Legislative Assembly for the ACT: 1998 Week 10 Hansard (25 November) . . Page.. 3011 ..
MR STEFANIAK (continuing):
In subclause 1B it provides for a young person - who, of course, is under the age of 16 rather than under the age of 18, anyway - to apply to the court for an order. So, a parent in that situation who would not be sympathetic - and that would probably be for very good reason, Mr Stanhope - would, in fact, be excluded. I think it is very different there if you are looking at what the Community Advocate states.
Mr Rugendyke mentioned certain things in relation to the age of understanding for young people. There are a number of things for consideration in relation to young people. Certainly, in terms of the criminal law, if you are under eight years of age you do not have the mens rea, that is, the state of mind, to be able to commit a criminal act. Between the ages of eight and, I think, 14, it depends on whether the young person understands that what they are doing is wrong. Over the age of 14 you are deemed to have that understanding. In family law, children from about the age of 12 onwards are listened to very carefully by the courts in custody and access matters. Indeed, by the time a child is 14, in family law, the child's views tend to be pretty well paramount. But, at the age of 12, that is still not the case. My understanding is that in civil cases parents still sue on behalf of their children under the age of 18. Mr Humphries' amendment refers to a dependent minor under the age of 16; so we are, effectively, talking about 13-, 14- and 15-year-olds. He has also put in this amendment that, basically, the parent only has to be given the opportunity to participate in a discussion. It is not the parent's consent that is absolutely essential. The amendment is very much a watered down version of what Mr Osborne originally had. Mr Humphries has indicated that there are some very real concerns in relation to that, but at least it enables the parent or the guardian to be given the opportunity to participate in the discussion and it gives the dependent minor the opportunity, if there is some valid reason that that person should not participate, the option and the ability to go to court and seek to have that person excluded.
The fact that it was included in the Western Australian legislation is very important in considering legislation of this sort because there is not a lot of it around the country. The fact that there is a Western Australian precedent and that we are adopting legislation that is in effect, that is working legislation, is a very important point as well.
MS TUCKER (1.51 am): I will not be supporting Mr Humphries' amendment here. I was interested to hear how Mr Osborne, Mr Stefaniak and Mr Humphries were so proud to announce that this provision has come from the WA legislation. I have only had today to consider this matter, probably just this afternoon, so that I have not had the opportunity to do any real research on it. However, in that short time I have already been told by one person that, in fact, there are quite serious problems in WA as a result of this provision, that there are young people who are not prepared to speak to their parents, who are not prepared to go to court and who are therefore ending up in quite dire circumstances.
If the members proposing this amendment are going to persuade us that this is a good model and that the precedent is a good precedent, they need to give us a lot more information than: "Isn't it great. They did this in WA". We would like to have had more time today to evaluate how it has been working in Western Australia, as it appears that it is causing problems for young people. The rights of the child are certainly at issue here.