Law in Practice

How can children be adequately protected in society without impeding on their rights and freedoms?

History of Child Rights Globally

Children were once treated like small adults with few rights.

Industrial Revolution led to laws limiting child labour and improving education.

The UN Convention on the Rights of the Child (1989) set global standards for child rights, including protection, education, and health.

Why Are Children Treated Differently in the Criminal Justice System?

• Children’s brains and understanding are still developing.
  
  

• The system focuses on rehabilitation rather than punishment.
  
  

• Special courts and laws protect children’s rights and vulnerability.

Development of Child Rights

• Early laws limited child labour and promoted schooling.
  
  

• The 1959 UN Declaration started global recognition of child rights.
  
  

• The 1989 UNCRC made child rights legally binding worldwide.
  
  

• Countries keep improving laws to protect and support children.

Convention on the Rights of the Child (CROC)

• An international treaty adopted by the UN in 1989.
  
  

• Sets out rights for children under 18, including:
  
  

  • Right to education, health, protection, and to have their views heard.
    
    

• Almost all countries have agreed to follow it, including Australia.

Australia’s Reservation to CROC

• Australia agreed to most parts but placed reservations on some articles.
  
  

• Mainly about parental rights and responsibilities, meaning:
  
  

  • Parents still have the main role in guiding and deciding for their children.
    
    

• Reservations reflect concerns about balancing children’s rights and parental authority.

Effectiveness of CROC in Protecting Children

• Strengths

• Sets global standards for children’s rights.
  
  

• Encourages laws and policies to protect children.
  
  

• Widely accepted by almost all countries.

Effectiveness of CROC in Protecting Children

• Limitations

• Not always legally binding in countries.
  
  

• Some countries have reservations or don’t fully implement it.
  
  

• Weak enforcement and no strong penalties.
  
  

• Cultural and economic barriers limit protection.

The Gillick Case (Gillick v West Norfolk, 1985)

• A legal case in the UK about whether doctors can give contraceptive advice to children under 16 without parental consent.
  
  

• The court ruled that if a child is mature enough to understand, doctors can provide treatment without parents knowing.
  
  

• Significance:
  
  

  • Recognises that children can have some legal rights to make decisions about their own health.
    
    

  • Influences laws on children’s consent and autonomy.

Why are children in need of specific protection in criminal and civil law in Australia?

Civil Law

• Deals with disputes between individuals or organisations.
  
  

• Usually involves compensation or orders (e.g., contracts, family law).
  
  

Aim: resolve conflicts and protect rights.

Criminal Law

• Deals with crimes against society or the state.
  
  

• Involves punishment like fines, community service, or imprisonment.
  
  

Aim: maintain public order and safety.

Existing Civil and Criminal Laws Relating to Children

• Births, Deaths and Marriages Registration Act 1995 (Civil Law)

• Requires legal registration of births, deaths, and marriages.
  
  

• Provides children with a legal identity (birth certificate).
  
  

• Important for accessing services like healthcare and education.
  

Existing Civil and Criminal Laws Relating to Children

• Australian Citizenship Act 2007 (Civil Law)

• Sets rules for citizenship, including for children born in Australia or overseas.
  
  

• Ensures children’s legal status and rights as Australian citizens.
  

Existing Civil and Criminal Laws Relating to Children

• Children and Young Persons (Care and Protection) Act 1998 (Criminal and Civil Law)

• Protects children from abuse, neglect, and harm.
  
  

• Gives authorities power to intervene and provide care.
  
  

• Can involve criminal charges against offenders (criminal law).
  
  

• Also covers civil processes for child welfare and protection.

Department of Health and Community Services (NT) v JWB (Marion’s Case) 1992 HCA 15

• Background

• Marion was a disabled child whose parents and the state disagreed about whether she should have a sterilisation operation.
  
  

• The case went to the High Court of Australia to decide who had the legal authority to consent.

Department of Health and Community Services (NT) v JWB (Marion’s Case) 1992 HCA 15

• Court’s Decision

• The High Court ruled that the parents do not have automatic authority to consent to non-therapeutic medical procedures (like sterilisation) for their child.
  
  

• The court said such decisions require court approval to protect the child’s rights.

