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ABBREVIATIONS USED IN THIS CHAPTER
BDM: Registrar of Births, Deaths and Marriages
BDMRA: Births, Deaths and Marriages Registration Act 1997
CCA: Criminal Code Act
CEO: Chief Executive Officer
CWA: Community Welfare Act 1983
DHCS: Department of Health and Community Services
EA: Education Act
FACS: Family and Children's Services
FLA: Family Law Act 1975 (Cth)
JA: Justices Act
JJA: Juvenile Justice Act
LA: Liquor Act
MSA: Medical Services Act
MVA: Motor Vehicles Act
PAA: Police Administration Act
YJA: Youth Justice Act

4.1 Naming a child

This section deals with the law as it relates to naming children. It also contains some practical information about how to add details to registered information and get a birth certificate. The Births, Deaths and Marriages Registration Act (BDMRA) governs the process of naming in the NT.

Naming at birth

Under the BDMRA all births must be registered. The parents of a child born in the NT must lodge a birth registration statement, usually referred to as a registration form, with the Registrar of Births, Deaths and Marriages (BDM) within 60 days of the date of birth [BDMRA s.16]. Registration forms are available from the BDM offices in Darwin and Alice Springs, and are also distributed to new mothers who birth in NT hospitals. Mothers who birth at home can collect a form from BDM or have it sent through the post. Additional requirements apply to home births if there was no 'responsible person' at the birth (such as a doctor, midwife or health worker) to provide the necessary particulars to BDM [BDMRA s.12]. Generally BDM would require statutory declarations (see Legal documents, chapter 1) from those who witnessed the birth and anyone else who had knowledge of the facts.

A person who fails to register a child can be fined $1000.

The form requires a child to be named [BDMRA s.20], unless the child is stillborn. Both parents have to sign the form, unless there are compelling reasons why they can't. In some circumstances BDM accepts a birth registration statement from a person who is not a parent but who has knowledge of the facts. Parents can choose any given name or surname for their child, except for prohibited names (see Prohibited names, this section). Parents don't have to follow any customary naming practices, so a child could, for example, be given a different surname than the one used by siblings.

Naming by the registrar

If parents are unable to agree on their child's name or have chosen a prohibited name, the BDM assigns a name to the child [BDMRA s.20]. Before the child is named, the BDM issues a written policy, which outlines the principles that are to be followed in the naming of the child. How a name is chosen depends on the circumstances of each case. The policy takes account of cultural naming practices, including the traditional naming practices of Aboriginal parents. For example, it is recognised that there is often a considerable time lapse between when an Aboriginal child is born and when the child is named. In addition, Aboriginal families often do not have surnames in the European sense. Parents who aren't happy with the name BDM has chosen can have the decision reviewed by the Supreme Court. Parents seeking review should seek legal advice.

Parents who can't agree on a child's name can also apply to the Supreme Court to have the dispute resolved [BDMRA s.21]. Again, legal advice should be sought.

Naming on adoption

When a child is adopted by two parents who have the same surname, the child takes that surname. The same rule is applied when there is only one adoptive parent. When adoptive parents have different surnames, the child will take the surname specified in the adoption application that was approved by the court, or another name approved in the adoption order [Adoption of Children Act (ACA) s.48].

An adopted child takes as first names, the names specified in the application for adoption approved by the court.

The court won't approve a name as a surname or first name unless it is satisfied that, as far as is practicable, the wishes and feelings of the child have been taken into account [ACA s.48].

An adoptive parent can change the name of their adopted child, although if the child is aged 14 years or older or aware of the meaning and implications of the new name, the child's consent is required (see Changing names, chapter 3).

Adding information later

Under the BDMRA, details of parents can be included in the register after the birth is registered [s.19]. For example, details about a child's father can be added several years after the child's birth, and a child's name changed to accommodate the new information. An application to add father's details can be made at any time. No time limit applies. If the parents consent to adding the father's name to the birth certificate then they can collect an application form from BDM. This form is to be completed by both parents. If a father refuses to sign the application form then the BDM cannot enter his name on the birth certificate, even if parentage testing proves that he is the father. The BDM will only include the father's name if a court orders the registrar to do so or if a court makes a finding that he is the father of the child [s.19]. If a court order is obtained the mother will have to file the court order with the BDM together with a statutory declaration (seeLegal documents, chapter 1) confirming the particulars of the father that are to be added to the certificate.

Prohibited names

The BDM can refuse to register a name or change a name to something that is prohibited under the BDMRA [ss.20, 26]. A prohibited name is a name that is considered obscene or offensive, isn't practical because it is too long or made up of symbols that don't represent vocal sounds, includes or resembles an official title or rank or is contrary to the public interest [BDMRA s.4].

Costs involved with naming

There are no costs involved with naming a child. It does, however, cost to change names: $30 for the name change application and $25 for an amended birth certificate.

Birth certificates

When a birth registration statement has been lodged, parents can apply for a certified copy of details of the registered information, commonly called a birth certificate. A birth certificate of a child can be obtained at any stage by a parent, an adoptive parent, a grandparent, or an authorised agent, provided that the correct forms are completed and necessary identification is provided. Once a child turns 18 years of age, their consent is required before their certificate can be provided to another person. For more information about birth certificates see Legal documents, chapter 1.

Changing the name of a child

For information about changing a child's name see Changing names, chapter 3.

4.2 Child welfare

At the time of publication, the NT Government has introduced new legislation for child welfare and protection issues. The Care and Protection of Children Act 2007 is expected to commence in late 2008.

The information in this section relates to the law current at publication; however, care should be taken to ascertain which Act is in force (this information can be obtained from the Department of Health and Community Services).

The Community Welfare Act 1983 (NT) (CWA) aims to provide for the protection and care of children and to promote family welfare. It sets up a system for the investigation of child abuse and the care of children who are 'in need of care'. The CWA gives the Minister for Family and Community Services a range of duties and responsibilities. In reality, these duties and responsibilities are carried out by the staff employed in the Family and Children's Services (FACS) Unit of Department of Health and Community Services (DHCS) (seeContact points). These employees have a duty to protect a child's welfare and to support those family relationships that are in the child's best interests [CWA s.9]. A child is defined in the CWA as a person under the age of 18 years.

The CWA also sets up the Family Matters Court, which has the role of making decisions about children in need of care.

Children in need of care

The primary aim of the CWA is to keep families functioning and to support families in caring for children. The CWA is specifically concerned with children 'in need of care'. A child is 'in need of care' when:

* the parents, guardians or custodians have abandoned the child and can't, after reasonable inquiry, be found [CWA s.4 (2)(a)]

* the parents, guardians or custodians are unwilling or unable to maintain the child [CWA s.4 (2)(b)]

* the parent, guardian or custodian has maltreated (see below) or neglected the child to the extent that the child has suffered or is likely to suffer physical or sexual injury or abuse or serious emotional, intellectual or physical impairment [CWA s.4(2)(c)]

* the child is not subject to effective supervision and control and is engaging in conduct that seriously endangers their health or safety [CWA s.4(2)(d)]

* the child is under the age of criminal responsibility, that is, under ten years old, and has persistently engaged in conduct harmful or potentially harmful to the general welfare of the community measured by commonly accepted community standards as to warrant appropriate action under the CWA for the maintenance of those standards [CWA s.4(2)(e)].

Child maltreatment

Maltreatment is the term used in the CWA to describe what is commonly known as child abuse and neglect. The legal definitions of maltreatment can be found in section 4(3) of the CWA; however, the following is a useful guide:

* Physical abuse: occurs when a child suffers or there is a substantial risk that the child may suffer a physical injury inflicted or allowed to be inflicted by the child's parent, guardian or person having the custody of the child. The injury may be inflicted intentionally or be the inadvertent consequence of physical punishment or physically aggressive treatment.

* Emotional or intellectual impairment abuse: occurs when a child's parent or caregiver repeatedly rejects the child or uses threats to frighten them. This may see the child subject to persistent name calling, belittling or continual emotional coldness, which significantly damages their physical, social, intellectual or emotional development. Such abuse may occur due to the child's physical surroundings, nutritional or other deprivation, or the emotional or social environment in which the child is living or where there is a risk that such surroundings may cause the emotional or intellectual impairment.

* Neglect: occurs when the child's parent or caregiver fails to provide the child with the basic necessities of life, such as food, clothing, shelter, medical attention or supervision, to the extent that the child's health and development is or is likely to be significantly harmed.

* Sexual abuse: occurs when a child has been sexually assaulted or exploited or where there is substantial risk of such abuse or exploitation occurring and the child's parents or caregivers are unable or unwilling to protect the child. Child sexual abuse involves a wide range of activities, including the fondling of a child's genitals, masturbation, oral sex, vaginal or anal penetration by a penis, finger or other object, exposing a child to pornography, and where the child has been subjected to female genital mutilation or there is a substantial risk that she will be subjected to genital mutilation (this includes plans to take the child out of the NT to have genital mutilation performed on her).

