Children and young people: the law and human rights

Abstract

[Introduction]:The title of my address ‘Children and Young People: The Law and Human Rights’ builds on the helpful suggestion of the ACT Law Society Executive. Adding the element of ‘human rights’ to the title was creating a rod for my own back. The combination offers a potentially inexhaustible menu of specific topics. Each could be my single concern this evening and I would not be able to do any of them justice. Were I to focus on a particular segment of our young, such as asylum seekers, indigenous peoples, or those who have special disability needs, I would invariably end up spending much of my time speaking about or updating the deficits that were flagged by the comprehensive 1997 report of the Human Rights and Equal Opportunity and Australian Law Reform Commission, Seen and Heard. Regrettably, I doubt that I could fill the rest of my allotted time by telling you the good news of how governments have subsequently remedied the identified problems. In fact, five years have passed since the Report and the Commonwealth Government has not yet formally responded to it. This observation highlights a further problem attending the tyranny of choice within the title of tonight’s address. The actions or inaction of governments, deeply and inevitably, affect the rights of children, both directly and indirectly, perhaps more so than other constituencies in our community. It is therefore hard to avoid levelling a degree of criticism against governments when speaking about children. For judges this gives rise to a particular risk; that such remarks are portrayed pejoratively as political. I think it fair to say that however well-intentioned we may be, our legal system in Australia does not protect the rights of children adequately. We can also say that not much effort has been made to address this problem. Defects operate in the system at a number of levels. One of the most serious defects relates to structure. The protection of children and young people from violation and maltreatment – a subject of intense community concern – is a salient illustration I will now turn to.