Department of Health and Community Services (NT) v JWB (Marion’s Case) 1992 HCA 15

• Significance of the Case

• Established that parents’ rights are not absolute when it comes to serious medical decisions for children.
  
  

• Recognised the need to protect children’s bodily integrity and human rights.
  
  

• Set a precedent that the court must be involved in major medical decisions affecting children’s welfare.
  
  

• Influenced laws and policies about consent and child protection in healthcare.

Department of Health and Community Services (NT) v JWB (Marion’s Case) 1992 HCA 15

• Was the Court’s Ruling Correct? (Arguments for)

• Protects vulnerable children from irreversible decisions without proper oversight.
  
  

• Ensures decisions are made in the best interest of the child.
  
  

• Balances parental rights with children’s rights and state’s protective role.

Department of Health and Community Services (NT) v JWB (Marion’s Case) 1992 HCA 15

• Was the Court’s Ruling Correct? (Arguments against)

• Some say it limits parental rights and can delay urgent decisions.
  
  

• Others believe parents know best about their child’s welfare.
  

Department of Health and Community Services (NT) v JWB (Marion’s Case) 1992 HCA 15

• Was the Court’s Ruling Correct? (overall)

• Overall, most legal experts agree the ruling was correct and necessary to safeguard children’s rights.

What is a Contract

• A contract is a legal agreement between two or more parties.
  
  

• To be valid, a person must usually be an adult (18+).

Minors and Contracts – Minors (Property and Contracts) Act 1970 (NSW)

• Minors (under 18) generally can’t make binding contracts, except when:
  
  

  • The contract is for essential goods or services (e.g. food, medical care, employment).
    
    

  • It is considered beneficial to the minor.
    
    

• Otherwise, contracts with minors may be void or unenforceable.

Guarantor

A guarantor is someone (usually an adult) who agrees to be legally responsible for a contract if the other person (e.g. a minor) cannot pay or fulfil their part.

Torts

• A tort is a civil wrong (e.g. negligence, trespass, defamation).
  
  

• Minors can be sued or sue others in tort law if they understood their actions and the harm caused.
  
  

• The court considers their age and maturity.

Leaving Home in NSW

• There is no set legal age in NSW for when a child can leave home, but:
  
  

  • They must be in a safe environment.
    
    

  • Parents or carers are responsible for the child until they are 18.
    
    

  • If a child is at risk, authorities (e.g. police or FACS) can intervene.

Children (Criminal Proceedings) Act 1987 (NSW)

• Sets out rules for how children (under 18) are treated in the criminal justice system.
  

• Key points:
  

  • Children have the right to a fair trial, usually in the Children’s Court.
    

  • Focuses on rehabilitation, not punishment.
    
    

  • Limits how children can be questioned or arrested.
    

Presumption

• A legal assumption made by the court unless proven otherwise.
  
  

  • Example: the law presumes a child under 10 cannot commit a crime.

Rebuttable Presumption 

• An assumption that can be challenged and overturned with evidence.
  
  

  • For children aged 10–13, it is presumed they don’t understand their actions were wrong (called doli incapax), but the prosecution can try to prove otherwise.

Detention

• Detention means being held in custody by authorities.
  
  

• For children, this usually means juvenile detention (not adult prison).
  
  

• Used as a last resort, with focus on rehabilitation and education.

Young Offenders Act 1997 (NSW)

• Aims to divert young people (10–17 years) away from courts and detention.
  
  

• Focuses on rehabilitation, not punishment.
  
  

• Encourages taking responsibility and repairing harm (restorative justice).
  
  

• Applies mostly to less serious offences (not serious violent crimes).

Summary Offence

• A less serious crime (e.g. shoplifting, trespass).
  
  

• Usually dealt with in the Children’s Court.
  
  

• Often eligible for warnings, cautions or conferences under the Young Offenders Act.

Indictable Offence

• A more serious crime (e.g. robbery, assault causing injury).
  
  

• Heard in a higher court (District or Supreme Court).
  
  

• May not be eligible for diversion, especially if very serious.