Options where a child is in need of care

The options available for children in need of care are:

* to give to the child's family guidance and assistance, such as providing material assistance, counselling, and parenting programs to ensure the child is adequately cared for [CWA s.10(a)]

* to enter into a temporary care arrangement with the child's parents or guardians to place the child into care and to provide for the child [ CWA s.10(b)] (seeTemporary custody agreements below[ CWA s.62])

* as the last resort, to apply to the Family Matters Court for formal orders concerning the future care of the child [CWA s.10(c)].

Family assistance

The primary aim of FACS is to keep families together so far as this is consistent with ensuring the safety of a child. Except in an emergency situation, such as when a child has been abandoned or there is a serious risk that a child will continue to be harmed if not removed from the family situation, the first response when finding a child in need of care is to provide the services of a FACS worker to work with the family to help them sort through the problem. Family counselling, advocating on behalf of the family with other agencies, material assistance and all the other resources and support services of the department, such as budget advice, counselling, parenting advice and parenting skills development, psychological services, medical assessments and respite care, are used in an effort to improve the family situation so that proper care can be given to the child.

An application to the Family Matters Court can only be made by a delegate of the Minister (FACS staff) on behalf of the Minister when they are satisfied that the welfare of the child can't adequately be provided for in any other way [CWA s.35(1)]. However, where the Minister has not made an application, a person may, after consultation with the Minister, seek leave of the court to make such an application [CWA s.35(2)]. Before bringing an application, all alternative options need to be carefully considered to ensure that the welfare of the child would not be adequately provided for by some other means [CWA s.36(1)].

Temporary custody agreements

A parent, guardian or custodian of a child can apply to the Minister for temporary custody of a child for up to two months. This period can be extended for further periods, but can't exceed six months in total [CWA s.62(3)]. Temporary care gives families breathing space, reducing immediate pressures and giving family members a chance to sort out particular difficulties. When the subject is a child aged 15 years or more, an agreement of this kind can't be made without the child's written consent [CWA s.62(5)].

The party giving the child into custody can request their return at any time and the Minister must comply within 48 hours of receiving such a request. Where the Minister wishes to retain the child in custody, an application must be made to the Family Matters Court [s.62(6)] (seeFamily Matters Courtbelow).

Maltreatment and removing a child

An authorised FACS staff member or a police officer can, without a warrant, remove a child from any place if they believe the child to be in immediate danger and need of care. The child can be removed using such force as is reasonably necessary and held in custody for 48 hours, in a place of safety, such as with friends, relatives, a foster family or children's home willing to temporarily care for them [CWA s.11]. This action can be avoided and the child can remain if the officer is satisfied that adequate steps will be taken to ensure the child will cease to be in need of care. In a case of suspected sexual abuse, a parent could, for example, keep the child at home by taking steps to ensure the person suspected of committing the abuse was allowed no further contact with the child and the child obtained appropriate support.

A person who takes a child into custody under section 11(1) of the CWA must notify the Minister in writing and apply to a magistrate or a judicial registrar for a holding order within 48 hours [CWA s.11(A)]. The magistrate or judicial registrar, who is satisfied there are reasonable grounds for holding the child in care, can extend the period the child is held in a safe place from 48 hours to 14 days.

A person who takes a child into custody under section 11(1) can consent to any urgent medical treatment the child needs [CWA s.12].

A person in charge of a hospital can detain a child in the hospital for up to 48 hours where they believe, on reasonable grounds, that the child has suffered or is suffering maltreatment [CWA s.15].

The purpose for detaining a child in hospital must be to ensure the child receives treatment or is medically examined. At the end of the 48-hour period, if the person in charge of the hospital still believes the child has suffered or is suffering maltreatment, they must apply to a magistrate or judicial registrar for a holding order [CWA s.11(A)].

Once holding orders are granted pursuant to section 11(A) of the CWA, the Minister is to be notified and the Minister (delegates thereof), assume responsibility for the child and must bring the case before the Family Matters Court before the holding order expires [CWA s.17(a)(b)(i)]. The child's parents, guardians or custodians must be told of any action taken or planned [CWA s.17(c)], as must the child if they are over ten years of age [CWA s.36(2)(a)(b)].

Mandatory reporting and investigation of maltreatment

Any person who has reasonable grounds to believe that a child has suffered or is suffering maltreatment is legally obliged to report the incident to FACS or to the police [CWA s.14]. Where such a report is made in good faith, no civil or criminal liability will be incurred. Reports made by professionals, such as teachers, counsellors, social workers, lawyers, ministers of religion and doctors, will not be held to be in breach of confidence or professional etiquette or ethics or a rule of professional conduct [CWA s.14(2)]. FACS staff takes all possible steps to make sure the identity of a person who makes a report is not revealed. Failing to make a report is an offence punishable by a fine.

When a report of alleged maltreatment is made to FACS, the report must be investigated as soon as practicable [CWA s.16(1)]. The FACS staff that carry out the investigation may authorise a medical examination of the child.

Where the report is made to the police, the police may investigate and report their findings to the FACS staff or they may refer the matter directly to FACS for investigation [CWA s.13].

Child protection team

A child protection team [CWA s.18] examines every report of maltreatment and recommends to the Minister action that should be taken [CWA s.21(b)].

Reports are supplied to the child protection team by the FACS workers who had investigated the report of maltreatment. Child protection teams have been established in major regional centres and consist of a representative of the Minister for Family and Community Services (usually the senior FACS worker for that area), a representative from the police, a medical practitioner, a representative of the Department of Education and any other representative nominated by the Minister. FACS' policy recommends that, as far as practicable, there be representatives on each child protection team from the Aboriginal community or relevant Aboriginal organisations.

If the report is substantiated, FACS workers establish a case plan for the child that sets out the options for the care and protection of the child, the services to be provided to the family and, if the child has been removed from the family, any plans for reunification. The child protection team also reviews the case on a regular basis until it believes the child is no longer at risk. Parents or other interested people have no right to know any of the details of the investigation by FACS or of the deliberations of the child protection team.

Any action taken under the CWA is to ensure the child is protected and is receiving appropriate care.

Confidentiality and disclosing information

Except in limited circumstances, it is an offence, punishable by fine or imprisonment, to publish any material that may identify a child who has been the subject of an investigation or application to the Family Matters Court, or to publish the proceedings or results of any Family Matters Court hearing [CWA ss.33, 97, 97A].

Family matters court

The Family Matters Court hears and determines all the applications made under the CWA [CWA ss.24, 25, 28]. The court is made up of a single magistrate and cases can be heard at all Magistrates Courts in the NT.

The aim of court proceedings is to formally decide whether a child is in need of care (seeOptions where a child is in need of carebelow). If the court decides a child is in need of care, it can make formal orders for the protection of the child and care arrangements.

An application to the court is usually made by the delegate of the Minister, a FACS staff member. In some limited circumstances, other people can make applications to the court, but they must consult with the Minister and seek the court's permission to do so [CWA s.35(2)].

Parents, guardians or custodians must attend the court hearing unless the court is satisfied their presence would be unreasonable. Failure to attend will see a warrant issued to bring the parties to court. The court can proceed with the hearing in their absence [CWA s.37].

Children the subject of an In Need of Care Application, must attend the court in person and remain in attendance during the hearing of an application unless the court makes an order that the child is not required to attend [CWA s.41(1)]. A child may be excused [CWA s.41(4)] on one of the following 'reasonable grounds': (a) the child does not understand the nature of the hearing (NB. This may be due to the child's infant age and maturity and/or the child's mental state or any other circumstance of the child); (b) the child is unlikely to be able to give evidence that will assist the court whether on account of his or her age, mental state or any other circumstance of the child; © the attendance of the child could be injurious or dangerous to the health or welfare of the child (NB. A letter or report from a medical practitioner may also evidence this). Although the Act is clear that a child must attend at court, the court does not always insist a child attend court; it depends on the views of the presiding magistrate.

The court can make an order providing legal representation for a child where this seems necessary and other arrangements have not been made [CWA s.39(3)].

A parent, guardian or custodian of a child may be asked to account for the cause of a child's injury. The maltreatment of another child in the care of the same person can be used as evidence [CWA s.39(1)].

Proceedings in the Family Matters Court aim to be comparatively informal and less drawn-out [CWA s.40], although, in practice, they tend to be much like those in any contested matter. The normal rules of evidence do not apply, so the court can listen to matters inadmissible in other courts. The court can, in fact, inform itself on any matter [CWA s.39(2)].

