobic views rejecting the arrival of these people in Australia when the solution of receiving them in a humane fashion and processing their applications quickly and efficiently, where necessary after their arrival in Australia is so obvious. The calumnies heaped on the Greens are pure exercises in hypocrisy because they are the only party with a decent and humane policy towards refugees. I believe that we must continue to oppose the Government and Opposition policies which, taken together or separately, are the real reason that people find it necessary to expose themselves to the horrible risks associated with travelling by boat to Australia.
It is more than time that we got rid of such pejorative and inappropriate terms such as ‘queue jumping’ and ‘border protection’ and brought some humanity to bear on this issue. These are human beings, many of them families with children who are affected so let us stop talking nonsense about ‘stopping the boats’, and ‘processing’ people and get on with helping them.
Our other great shame is our Aboriginal policy or lack of it.
At the Court I early became concerned about the small number of cases involving Aboriginal and Torres Strait Islander people that came to the Court’s attention, particularly in areas like Darwin, Alice Springs and Cairns where these people represent a considerable proportion of the population. We had discussions with a number of communities and came to the conclusion that there was considerable distrust of Courts and a cynical view that our decisions would always favour the white person if there was one involved. We were very successful in overcoming that problem by the appointment of Aboriginal and Torres Strait Islanders as family consultants on the staff of the Court to act as a liaison between the communities and the Court.
As a result of this process I gained a much greater insight into the problems of Aboriginal people and the neglect of them by the greater white community.
We then had the stolen generation report and the negative reaction of the then Prime Minister, John Howard to the question of an apology. In 1997 I was chairing a World Congress on Family Law and the Rights of Children and Youth in San Francisco. I had arranged for Prof Mick Dodson, one of the authors of the ‘Bringing Them Home’ report to speak there and he strongly attacked the Government. When asked by the media I agreed with his view that the PM should apologise. This gave rise to considerable publicity in the media in Australia, accompanied by threats against me in my judicial position coming from sources within the then Government and letters from the AG requesting a withdrawal, which I refused.
Unfortunately any insight that I had developed into Aboriginal and Torres Strait Islander decisions was not shared by our political leaders then or now. We have had since 2007 the spectacle of politicians of both major parties engaging in a cynical and racist exercise to control the Indigenous people of Australian using policies that have failed throughout the history of white settlement in Australia and are demonstrably failing again. The ‘Intervention’ started by the Howard Government, ostensibly to protect Aboriginal children, has now been continued by the Gillard Government in its appalling ‘Stronger Futures’ legislation for a further 10 years.
The whole exercise has been surrounded by spin rather than substance, more recently involving a series of farcical ‘consultations’ with Aboriginal people, the validity of which even the Government and Liberal and National dominated Senate Committee recently found hard to stomach after hearing almost unanimous evidence as to the failure of the Government to engage in proper consultations as defined by the Australian Human Rights Commission.
Nevertheless this legislation was passed with minimum debate and the support of the major parties and was not even referred to the Committee appointed by the Government to examine legislation for human rights compliance upon the basis that this was unnecessary.
It has caused untold distress to the Indigenous people of Australia and yet such is the paucity of media coverage and active censorship of opposing views by News Limited outlets, most Australians have no appreciation of this distress or the cynical manipulations of both Government and Opposition over this issue. In my view it is open to attack as contravening the Racial Discrimination Act and there may be other grounds of attack open. Unfortunately our continuing failure to enact a Bill of Rights limits those possibilities.
Is it any wonder that this country bears the shame of trenchant criticism in the recent report by the CRC Committee of the UN in areas too numerous to name in this presentation.
Apart from the many deficiencies in relation to the treatment of Aboriginal people and asylum seekers the Committee has pointed to the juvenile justice system as requiring considerable reform in relation to issues such as the minimum age for criminal responsibility, Queensland’s refusal to recognise 17 year olds as children, mandatory sentencing in WA and abuse in juvenile correction establishments.
Similarly our attitudes to corporal punishment of children are trenchantly criticised and particularly our retention of the defence of ‘reasonable chastisement’.
Our treatment of children in care is singled out for particular criticism including inappropriate placements, inadequate screening and training of care givers, shortage of care options, abuse of children in care and placement of Aboriginal children outside their communities. We have obviously learned nothing from the stolen generation debacle.
Our treatment of children with disabilities is also criticised and in particular the significant disparity between educational attainments of those with disabilities compare with those without them.
Our level of mental health funding is criticised as being significantly below that of other developed countries with children and young people facing delay and difficulty in accessing those services and so it goes on.
A report such as this should have been front page news in our newspapers and leading our electronic news services. It should be the subject of considerable parliamentary debate but such is our complacency that it has sunk like a stone.
I know that this audience contains many who are or who wish to be child advocates. I hope that what I have said convinces you that there is plenty of room for action in this country to overcome such a multitude of problems. I urge you not to lose heart. Persistence and intelligent criticism are what is needed and the new media presents more opportunities than ever before to bring abuse of children’s rights to public attention. I believe that when people hear the full story they will take notice. They are just not being given it at present and our political leaders and our media have much to answer for in this regard.
The Hon Alastair Nicholson AO RFD QC was the Chief Justice of the Family Court of Australia from 1988 until 2004. He also studied law at the University of Melbourne and presented on the evening of Thursday July 12th at ‘Child Rights in a Changing World’, one of the events as part of the Australia’s Role in the World Public Lecture Series.