Young Offenders Diversionary Process

1. Warning – for very minor offences, given by police on the spot.
   
   

2. Caution – more formal, involves a recorded meeting with police and child + parent.
   
   

3. Youth Justice Conference (YJC) – a meeting between the offender, victim, police, and family to talk through the harm and agree on steps to repair it.
   

Young Offenders Act

• Purpose

Purpose:

• To handle young people (usually under 18) who commit crimes differently from adults.
  
  

• Focuses on rehabilitation and education rather than punishment.

Young Offenders Act

• Key Features

• Young offenders are treated differently to protect their future.
  
  

• Encourages community-based sentences instead of jail where possible.
  
  

• Allows for warnings, cautions, and diversion programs.
  
  

• Emphasizes accountability while considering the age and maturity of the offender.
  
  

• Provides special court procedures and protections during trials.
  
  

• Aims to reduce reoffending by addressing underlying causes like education and family support.
  

Young Offenders Act

• Importance

• Recognizes that young people can change and should be given a chance to learn from mistakes.
  
  

• Seeks to balance community safety with fair treatment of young offenders.

Strengths of the Young Offenders Act

• Reduces reoffending by helping youth learn from mistakes.
  
  

• Avoids court and detention for minor crimes.
  
  

• Involves families and victims in the process.
  
  

• Promotes rehabilitation, not punishment.
  
  

• Less costly than court processes.

Limitations of the Young Offenders Act

• Doesn’t apply to serious crimes.
  
  

• Police have a lot of discretion (they choose who gets a caution or conference).
  
  

• Some say it’s used more for certain groups than others (e.g. issues with equity).
  
  

• May not work if the offender doesn’t take it seriously.

Youth Justice Conferencing

• A meeting between a young offender, the victim(s), their families, and community members.
  
  

• It’s a way to resolve the issue outside of formal court.
  

Youth Justice Conferencing

• Purpose

• To encourage the young person to take responsibility for their actions.
  
  

• To repair harm caused to the victim and community.
  
  

• To agree on ways the offender can make amends.
  

Youth Justice Conferencing

• How it works

• A trained facilitator guides the meeting.
  
  

• Everyone discusses the offense and its impact.
  
  

• The young offender agrees to a plan, which could include apologies, community service, or other reparations.

Youth Justice Conferencing

• Benefits

• Gives victims a voice.
  
  

• Helps young offenders understand the consequences.
  
  

• Can reduce reoffending by promoting accountability and support.
  
  

Effectiveness of Youth Justice Conferencing

• Gives victims a voice and helps offenders understand the impact of their actions.
  
  

• Reduces reoffending in many cases.
  
  

• Encourages accountability and apology.
  
  

• Seen as more meaningful than punishment alone.
  
  

• However, it depends on the offender’s attitude and willingness to participate.

Are legal responses sufficient in protecting the rights of children?

1. Convention on the Rights of the Child (CROC)

What it does:

• Sets international standards for child protection, health, education, and participation.
  
  

• Australia has signed it and must consider it when making laws.

Effectiveness of CROC

• Helps guide law and policy.
  
  

• Promotes global awareness of child rights.
  
  

• But it’s not fully enforceable in Australia unless included in domestic law.
  
  

• Some reservations reduce its impact.

2. NSW Commission for Children and Young People

What it does:

• Advocates for children's rights and wellbeing in NSW.
  
  

• Reviews laws and policies affecting children.
  
  

• Provides advice to the government.
  

Effectiveness of NSW Commission for Children and Young People

Effectiveness:

• Raises awareness and gives children a voice.
  
  

• Independent and focused on youth issues.
  
  

• But it has no power to enforce decisions.
  

3. NSW Children’s Court

What it does:

• Handles criminal cases involving children (10–17) and care and protection cases.
  
  

• Focuses on rehabilitation and privacy.

Effectiveness of NSW Children’s Court

• Tailored to the needs of children.
  
  

• Protects identity and allows flexible sentencing.
  
  

• But some say more resources are needed for support and follow-up.

4. Department of Communities and Justice (DCJ)

What it does:

• Provides child protection, housing, and justice services.
  
  

• Investigates risk of harm and removes children if necessary.

Effectiveness of DCJ

• Provides vital protection and support.
  