The Family Matters Court is a 'closed' court, which means that only those directly involved in the proceedings can attend [CWA s.32]. Court proceedings and any material that might identify a child can only be made public with the court's permission [CWA ss.33].

Adjournments

Often an application is adjourned from the first hearing date to give FACS time to complete a comprehensive assessment of the case and so the parties can seek legal representation or gather further advice and better prepare their case.

The court may make interim or temporary orders for the protection of the child during the period of adjournment. These include orders that the child can:

* live at home

* be placed in the custody of a specified person

* live in a specified place of safety

* be detained in a hospital.

In some instances the court has, after considering the wishes of the child, returned a child on a holding order to the custody of the parents for the duration of the adjournment.

Reports

To prove a child is in need of care, the Minister usually submits, as evidence, the written report prepared by the welfare officer involved, although such evidence can also be given verbally.

The court may require certain people, like doctors or teachers, to provide medical and school reports and to verbally report on the child in court. Reports made in good faith cannot constitute a breach of confidence, professional etiquette or ethics or a rule of professional conduct, and liability for defamation cannot be incurred. The report must be circulated to the Minister and to the parties and their legal representatives, but may be withheld from a child if it is likely to cause them distress [CWA ss.45, 46(2)].

What does the court consider?

When deciding what orders to make, the court must consider [CWA s.43(1)]:

* the need to safeguard the welfare and development of the child

* the child's reactions to the proceedings and their wishes, giving regard to the age and the comprehension level of the child

* the importance of promoting the relationship between the child and the child's parents, guardians, custodians and, where appropriate, extended family

* the desirability of maintaining the child's contact with their ethnic and social environment.

The court only declares a child to be in need of care when it is satisfied that alternative care would be of a significantly higher standard. The court takes account of the social and cultural norms of the community where the child's parents, guardians, custodians or extended family reside or with which they maintain social and cultural ties [CWA s.43].

Orders the court can make

Where the court makes an order declaring the child to be in need of care, it can also make the following orders:

* direct the parents, guardians or custodians to take necessary steps to secure the proper care and welfare of the child, and review the situation within 12 months [CWA s.43(5)(a)]

* direct that the child reside with a suitable person, such as a relative, neighbour or friend, for up to a period of 12 months [CWA s.43(5)(b)]

* direct that the child be placed under the joint guardianship of the Minister and the parents, guardians or custodians for up to 12 months. This type of order is used when a welfare worker plans to work with the family for the duration of the order to help them sort through problems [CWA s.43(5)(c)]

* direct that the sole guardianship of the child, which includes the power to grant access, be transferred to the Minister or their delegate for a period of time up until the child's 18th birthday [CWA s.43(5)(d)]. On occasions, the court has granted sole guardianship to the foster family caring for the child, rather than to the Minister. Sole guardianship orders are a very serious matter as parents lose their legal right to custody and guardianship of the child and are no longer responsible for their children's care and welfare. Such an order will only be made if the court is satisfied the welfare of the child demands it or where the child has been abandoned.

The courts can also direct that the Minister is to take certain actions. For example, the court could direct the Minister to provide a particular sort of support for the child or family or that the child attend counselling or special education.

Where sole rights of guardianship are transferred to the Minister, a court must review the child's circumstances at least every two years [CWA s.49(1)(a)].

Varying orders

The Minister or any person with an interest in the child's welfare, including the child's parents, guardians or custodians, can, on behalf of or at the request of the child, apply to the court to have an order varied or revoked. The application must state how the circumstances which gave rise to the original order have significantly changed [CWA s.48].

Appeals

The Minister, the parents, guardians or custodians or any person with an interest in the welfare of the child, or acting on their behalf or request, can appeal to the Supreme Court to have an order for care made by the Family Matters Court varied or reviewed [CWA ss.43(4), 48, 49].

Children under the minister's guardianship

Custody is defined by the CWA as taking responsibility for the daily care and control of a child, including making decisions about such things as accommodation, school attendance, clothing, feeding, transportation, behaviour and urgent or routine health care. Guardianship includes custody and involves being responsible for the long-term welfare of a child, including making decisions about the education, residence, religion, employment and long-term health of the child [CWA s.4(1)].

The Minister, subject to any limitations imposed by the court, has the same rights, powers, duties, obligations and liabilities as a parent would have [CWA s.52(2)], including:

* the right to custody of the child

* the obligation to provide the necessities of life for the child, including accommodation, maintenance, education and recreation

* the right to discipline the child

* the obligation to provide medical and dental health care for the child.

A child under the guardianship of the Minister [CWA s.52(3)] may be:

* permitted to remain in the custody of a parent or guardian

* placed under foster care

* placed in a licensed children's home

* provided with such accommodation or assistance as the Minister thinks fit.

Children under the guardianship of the Minister must be visited at least once every two months by an authorised welfare officer, who must submit a written report on the child's welfare to the Minister [CWA s.53]. At least once every three months, the Minister must review the child's circumstances to ensure arrangements made for their care and welfare are suitable and desirable [CWA s.56]. The child's or parents' wishes in this regard may also be considered.

Where the Minister is either the joint guardian or the sole guardian of the child, the parents and the Minister can make an agreement that the parents will make a financial contribution to the child's support [CWA s.59].

The court can make an order, on the application of the Minister, empowering the Public Trustee to manage, control or deal with the property of a child under the guardianship of the Minister [CWA s.61].

A person who removes a child from their lawful custodian, without lawful excuse, commits an offence [CWA s.96(1)].

Case study

A boy aged seven years was physically abused by his mother's partner who was living with them. He was abused to the extent that his teacher noticed bruising on him. His teacher also observed that he did not appear to be as happy as he used to be and that he was no longer doing well at school.

The school made a report to Family and Children's Services (FACS), the unit within DHCS that specialises in handling reports of maltreatment. FACS workers then carried out an investigation which included talking to the teachers, the child, the mother and her partner. The police also became involved and interviewed the mother's partner. When the investigation was complete, an assessment was made, by FACS, that the child had been maltreated. After negotiations with the mother, it was decided that the child would live with his grandmother for a few months and would not have any contact with the mother's partner. The police also took action against the perpetrator and laid criminal charges of assault against him.

After the child was removed, under a temporary care agreement, workers from FACS continued to talk with the mother about future care arrangements for the child. When FACS' workers concluded that the mother would not acknowledge the abuse had occurred and take the appropriate steps to ensure the abuse would not continue if the child returned to live with her, they made an application to the Family Matters Court for an order that the child be found In Need of Care.

Transfer of guardianship

State and Territory governments have reciprocal arrangements to transfer responsibility for guardianship if a child under the guardianship of the Minister moves interstate [CWA Part VIIA - Interstate Transfer of Child Protection Orders and Child Protection Proceedings].

Aboriginal child welfare

The CWA contains special provisions with regards to the welfare and care arrangements that can be made for Aboriginal children.

The Minister must provide support and assistance to Aboriginal communities and organisations and promote training and employment of Aboriginal welfare workers [CWA s.68].

Where an Aboriginal child is in need of care, the Minister will ensure that [CWA s.69]:

* every effort is made to arrange appropriate custody within the child's extended family

* where such custody can't be satisfactorily arranged, every effort will be made to arrange for custody by Aboriginal people who have the correct relationship with the child in accordance with Aboriginal customary law

* where custody still can't be arranged without endangering the welfare of the child, after consultation with the child's parents, the other person responsible for their welfare in accordance with Aboriginal customary law and with appropriate Aboriginal welfare organisations, a placement consistent with the best interests and the welfare of the child will be arranged taking into consideration:

* preference for custody of the child by Aborigines suitable in the opinion of the Minister

* placement in geographical proximity to the family or other relatives of the child who have an interest in and responsibility for the welfare of the child

* undertakings by the child's custodians to facilitate and maintain contact between the child and their kin and culture.

In Aboriginal communities, extended families or people who have the correct relationship with the child in accordance with Aboriginal customary law usually arrange for the child's care without the need for government intervention.

Child abuse and the criminal law

A FACS investigation into alleged maltreatment and any subsequent applications to the Family Matters Court are made in the interests of a child's welfare and are not related to any criminal proceedings. Where the treatment of a child amounts to a criminal offence quite distinct action needs to be taken by police.

Members of the police force must notify the Minister as soon as practicable of any instances where they believe a child has suffered or is suffering maltreatment [CWA s.13(1)(a)] and must report to the Minister within 24 hours of completing an investigation [CWA s.13(2)]. Police may then decide whether charges should be laid.

A formal agreement exists between FACS and the police about the investigation of all cases of alleged sexual abuse or serious physical abuse. Where possible, these cases are investigated jointly to minimise the trauma to the child. The primary consideration of FACS, in these instances, is the safety and protection of the child; the role of the police is to investigate and gather evidence of possible criminal offences.

4.3 Childcare

Childcare centres

New legislation is being developed for the care and protection of children, which will include arrangements for the regulation of children's services. Further information will be posted to www.health.nt.gov.au, or you can ring 1800 005 485. In the meantime, childcare centres are regulated by the CWA and Community Welfare (Child care) Regulations. Under the CWA some childcare centres must be licensed. A childcare centre must have a licence if all the following apply:

* it is operated as a commercial enterprise or as a community service or incidental to a commercial enterprise or community service

* it cares for more than five children under six years of age

* the children are not enrolled for primary education at a school

* at least some of the children are being cared for away from their parents or guardians.

Licensed childcare centres have a number of duties and responsibilities, including the following:

* A childcare centre must ensure that a child brought to the centre is not returned to any person other than the parent or other authorised person, except where either of them has given written permission for another person to collect the child.

* A childcare centre must supervise children properly and effectively.

* A childcare centre must allow and encourage a parent or other authorised person (or a person nominated in writing by either of them) to visit the child at any time.

* The person in charge of the childcare centre must not allow a child or adult whom they reasonably suspect to be suffering from a disease to enter the childcare centre if it is likely that a child in the centre may catch the disease. The common cold is not a disease. Each centre must have their own policy regarding infectious diseases, outlining the exclusion practices for children and staff who have an infectious disease or have been exposed to one. The licensee is required to ensure the policy is practiced.

* The licensee must insure itself and people responsible for children at the centre against personal liability.

* Where a childcare centre has been licensed as a centre that does not have an outdoor play space, a child can't stay for longer than four hours within any eight-hour period. These centres should display a notice informing parents of this provision.

No licensee of a childcare centre is permitted to cause medicines or drugs of any description to be administered to a child who is cared for at the centre, although a parent may authorise the licensee to administer drugs to the child at the centre.

Unlicensed childcare facilities

There are many different childcare arrangements that aren't required to be licensed under the CWA. Examples are family day care and outside school hours care services. There are no special laws governing the operation of less formal childcare facilities.

However, those who have taken over the care of someone's child will have a general duty of care to ensure the safety of that child. If that duty is breached and the child suffers some injury as a consequence, the parents of the child may have an action in negligence against the carer (see Accidents on public and private property, chapter 11). Carers are also obliged, under the CWA, to ensure that the children being cared for are not being neglected or maltreated.

Under the CWA, a person from the Department of Health and Community Services authorised by the Minister for Health and Community Services, who believes on reasonable grounds that an unlicensed childcare facility is being conducted as a childcare centre, can enter those premises to ascertain the state of the welfare of any children there.

4.4 Children's rights and responsibilities

The age of 18 years represents a clear legal boundary between adulthood and childhood. On reaching the age of 18 years a person assumes all the legal rights, responsibilities and duties of an adult, such as the duty to vote, the ability to sue, and the freedom to buy and drink alcohol. However, people acquire some legal autonomy before they turn 18 years. For example, children who are 16 years old don't have to attend school and can obtain a driver's licence. Also, the way the law, legal rights and responsibilities are applied to children may vary according to the age of the child. For example, the older a child is, the more weight a court is likely to accord to their views in certain situations (for example, in considering who a child should live with).

Children and the family

A child's rights within the family

All children, regardless of whether their parents were married when they were born, have rights provided by the Family Law Act 1975 (Cth) (FLA). This Commonwealth law applies throughout Australia (except for Western Australia which has its own legislation), and provides children with a right to adequate and proper parenting, and a range of other related rights set out in section 60B(2) of the FLA:

(a) children have the right to know and be cared for by both their parents

(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

© parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children; and

(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Parental responsibility

Parental responsibility includes all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children, such as responsibility for their child's housing, education, religion and discipline as well as responsibility for consenting to the child's medical treatment, agreeing to the child's adoption and protecting the child.

Under the FLA, there is a presumption that it will be generally in a child's best interest for its parents to have 'equal shared responsibility', although parents themselves can terminate or change their legal responsibilities through a parenting plan or court order. The Family Court can make an order changing or terminating the parental responsibility of a parent when it believes it to be in the best interests of the child (seeParenting after separation,chapter 3).

The assumption of equal shared responsibility applies regardless of whether a child's parents are married, in a de facto relationship, divorced or separated. Parental responsibility is not affected by the parents marrying or remarrying, and ends when a child reaches the age of 18 years, marries or is adopted.

When will the law intervene?

Under the FLA, the presumption of 'equal shared responsibility' law can be rebutted if there are reasonable grounds to believe that a parent of the child has engaged in family violence or abuse of a child of the family. After parents separate, if the presumption is not rebutted and a court considers that equal shared parental responsibility is appropriate, a court must consider whether it is practicable and in the children's best interests to spend equal amounts of time with both parents If a court finds that equal shared responsibility is not appropriate, it must consider if it should make an order that a child's spend 'substantial and significant time' with each parent, subject again to the 'best interests' and 'reasonably practical' tests. What will constituted 'substantial and significant time' will vary, but it will usually mean more than weekly or fortnightly holiday visits.

In addition to the FLA, all states and territories have child welfare legislation which has the capacity to change the nature of a parent's responsibility for a child. In the Northern Territory, under the Community Welfare Act (CWA), a child can be found to be in need of care when:

* they have been abandoned by their parents or guardians who cannot be found after a reasonable inquiry has been made

* they have suffered maltreatment (which includes various forms of abuse or neglect)

* they are not subject to effective control and are engaging in conduct that constitutes a serious danger to their health and safety

* parents, guardians or others responsible for the care of the child are unwilling or unable to maintain the child

* the child is too young to be responsible under criminal law, but has persistently engaged in conduct that is so harmful or potentially harmful to the general welfare of the community (measured by commonly accepted community standards) as to warrant appropriate action under the CWA.

The law will also intervene if a parent does not send the child to school (seeEducation below).

Under the CWA a person who reasonably suspects a child has been subjected to maltreatment has a duty to notify the nearest Family and Children's Services (FACS) office (see Contact points). FACS can be contacted for free on 1800 700 250. The Department of Health and Community Services is responsible for Family and Children's Services programs (seeChild welfare, this chapter).

The Family Court or the Family Matters Court can, in certain circumstances, appoint as guardian a person other than a parent (seeChild welfare, this chapter).

What role can a child have in Family Court proceedings?

In Family Court proceedings involving children, such as the resolution of parenting issues, the best interests of the child is the most important consideration for the court. To determine the best interests of a child, a court is required to consider a range of factors including (but not confined to):

* the benefit of the child having a meaningful relationship with both parents

* the need to protect the child from physical or psychological harm from exposure to abuse, neglect or family violence

* any views expressed by the child

* the nature of the relationship of the child with each of the child's parents and other relevant persons (including any grandparent or other relative of the child)

* the likely effect of any change in the child's circumstances including the likely effect of any separation from siblings

* practical issues relating to a child spending time with and communicating with a parent

* the capacity of the child's parents to provide for the needs of the child, cultural issues

* the extent to which each of the parents has fulfilled their responsibilities as a parent.

A court can appoint an independent children's lawyer to ensure that the best interests of the child are independently represented during court proceedings. A child can apply to have the court appoint independent children's lawyer, as can any organisation concerned with the child's welfare or any other person. A child may also institute or continue Family Court proceedings.

There are many reasons why a court may appoint an independent children's lawyer. These include where there are allegations of child abuse, separation of siblings is proposed, the child is in conflict with one or both of the parents and/or there are cultural or religious issues that need to be considered.

When can a child leave home?

A child under 18 years of age who can properly support themselves, has adequate housing, is not in moral danger and is not committing or does not seem likely to commit a crime, can leave home. However, a child under 15 years is unlikely to satisfy these conditions because a child of compulsory school age cannot lawfully be offered employment that will interfere with their schooling.

Although a child has no absolute right to leave home before the age of 18 years, a child over 16 years of age is not normally forced to return home against their wishes. Each case depends on its facts: on the attitudes of the parents, the maturity of the child, whether the child has accommodation, employment and a lifestyle the authorities consider to be reasonable. The law may intervene if the young person is considered to be in need of care (seeChild welfare,this chapter).

Under the CWA, the court can order that you live at home, or with a particular person, if you are under 18 years of age.

Corporal punishment

It is an offence to apply physical force or threaten to apply physical force to another person without their consent. This is known as assault [Criminal Code Act (CCA) s.187]. It is also possible for the victim of assault to bring a civil action against a perpetrator.

Corporal punishment of children is a form of assault and is therefore unlawful. However, in the case of a parent or guardian of a child, or a person standing in the position of a parent or guardian, it is lawful to use force against a child in their care [CCA s.27(p)], so long as the force:

* was not unnecessary

* was not intended or was not likely to cause death, or grievous harm (physical or mental injury to endanger or likely to endanger life or to cause or be likely to cause permanent injury to health)

* was for the purposes of discipline, management, or the control of the child.