  

• Has legal powers to act.
  
  

• Criticised for being under-resourced and sometimes slow to respond.

5. Legal Aid NSW

What it does:

• Offers free legal help to children in criminal and family law matters.
  
  

• Represents young people in court if they cannot afford a lawyer.
  

Effectiveness of Legal Aid NSW

• Increases access to justice for vulnerable children.
  
  

• Reduces unfair treatment.
  
  

• Limited funding means not all children get full support.

6. NSW Ombudsman

What it does:

• Investigates complaints about government departments, including child services.
  
  

• Ensures children are treated fairly by public systems.
  

Effectiveness of NSW Ombudsman

• Independent and holds services accountable.
  
  

• Can recommend changes.
  
  

• Cannot force action, only report and advise.
  

7. COAG (Council of Australian Governments)

What it did:

• Used to coordinate national responses to child welfare (e.g. child protection frameworks).
  
  

• Replaced by National Cabinet in 2020.
  

Effectiveness of COAG

• Helped create consistent policies across states.
  
  

• But was often criticised for being slow and inefficient.
  
  

• Its replacement (National Cabinet) is less focused on children’s issues.

Overall Evaluation of legal responses

Legal responses in NSW aim to protect children, promote rights, and ensure fair treatment, especially in criminal, care, and civil matters.
Strengths:

• Special courts, laws, and services focused on children.
  
  

• Access to legal aid and child advocacy bodies.
  Weaknesses:
  
  

• Some systems are underfunded or have limited power.
  
  

• Rights from CROC aren’t always fully enforceable.
  
  

• More focus is needed on prevention and long-term support.

Why are non legal responses to protecting child rights important?

Definition: Non-Legal Response

A non-legal response is any action outside the legal system (not made or enforced by law) that helps protect or promote children’s rights.
This can include support services, advocacy, education, or community groups.

1. Kids Helpline

• A free, 24/7 counselling service for children and young people aged 5–25.
  
  

• Offers support through phone, webchat, or email.
  
  

• Helps with mental health, abuse, bullying, family issues, and more.
  

Effectiveness of KH

• Easily accessible and confidential.
  
  

• Helps children feel safe and supported.
  
  

• Empowers kids to speak up or seek further help.
  
  

• Limited by funding and can’t directly intervene in dangerous situations.

2. Australian Childhood Foundation (ACF)

• Supports children affected by abuse, neglect, and trauma.
  
  

• Offers counselling, advocacy, and education programs.
  
  

• Trains professionals who work with children.

Effectiveness of Australian Childhood Foundation (ACF)

• Strong focus on healing and trauma recovery.
  
  

• Raises public awareness about child protection.
  
  

• Relies on donations and government support—limited reach.
  

Australian Council of Trade Unions (ACTU)

• Advocates for fair work rights, including protections for young workers.
  
  

• Campaigns against exploitation of children in the workforce.
  
  

Effectiveness of Australian Council of Trade Unions (ACTU)

Effectiveness:

• Promotes safe, fair work environments.
  
  

• Strong voice for youth employment rights.
  
  

• Less focused on broader child welfare (mainly work-related issues).

4. NSW Advocate for Children and Young People (ACYP)

• Listens to and represents children’s views in NSW government decisions.
  
  

• Runs surveys, consultations, and reports on issues affecting youth.
  

Effectiveness of NSW Advocate for Children and Young People (ACYP)

Effectiveness:

• Gives children a voice in law and policy-making.
  
  

• Publishes useful research to inform the government.
  
  

• Has no power to enforce change—can only advise.

5. NSW Office of the Children’s Guardian (OCG)

• Works to keep children safe in organisations.
  
  

• Handles Working with Children Checks.
  
  

• Sets standards for child-safe practices in organisations.

Effectiveness of NSW Office of the Children’s Guardian (OCG)

Effectiveness:

• Important in screening people who work with children.
  
  

• Offers training and resources to prevent abuse.
  
  

• Doesn’t deal directly with individual children’s problems.
  

Effectiveness of Kids Helpline

Strengths:

• Confidential, free, and available 24/7.
  

• Provides immediate emotional support and crisis help.
  

• Empowers children to seek help, improving mental health and safety.
  