A person who stands in the position of a parent or guardian (in locus parentis) can include school teachers, foster parents and childminding adults, such as babysitters.

Corporal punishment must not be so severe that it could cause really serious harm or death, and the amount of force used must be reasonably necessary in the circumstances. A court will determine what is reasonably necessary, or 'modest and reasonable', by considering prevailing community standards and all the circumstances of a case, including:

* the relationship between the adult and child

* the age of the child - the child must be old enough to appreciate correction and the punishment must be reasonable for a child of that age; for example, a parent is not lawfully entitled to administer to a child aged 19 months any physical punishment except that of the very lightest description, such as a slight slap

* the instrument of correction - canes have been held lawful whereas loaded guns have not

* where the blow is administered - normally blows to the face or other vulnerable parts of the body are unlawful

* the force and number of blows

* the seriousness of the child's offence

* the age, size, health and sex of the child

* the consequences of the blows - injuries requiring medical attention normally suggest illegal behaviour.

Courts have held that where punishment is inflicted by a parent, the standard to be applied in determining what is 'moderate and reasonable' is that of the community generally and not that of any ethnic or other group. For information about punishment and teachers seeEducationbelow.

Relationships

Marriage

The marriageable age in Australia is 18 years for both males and females. However, people who are at least 16 years old can apply to a magistrate or judge for permission to marry. The court will only grant permission in exceptional and unusual cases (seeCouples who are married, chapter 3).

Same sex couples are unable to lawfully marry in Australia (see De facto and sexual relationships below).

De facto and sexual relationships

Since changes to the law made by the NT Government in 2003, discrimination against same sex couples is no longer sanctioned by NT law. Heterosexual and homosexual de facto relationships have legal status in the NT under the De Facto Relationships Act 1991 (NT) and a range of other legislation (see Unmarried families, chapter 3).

Anyone who is 16 years of aged can legally consent to sex regardless of whether they are male or female, and regardless of whether the sexual activity is heterosexual or homosexual. For more information on the age of consent see Sexual offences , chapter 20.

Children who are parents

The general responsibilities of parents under the FLA (see Parental responsibility, this section) apply to parents who are children, but only to the extent that those responsibilities can in fact be lawfully exercised by someone who is not yet an adult. Parents who are children do not possess full adult legal status; they remain subject to the parental responsibility of their own parents or guardians, and the general legal restrictions imposed on all children.

Education

Compulsory education

Under the Education Act (EA), schooling is compulsory for all children between the ages of six and 14 years [s.21]. Once children reach the age of 15, they are no longer legally compelled to attend school. Schooling can be at a government or registered non-government school, at home, at a school of the air, a correspondence school, or some other arrangement if the child has special educational needs.

Attendance at school

Each child of compulsory school age is required to be enrolled at a government or non-government school, unless the Minister for Employment Education and Training has granted a certificate of exemption from school attendance, or other arrangements to educate the child have been approved by the Education Department Secretary. Children who are enrolled must attend school as required, unless they are enrolled at a school of the air or in a correspondence class. Non-government schools must be formally registered with the Department of Education [EA s.62]. To be registered, the CEO of the department must be satisfied that the non-government school will be able to operate satisfactorily to an appropriate standard [EA s.64].

A parent can be fined up to $200 if they fail to send their child to school [EA s.22]. However, if the child's failure to attend school was not due to any failure by the parent to exercise proper care and control of the child, they may have a defence to any action taken against them. A child's absence is acceptable if a parent provides an acceptable reason for it, either by speaking or writing to the head teacher. An acceptable reason for absence would be that the child was too ill to attend. Important religious or cultural practices may also be acceptable reasons for a child's absence.

Education at home

A parent is allowed to educate their child at home if the CEO of the Education Department deems the education provided to be sufficient and suitable [EA s.21]. The consent of the CEO must be in writing. The parent can seek this consent by writing to the CEO of the Department of Education (see Contact points). Before making a decision, the CEO can order that a written report be prepared concerning the suitability of the proposed education.

Children with special learning needs

Special arrangements can be made for the teaching of children with special learning needs. These arrangements must be agreed between the parent who has actual custody of the child and the Minister for Employment, Education and Training [EA s.37]. If no agreement can be reached, the Minister may refer the matter to the Supreme Court for determination [EA s.38].

Children with special learning needs are defined under the EA as: 'handicapped children; and children whose educational progress will, by reason of some special factor, other than a physical or mental handicap, in relation to the children, suffer unless the children have access to special educational arrangements' [s.35(3)].

Withdrawal from specific subjects

A parent may request that a child be withdrawn from a particular course of study [EA s.23]. The head teacher must comply with the request if it is a course of religious instruction or the parent has a conscientious objection to the course. The head teacher may comply with requests that fall outside of these two categories. The concept of 'conscientious objection' is not defined in the EA; however, the concept normally encompasses strong personal, moral, religious, cultural or medical beliefs. It may be helpful to look at the Child Care Payments Act 1997 (Cth) where conscientious belief has been defined in section 8.

Safety at school

A general duty of care is owed to a student by the educational authority responsible for the school and by a student's teachers when the teacher-student relationship exists, including when a student stays late, attends excursions or participates in work experience. An educational authority is responsible for a teacher's actions, except when that teacher is acting in a way completely outside their duties.

Schools are required to take such measures as are reasonable to prevent physical injury to their pupils. The likelihood of danger arising should be assessed and precautions taken.

A case may be made out against a teacher and, through them, the school authority when an accident occurs if the student can prove:

* the teacher owed a duty of care to them

* that the teacher had committed a breach of their duty of care by not acting in accordance with the standards of a reasonable person in the circumstances

* the accident was caused by the teacher's breach of duty

* that, as a result of the accident, they suffered injury.

Supervision

Supervision must be adequate at all times when a child is under the school's control, not only during classroom activities, but at other times, such as during recess, lunchtime and school sports. A school's responsibility is sometimes considerable, especially during scientific experiments or when pupils are taken swimming or on excursions. Generally, a school would not be liable for an accident as long as there is adequate supervision, the dangers are understood, and anticipated and reasonable precautions are taken.

It is obviously impossible for teachers to personally supervise each child in a playground or classroom. When considering issues of liability in this context, a court would look at the number of children in the area, the number of teachers assigned to oversee the activities of those children and their diligence in patrolling the area. Courts are increasingly expecting public authorities to have risk management strategies in place, and may consider such strategies when issues of liability are raised.

School rules and discipline

Within the framework of Department of Education policies, government schools develop their own school policies, regulations and procedures, to deal with student behaviour and the general running of the school. Non-government schools also develop general school rules.

All school rules must comply with the law. For instance a school rule could not contravene anti-discrimination laws or workplace health and safety laws.

School councils also have a delegated authority under the EA [s.71N] to make by-laws and school rules regulating such matters as:

* protection of school property

* access to the school and school property

* the conduct of people on school property.

There are financial penalties for failing to comply with school by-laws and rules [EA s.71Q(1)].

A student-teacher relationship is based on the fact that, while the child is at school, the teacher is in loco parentis; that is, the teacher takes over the role of the parents and can use the parents' authority to carry out their duties in relation to the child.

The governing body in a non-government school sets the rules for discipline and the type and manner of punishment incurred for breaking them. However, school rules cannot override the law. A teacher who inflicts corporal (physical) punishment on a child may be committing a criminal assault (see Corporal punishment, this section).

Removal, bars, suspension and expulsion

At non-government schools, the rules governing when a child can be removed, suspended or expelled are usually determined by the governing body of the particular school. At government schools the EA sets out the basis for removing, suspending or expelling a student, or preventing them from enrolling at a specific school, as follows:

* Removal due to illness: the headmaster or principal of a government school can remove a child for a period of time by sending the student's parents or guardians a written notice stating that the child is not to attend school because the student is suffering from an infectious or contagious disease [s.25]. If a doctor certifies that a child is fit to return to school, the headmaster must re-admit the child.

* Bars: the CEO of the Department of Education can direct that a child not be enrolled in a specific school [s.26]. This is not a power of removal, but a power to bar a child from attending a specific school. The EA does not set any specific guidelines on when a CEO can bar a child, but general administrative law principles apply, which means that the CEO must act reasonably and can't take into account irrelevant considerations. For example, where a court order is in place restraining child A from approaching child B who is a student at a particular school, the CEO would have the authority to bar child A from enrolling in that school. Child A would then be required to attend another school.

* Suspension: the headmaster of a government school can suspend a child from attending the school [s.27]. To do so, the headmaster must believe that the child's behaviour poses a risk to the health or moral welfare of other students. The headmaster must supply a report of the circumstances of the suspension to the Minister, the CEO of the Department of Education, and the child's parent. A headmaster can suspend a child for a maximum of one month [s.27(4)].