• Can refer serious cases to legal or welfare services.
  

Limitations:

• Cannot take direct action (e.g. remove a child from danger).
  

• High demand may affect response time.
  

• Relies on funding to continue operating.
  

Conclusion:
Kids Helpline is a highly effective non-legal support service for protecting children's rights to safety, mental health, and expression, but it works best alongside legal systems and other services.

2: Bali Bombings

Why did the Bali Bombings have such a significant impact on Australia at the time?

What were the Bali Bombings?

• On 12 October 2002, two bombs exploded in the tourist district of Kuta, Bali, Indonesia.
  
  

• The attacks targeted nightclubs popular with tourists, especially Australians.
  
  

• 202 people were killed, including 88 Australians, and hundreds were injured.
  
  

• A third, smaller bomb exploded near the US consulate but caused no injuries.
  
  

• The attacks were carried out by Jemaah Islamiyah (JI), a radical Islamic terrorist group.

Conditions that gave rise to the bombings

1. Terrorism and Extremism
   
   

   • Rise of extremist groups like Jemaah Islamiyah (JI) in Southeast Asia.
     
     

   • JI aimed to establish an Islamic state and opposed Western influence.
     
     

2. Political and Social Factors
   
   

   • Regional instability in Indonesia and surrounding countries.
     
     

   • Weak law enforcement and intelligence allowed extremist groups to grow.
     
     

3. Global Context
   
   

   • Post-9/11 global focus on terrorism increased tensions.
     
     

   • Western countries are seen as targets due to foreign policies in the Middle East and Asia.
     
     

4. Local Grievances
   
   

   • Economic inequality and political dissatisfaction in Indonesia.
     
     

   • Some local support or sympathy for extremist causes.
     
     

5. Target Choice
   
   

   • Bali was popular with Western tourists, symbolizing Western presence.
     
     

• The attack aimed to create fear and disrupt tourism, a major economic sector.
  

  
  

The legal responses to the 2002 Bombings

• Investigation and Arrests

• Indonesia’s Detachment 88 (special counter-terrorism police unit) led the investigation and captured suspects.
  
  

• The Indonesian National Police (INP) supported Detachment 88 in intelligence and law enforcement.
  
  

• The Australian Federal Police (AFP) provided intelligence, forensic assistance, and helped with investigations.
  

The legal responses to the 2002 Bombings

• Prosecution and Sentencing

• Terrorists were prosecuted under Indonesia’s anti-terrorism laws.
  
  

• Key perpetrators received death sentences or long prison terms.
  
  

The legal responses to the 2002 Bombings

• New Anti-Terror Laws

• Indonesia introduced stricter anti-terror legislation after the bombings, increasing law enforcement powers and penalties.

The legal responses to the 2002 Bombings

• International Cooperation

• Enhanced cooperation between Indonesian agencies (Detachment 88, INP) and foreign partners (AFP, others).
  
  

• Joint efforts improved intelligence sharing and counter-terrorism operations across the region.

The effectiveness of legal responses

• Strengths

Strengths:

• Detachment 88’s swift action helped dismantle terrorist cells.
  
  

• INP and AFP collaboration strengthened investigation and prosecution.
  
  

• New laws equipped authorities with better tools to prevent attacks.
  
  

• Regional and international cooperation improved security.
  

The effectiveness of legal responses

• Weaknesses

Weaknesses:

• Initial gaps in intelligence and law enforcement before the attack.
  
  

• Concerns over civil rights due to expanded police powers.
  
  

• Terrorist groups remain active, showing need for ongoing vigilance.

The Arrest of Hambali

• Grounds of the arrest

1. Grounds for Arrest

• Arrested (2003) in Thailand by US and Thai authorities.
  
  

• Alleged:
  
  

  • Key leader in Jemaah Islamiyah (JI).
    
    

  • Planned/coordinated the 2002 Bali Bombings & other terrorist attacks.
    
    

  • Linked to al-Qaeda funding and training.

The Arrest of Hambali

• Why the Arrest Was Controversial

2. Why the Arrest Was Controversial

• No formal extradition process — captured under US-led counter-terrorism operations.
  