* Expulsion: only the Minister for Employment, Education and Training can expel a child from a government school [s.29]. The Minister can expel a child when they believe it is in the interests of the other children attending the school. They can, at any time, review their decision. The Minister must inform the parent or person with actual custody of the child, in writing, of their decision to expel a child or to allow them to return to school. While a child is expelled they can't enrol at any other government school without the permission of the Minister. The only exceptions are the NT Correspondence School or a school of the air [s.29A].

The rules of administrative law apply to decisions of the Minister, which means that they must act reasonably, in good faith, and take into account relevant considerations. A person who wishes to challenge their expulsion from a government school can seek a judicial review (see Complaints against government, chapter 15).

Truancy

Under the EA an 'authorised person' has certain powers with respect to children who might be truanting. An 'authorised person' includes police officers and people authorised by the CEO of the Department of Education and issued with an identification card.

If an authorised person reasonably believes that a child of compulsory school age is truanting from school, they can ask for the child's name, age and address. If the authorised person believes that the child is playing truant, they can return the child to school, into the custody of the school principal [EA s.31(3)]. The authorised person can also go to the child's home between 8am and 7pm in order to obtain the names of all children of compulsory school age, and the names of the schools at which they are enrolled [EA s.31(4)]. The purpose of this power is to enable the authorised person to determine whether any other child in the household could also be truanting. It is an offence, punishable by a fine of up to $200, to unreasonably fail to comply with the lawful requests of an authorised person who is visiting a house for the purposes of obtaining the names of all children of compulsory school age, and the names of the schools at which they are enrolled [EA s.31(5)].

School fees

Government schools do not charge tuition fees. However, most schools ask parents or guardians to pay an annual school levy. The school council or parent body determines the levy. Levies are used to fund some existing programs and provide additional resources for students. There is no power in the EA to force parents to pay for any fees or levies at government schools. School excursions, camps and extracurricular activities are generally paid for by parents or guardians.

Students who require financial assistance to meet their educational expenses may be eligible to apply for assistance from the NT or Federal Government. The NT Government has established several programs that are designed to help students disadvantaged by distance or isolation with their educational expenses. To qualify under some NT Government schemes, students must first be approved for assistance under the Federal Government's Assistance for Isolated Children Scheme. For information about government assistance contact the Federal Department of Education, Science and Training or search its website at www.dest.gov.au./schools/guidelines/aic. Application forms and information booklets on eligibility, benefits and conditions of the schemes and allowances can be obtained from the NT Department of Education (see Contact points).

Health issues

Medical treatment

Special rules govern the ability of a child and their parents to give and withhold consent to medical treatment. For information about this particular area of the lawsee Health consumer rights , chapter 10.

Abortion

Under the Medical Services Act, a female aged 16 years of age or more may consent to an abortion. A female under the age of 16 years must first have the consent of their lawful guardian or custodian [MSA s.11)].

Contraception

A young person is capable of giving informed consent to legal medical procedures when they achieve a sufficient understanding and intelligence to enable them to understand what is proposed [Secretary Dept. of Health and Community Services v B [1992] HCA 15; (1992) 175 CLR 218]. It is generally accepted that a child of 14 years can consent to medical procedures, but cannot have a pregnancy terminated [CCA s.174(4)(b)] or undergo procedures that require the consent of the Family Court, such as sterilisation.

There is no special age at which a child becomes legally entitled to be prescribed the contraceptive pill. Relevant however is the common law principle governing when a child can consent to medical procedures, discussed briefly in the above paragraph. A doctor who has prescribed the contraceptive pill to a child over the age of 14 years is not obliged to tell the child's parents. The situation is less clear where a child is under 14 years; if a child under the age of 14 years asks a doctor for contraception, it may amount to a signal that the child is being neglected or abused and would therefore oblige the doctor to report the matter as required to under the CWA (see Child welfare, this chapter).

Advice on contraception can be obtained from a family doctor or the Family Planning Association (seeContact points).

Children in society

Employment

It is an offence, without express written permission from the Minister for Health and Community Services to employ a child under 15 years of age between the hours of 10pm and 6am [CWA s.92]. Without the written consent of the Minister, it is an offence to employ a child in a job that may be dangerous to their health or safety [CWA s.93].

It also unlawful to employ a child under 15 years of age during school hours or at any time of the day or night in work that would make the child unfit to attend school or obtain proper benefit from attending (for example, working nightshifts, or performing heavy manual labour thereby causing the child to be extremely tired) except where the child has an exemption from the Minister for Employment, Education and Training [EA s.30].

Certain industrial awards and Acts regulating employment also restrict the type of work that a person under 18 years of age can do. In each case, the particular award should be checked with the Department of Employment and Workplace Relations (or visit its website at www.dewr.gov.au) or, where a young person is a trainee or apprentice, the NT Department of Employment, Education and Training (seeContact points).

Driving

The law controlling the issuing of drivers licences is contained in the Motor Vehicles Act [MVA]. A person can apply for a learner's permit for a car from the age of 16 years. A person has to be at least 16 years and three months old to apply for a learner's permit for a motorcycle [MVA s.9]. Learners' permits for cars are granted for 12 months; three months for motorcycles [Motor Vehicles Regulations reg.5]. Learner drivers of cars have to display 'L' plates on the car in a way that makes them visible from both the front and back, and be accompanied by a licensed driver at all times [Traffic Regulations reg.12]. A person learning to ride a motorcycle doesn't have to be accompanied, but is required to have an 'L' plate attached to rear of the motorcycle [Traffic Regulations reg.12]. A learner driver (including a motorcycle rider) is not allowed to drive faster than 80km per hour (unless when permitted to do so by, and under the direct supervision of, a person conducting an approved driving course), even when road signs indicate that motorists can go faster.

A person aged between 16 and 16.5 years has to pass an approved driver training course before they can sit for their provisional licence ('P-plates') [MVA s.10(1)]. When a person turns 16.5 years of age they can sit for the provisional licence test without having to have passed a driver training course, but they do need to satisfy the Registrar of Motor Vehicles that they understand the traffic laws and are capable of driving a vehicle [MVA s.10(1)]. A provisional licence is usually issued for 12 months [MVA s.103(1A)].

Provisional licence holders are not allowed to drive at a speed greater than 100km per hour, and must display 'P' plates on the motor vehicle [Traffic Regulations reg.14].

A person under the age of 18 years, a 'P-plater' and an 'L-plater', are not allowed to drive with any alcohol in their blood [Traffic Act s.19(4)] (see Traffic offences, chapter 20).

A person aged at least 17 years and six months can obtain a licence to drive a heavy vehicle, so long as they have held a licence to drive a car for at least 12 months [MVA s.10(2A)].

A child can't obtain a licence to drive a taxi [MVA s.10(3)].

Firearms

A person under 18 years of age can't be granted a dealer's licence or an armourer's licence [Firearms Act ss.23, 34]. Also, they can't be granted a collector's licence, except in special circumstances [Firearms Act s.43]. It is an offence to carry, own, possess, purchase, discharge, and so forth, an unregistered firearm [Firearms Act s.11]. However, the Commissioner of Police has a discretionary power to grant a shooter's licence to a person under 18 years of age, but rarely exercises it. A 16 year old may be granted a shooter's licence for an airgun, air rifle, rim fire rifle or shotgun, unless it is self-loading or semi-automatic [Firearms Act ss.5(1), 52].

Voting

Although a person may register to vote in a Federal, NT or local government election at the age of 17 years, it is not possible for them to vote until they have turned 18. Voting is compulsory for a person aged 18 years and over [Electoral Act s.27(1); Local Government Act ss.47,48].

A person voting for the first time must apply to the Electoral Office to be listed on the electoral roll.

Passports

Before a passport is issued to a child, the written consent of all persons with parental responsibility for the child must usually be provided. The most common exception to this general rule is where a relevant court order has been obtained.

If the consent of anyone with parental responsibility for the child cannot be obtained after all avenues have been exhausted, and there is no court order permitting the child to travel internationally, a written request for 'special circumstances' under section 11(2) of the Australian Passports Act 2005 (Cth) may be made. An Approved Senior Officer, an officer delegated by the Minister for Foreign Affairs, will consider the statement to determine if a passport may be issued without the other person's consent.

The Australian Government is constantly reviewing how it manages passports. Updated information is posted at www.passports.gov.au/Web/index.aspx.

Tattoos and body piercing

There is no specific law in the NT dealing with tattoos or body piercing. However, the act of tattooing and piercing is potentially an assault and it is therefore a criminal offence to tattoo or pierce someone without their consent. It is also a criminal offence to tattoo or pierce someone who is under 16 years of age, unless the consent of a parent or guardian is obtained.

An industry tattoo and body piercing standard exists. It states that all clients under 18 require parental consent, but even with parental consent the minimum ages for these activities are:

* tattooing: 18

* body piercing: ears 13; navel piercing 15; breast and genital piercing 18.

Under the CWA, the Minister for Family and Community Services may take action to protect the welfare of a child (a person under the age of 18 years) if they believe that the child has suffered maltreatment (see Child welfare, this chapter). The definition of 'maltreatment' under the CWA includes circumstances where a child has 'suffered a physical injury causing temporary or permanent disfigurement or serious pain' [s.4(2)]. In some circumstances, tattoos could fit this definition. However, if the child is over the age of 16 years and has the consent of their parent or guardian, it is unlikely that the police or the Minister would consider the tattooing to be maltreatment.

Cigarettes

It is not a crime for a child to smoke cigarettes. However, it is an offence for someone to sell (including via a vending machine) or supply cigarettes or any other tobacco products to a child under 18 [Tobacco Act ss.8, 9].

Alcohol

Although it is not illegal for a person under 18 years of age to drink alcohol in a private house, if they are sold or given alcohol on licensed premises, both the child and the licensee and any other person who supplies the child may be committing an offence. The penalties for these offences are:

* for a first offence, a fine up to $1000 or imprisonment for six months

* for second or subsequent offences, a fine of $2000 or up to 12 months in prison.

A licensee faces the additional prospect of having their licence suspended.

A person under 18 years of age can't drink alcohol or have it supplied to them in a public place or unoccupied land, unless accompanied by a parent, guardian or adult spouse [Summary Offences Act s.45K]. Young people can have alcohol served to them in a pub or restaurant but only as part of a meal and they have to be with their parent, guardian or adult spouse [Liquor Act (LA) s.106C]. A person under the age of 18 years can be apprehended by police if found intoxicated in a public place.

Gambling

It is an offence for:

* a bookmaker to accept a bet from a person under the age of 18 years [Racing and Betting Act s.132(1)]

* a person managing or carrying on a business or acting in any capacity in any way connected with a totalisator (such as a betting agency or bookmaker) to knowingly sell to a person under the age of 18 years of age anything entitling that person to an interest in a dividend [Racing and Betting Act s.132(2); Totalisator Licensing and Regulation Act s.92(1)]

* a person under 18 years of age or anyone acting on their behalf to make or offer to make a bet [Racing and Betting Act s.132(2)(3) and (4); Totalisator Licensing and Regulation Act s.93]

* for a licensee of a casino to allow a person under 18 years to play a game or operate a gaming machine in a casino, or enter or remain in a casino or area within a casino designated as a gaming area [Gaming Control Act s.34(2)]

* for a person under 18 years to play a game or operate a gaming machine in a casino or to remain in a casino or area designated as a gaming area after being warned to leave by the licensee [Gaming Control Act s.34(3)]

* a person to knowingly sell tickets to a person under 18 years of age where it is a foreign lottery and a condition has been imposed by the Minister for Gaming that tickets sold in the NT are not to be sold to anyone under 18 years of age [Gaming Control Act s.40(6)].

Casinos and hotels that have gaming machines are obliged to ensure that those operating machines are over 18 years old [Gaming Control Act s.34(2)]. However, it is not an absolute liability offence, which means that the licensee has a defence if they had reasonable grounds to believe that the person was over 18 years of age.

Civil actions

A child can sue and be sued, but special rules apply as follows:

* The child must have a next friend, who is an adult who acts on the child's behalf.

* The fact that a child is bringing the action must be stated on the court documents in the title of the action.

* Documents can be served on the child directly or on their parents or legal guardian.

* Where a child is being sued, the Appearance to Defence documents must name an adult, usually a parent, who is called a guardianad litem.

* Where a child is either the plaintiff or the defendant in a civil action and the matter is settled out of court, the settlement must be approved by the court. For example, where an action is brought by a child to recover damages for injuries received in a car accident, but the amount of damages is agreed before the hearing, the settlement must be approved by the court, which must be satisfied that it is for the child's benefit. This applies regardless of whether a summons or writ has been issued.

* Damages paid to a child are kept by the court until the child turns 18 years of age; however, payments can be advanced for education or other reasons the court finds to be in the interests of the child.

Civil wrongs

Children are generally liable for the consequences of their wrongful acts, but according to the law, the degree of care a child can be expected to take depends on their age, intelligence and experience.

In the case of a civil action against a very young child, the court can take other factors into account in deciding liability, including:

* whether the child was aware of what they were doing

* whether the child could have known that what they were doing was wrong

* whether they could have foreseen the consequences of their actions.

All these factors constitute what is referred to as capacity. If capacity can't be proven, the child can't be held liable for negligence. The capacity of a child is considered and decided in each case. The closer a child is to 18 years of age, the more the standard of care expected of the child resembles that required of an adult.

Parents' liability for the actions of their child

Normally, parents are not liable for the wrongful acts committed by their children, but they may be liable if:

* the child was acting as the parents' agent

* the child was acting with the parent's authority

* they haven't exercised proper control or supervision over the child and a civil wrong resulted.

In the case study below, the child's father was not considered to be liable, even though he had given the boy the dart, because the boy was considered old enough to use the dart safely. The eventual misuse of the dart was not reasonably foreseeable by the father. The result may well have been different if the child had been eight or nine years old or if the father had provided him with a gun or some other dangerous object.

If parents know their child has vicious or uncontrollable tendencies, they have a much stricter liability for control.

In criminal matters, a child's parents or guardian may be held liable to pay limited compensation (see Young people and crime , this chapter).

Case study

A 12-year-old boy threw a metal dart at a post. It glanced off the post and hit a nine-year-old girl in the eye. He was found not to be negligent because a boy of his age did not have the maturity of mind to foresee that the dart would not stick into the post, but would bounce off, travel at a tangent and hit someone [McHale v Watson [1966] HCA 13; (1966) 115 CLR 199].

Criminal liability

A child under ten years of age is excused from criminal responsibility [see CCA s.38A]. A child under 14 years of age is excused from criminal responsibility, unless it is proved they had the capacity to know that they ought not commit the act at the time of the offence [CCA s.38(2)].

A child over the age of 14 years is generally regarded as having the same knowledge of wrongfulness as an adult. A person under 18 years of age at the time of an alleged criminal offence will have their matter dealt with before the Juvenile Court, unless the offence is serious. If the charge is a serious indictable offence, such as murder, the Juvenile Court conducts a committal hearing, at which the magistrate decides whether or not to commit the young person for trial. If the decision is made to commit, the case is transferred to the Supreme Court; the matter cannot conclude in the Juvenile Court.

Victim's compensation

A child who is a victim of an offence can apply for compensation to the Local Court under the Crimes (Victims Assistance) Act (seeInjuries and damage caused by crime, chapter 11).

Giving evidence

Section 25A of the Oaths Act states that a witness who appears incapable of comprehending the nature of an oath or affirmation may give evidence if the court is satisfied that the witness:

* if under 14 years of age, appears to understand and respond rationally to questions and to be capable of giving an intelligible account of their experiences, promises to tell the truth and understands the duty of telling the truth

* if over ten years of age, understands they will be liable to punishment if the evidence given is false.

Under the Evidence Act a child may be declared a vulnerable witness and special procedures can be put in place to ensure that the experience of giving evidence is made as easy as possible. These special procedures are often used in cases where a child has been the victim of a sexual offence.

These procedures are as follows:

* the child may give evidence from a place outside the courtroom by way of closed-circuit television; the judge or magistrate and others in the courtroom see and hear the evidence from the courtroom

* a screen, partition or one-way glass may be placed to obscure the child's view of a party to whom the evidence relates

* the child may be accompanied by a relative or friend for the purpose of providing emotional support

* a judge or magistrate may order that the court be closed while the child gives evidence, and allow no member of the public in while proceedings are in progress.

In addition, in proceedings where a child is declared to be a vulnerable witness, the judge or magistrate may disallow any question put to the witness in the proceeding if it is confusing, misleading or phrased in inappropriate language. In deciding whether to disallow a question, the court has regard to the child's age, culture and level of understanding.

Contracts and leases

Generally, a person under the age of 18 years is not bound by a contract, except where the items purchased are necessaries, so named because they are necessary for survival [Sale of Goods Act s.7]. Necessaries are such things as food, housing and medical services (seeContracts and consumer protection, chapter 7). For example, a person under 18 years of age can sign a lease to rent a flat or house. If the rent is not paid or damage is caused to the property, they can be sued by the landlord because housing is considered a necessary item for survival. The young person can opt to cancel the contract at any time (seeRenting, chapter 5).