  

• Held without trial for years in CIA “black sites” → alleged torture/interrogation methods (waterboarding, sleep deprivation).
  
  

• Breach of due process under international human rights law.

The Arrest of Hambali

•  Impact on Arrests & Trials of Others Involved

3. Impact on Arrests & Trials of Others Involved

• Evidence against other suspects potentially tainted due to claims it was obtained under torture.
  
  

• Delays in trials of Bali bombing suspects because some testimony/evidence came from Hambali’s interrogations.
  
  

• Human rights groups argued this undermined the fair trial rights of others charged.
  
  

• Contributed to international criticism of US detention practices and strained cooperation in terrorism cases.

Outline the legislative changes made in Indonesia after the Bali Bombings

• Anti-Terrorism Laws were introduced retrospectively (applied to crimes committed before the law existed).
  
  

• Gave Indonesian authorities greater powers to:
  
  

  • Arrest and detain suspects
    
    

  • Conduct trials for terrorism
    
    

• Allowed for harsher penalties (e.g. death penalty or life imprisonment)

Explain whether this was positive or negative in achieving justice for the bombings

• Positive aspects

Positive aspects:

• Enabled prosecution and punishment of those responsible (e.g. Amrozi and others)
  
  

• Provided a legal framework to combat future terrorism
  
  

• Helped bring closure to victims’ families

Explain whether this was positive or negative in achieving justice for the bombings

• Negative aspects

Negative aspects:

• Retrospective laws challenge the rule of law and legal fairness
  
  

• Criticised by human rights organisations for breaching international legal standards

Explain whether this was positive or negative in achieving justice for the bombings

• Judgement (overall)

The changes were partly effective in achieving justice. While they ensured punishment and improved anti-terror measures, the use of retrospective laws raised concerns about fairness and legal integrity.

Evaluate the Legislative Responses to the Bali Bombings 

• Indonesia

Indonesia's Legislative Response

• Introduced Anti-Terrorism Law (2002), applied retrospectively.
  
  

• Allowed prosecution of those responsible, such as Amrozi, Mukhlas, and Imam Samudra.
  
  

• Included tough penalties like the death penalty and life imprisonment.

Evaluate the Legislative Responses to the Bali Bombings 

• Indonesia

  • Strengths

• Strengths:
  

  • Enabled quick prosecution and punishment.
    

  • Sent a strong message about counter-terrorism.
    

Evaluate the Legislative Responses to the Bali Bombings 

• Indonesia

  • Weaknesses

• Weaknesses:
  
  

  • Retrospective law challenged the rule of law.
    
    

  • Criticised by human rights groups as violating international legal standards.
    
    

  • Raises concerns about legal fairness and justice.

Evaluate the Legislative Responses to the Bali Bombings 

• Australia

Australia's Legislative Response

• Passed new counter-terrorism laws under the Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 and others.
  
  

• Increased powers for ASIO, AFP, and border security agencies.
  
  

• Strengthened laws on preventative detention, control orders, and foreign incursions.
  
  

• Supported victims and families through victims’ compensation schemes and consular assistance.
  

Evaluate the Legislative Responses to the Bali Bombings 

• Australia

  • Strengths

• Strengths:
  
  

  • Helped prevent future attacks through increased surveillance and intelligence sharing.
    
    

  • Improved domestic counter-terrorism capacity.
    
    

  • Supported victims and strengthened international cooperation.
    

Evaluate the Legislative Responses to the Bali Bombings 

• Australia

  • Weaknesses

• Weaknesses:
  
  

  • Some laws were seen as limiting individual rights (e.g. detention without charge).
    
    

  • Ongoing debate about the balance between security and civil liberties.
    

Evaluate the Legislative Responses to the Bali Bombings 

• Overall 

Overall Evaluation

• Both Indonesia and Australia responded swiftly and strongly to the Bali Bombings through legislative change.
  
  

• Indonesia's response was effective in securing convictions, but undermined legal principles by using retrospective laws.
  
  

• Australia's response improved national security and international cooperation, though some laws raised concerns about civil rights.
  
  

• Together, these responses show a strong commitment to justice and prevention, but highlight the challenge of balancing security with legal and human rights protections.