Some traders allow a young person to enter into a contract for goods or services if they have a guarantor. A guarantor is someone over 18 years of age who can be sued for the money owed if the person fails to pay (seeBuying on credit, chapter 7).

Wills

Only an adult can make a will (seeWills, chapter 28).

4.5 Young people and crime

In the Northern Territory, anyone over the age of 10 can be charged with a criminal offence. People aged between ten and 18 who are charged with a criminal offence are dealt with differently and in a different court to adult offenders charged with criminal offences. In criminal cases age is generally an important factor but for young people age is relevant in relation to many things including the manner in which police conduct investigations, interview suspects, and obtain evidence from suspects. Age may also determine whether a matter will proceed to court and which court will deal with it. Age is also relevant when young people are found guilty of criminal conduct and are sentenced. The law grants young people some special rights and protections not extended to adults.

The main legislation governing young people and crime in the Northern Territory is the Youth Justice Act (YJA), The Criminal Code Act (CCA) and the Police Administration Act (PAA).

Criminal responsibility

Under ten years of age

Criminal responsibility is dealt with under section 38 of the Criminal Code. Section 38(1) stipulates that:

A person under the age of 10 years is excused from criminal responsibility for an act, omission or event.

The effect of this section is that at law, a person of such immature age is not considered criminally responsible for their conduct, regardless of whether that conduct constitutes criminal conduct and regardless of the seriousness of that conduct. Police officers and prosecutors are well aware of this rule; however, on rare occasions, people under the age of ten may have a charge laid against them. If this happens, once the police or the court becomes aware of the error, the charges will either be withdrawn or dismissed

If a person under the age of ten has been summonsed to appear in court, a lawyer should be consulted. The lawyer can assist the young person in having the charges dismissed.

Between ten and 14 years of age

A person between the age of ten and 14 years of age is presumed to lack the capacity to commit a criminal offence. This is set out in section 38(2) of the Criminal Code which states:

A person under the age of 14 years is excused from criminal responsibility for an act, omission or event unless it is proved that at the time of doing the act, making the omission or causing the event he had the capacity to know that he ought not to do the act, make the omission or cause the event.

A person in this age group will only be found guilty of a criminal offence if the prosecution is able to rebut the presumption of incapacity and prove, beyond reasonable doubt, that the person did have the capacity to commit the offence complained of. This is known as the principle of doli incapax and requires the prosecution to prove that the young person knew that what they were doing was seriously wrong, or that they ought to have known at the time that what they were doing was seriously wrong.

This principle exists because the law recognises that a young person's level of understanding will vary according to, among other things, background, education and maturity. Thus, where two young people engage in identical conduct giving rise to criminal charges the outcomes for each may be very different. If the prosecution can prove the necessary capacity, the charges will proceed and the person may be found guilty of a criminal offence. If, however, the prosecution is unable to prove the necessary capacity the court will not permit the charges to proceed against the defendant. The magistrate or judge will dismiss the charges and the defendant will be discharged.

Police will generally not lay charges against a person in this age group unless they believe they can prove capacity. In court, it is the prosecutor's job to prove to the magistrate or judge that capacity can be established. The young person's lawyer may admit capacity or argue on behalf of their client that the prosecution cannot prove that they did have the capacity. It is the magistrate or judge's job to decide this issue. It is important to know that the young person's capacity must be determined as it was at the time of the alleged offending and not at the later time they have been brought to court.

The question of capacity must be decided in each case. Where the matter is brought to court, the prosecution may rely on evidence about the background of the young person, including whether they have been spoken to by police for earlier offences. The level of sophistication shown by the young person in the way the offence was committed and the understanding of the offence shown during police interviews are also relevant to the question of capacity. The actual commission of the offence is often not enough to prove capacity. A young person may benefit from the testimony of their parents, school teachers or other people who can give evidence about their level of maturity.

Between 14 and 18 years of age

Young people between 14 and 18 years of age can be charged for criminal conduct; however, they are dealt with in the Youth Justice Court whereas adult defendants are dealt with in the Court of Summary Jurisdiction. For the purposes of criminal law, a young person becomes an adult at the age of 18 years, and therefore is subject to the full range of adult processes and penalties.

Where the offending complained of is more serious both adult and young defendants will be dealt with by the Supreme Court.

Young people and police

It is well known that when police and young people come face to face there is often a clash of attitude. It is therefore important for young people to know that there are certain rules with which they must comply as members of society; however, there are also other rules or laws designed to protect their rights or interests within that society. In the main, these laws and rules are set out in the Police Administration Act and the Police General Orders.

There are rules for police to abide by when dealing with adults and young people in relation to things such as arrest, search, seizure, interrogation and obtaining identifying material such as fingerprints or DNA. In addition to these rules, young people are also provided with some additional rights because of their age.

Where a police officer is required to inform a young person of any matters relating to criminal offending the explanation must be made in a language and manner the youth is likely to understand having regard to their age, maturity, cultural background and English skills. They must also be informed of their ability to access legal advice and representation.

Arrest and interview

To question a young person about their activities, police generally ask the person to accompany them to a police station. Unless arrested, a young person doesn't have to go with police. The power to arrest without warrant is a very significant power and should be used sparingly and only as a last resort. There are strict guidelines in the Police General Orders setting out the circumstances where that power can be used. A person can only be arrested where police believe on reasonable grounds that they have committed an offence, are in the course of committing an offence or about to commit an offence.

On arrest, police are obliged to inform the young person of the offence(s) for which they have been arrested [PAA s.127]. As a general rule, at no time does a person have to answer any questions except those requesting name and address. However, where the young person has been arrested on traffic offences, they might also be required to provide the name and address of any driver alleged to have committed a traffic offence. If the young person does not give their true name and address, they can be charged with an offence. Anything said to police, at any time, whether recorded or not, might later be used in court as evidence.

Generally, police cannot interview a young person unless they believe on reasonable grounds that the person has committed an offence or been implicated in the commission of an offence. If the offence carries a maximum penalty of 12 months or more, at least one 'support person' must be with the young person during the interview [YJA ss.18, 35]. Who constitutes a 'support person' is set out in section 35 of the YJA and includes:

* a responsible adult in respect of the youth

* a person nominated by the youth

* a legal practitioner acting for the youth.

If a police office has made reasonable attempts to have one of the above attend to be with the youth but it was not practicable for such a person to be present within two hours, the officer may call a person from the Register of Appropriate Support persons [YJA ss.35, 14].

Certain people cannot be support persons for a youth. If police are of the opinion that a person is an accomplice of the youth in the alleged offending, that person cannot be a support person for the youth. Likewise, if police are of the opinion that a person is likely to lose, destroy or fabricate evidence relating to the offence then that person cannot be a support person either [YJA s.35(2)].

A support person cannot be under 18 years of age but a youth is entitled to have another particular youth present as well as a responsible adult if he chooses provided it is practicable to do so in circumstances where the officer does not consider the other youth to be an accomplice or likely to lose, destroy or fabricate evidence, for that other youth to attend within two hours and where it would not lead to undue delay in accommodating that request [YJA s.35(4), (6)].

The decision about whether to talk to police should be taken seriously. This is because police will want to talk to the youth about their suspected involvement in criminal activity. Through interview they will want to confirm these suspicions and obtain evidence admissible in court in order to prove the youth's involvement in alleged offending.

Under our system of criminal law a person cannot be compelled to answer police questions in relation to allegations of criminal conduct and as a general rule should never agree to participate in an interview without first speaking to a lawyer. Under the YJA, where practicable, the police have an obligation to inform the youth before they are interviewed (or searched) that they have the ability to access legal advice and representation [YJA s.15(2)].

The NT Legal Aid Commission and the Aboriginal Legal Aid services can be contacted by phone from all police stations. The police are able to provide after-hours phone numbers for these services. A young person or their support person should ring for free legal advice over the phone before any police interview, regardless of whether it is recorded. If it is impossible to obtain legal advice while at the police station, the police should respect a request to defer doing a record of interview until legal advice is obtained.

While no young person is legally required to answer police questions or provide police with information about an offence they have been accused of committing, a youth may decide to cooperate and answer question in relation to alleged offending. In such circumstances it the role of both the police and the support person is to ensure that they are not affected by anything that could disadvantage them, such as alcohol, drugs, tiredness, hunger or injury. A young person can be assisted if it is thought they do not understand a question. It is important that the support person understands their own role and the right of the youth to remain silent. A support person is there to support the youth, not to answer questions and not to persuade the youth to answer questions.

Even when a youth has indicated that he does not wish to answer questions, the police may commence an interview any way. Once an interview begins it if often very difficult for a youth to remain silent when faced with a figure in authority asking questions. At all times, both the youth and the support person should know exactly what it is the youth is to be questioned about. The support person may later be asked to give evidence in court about what they heard and observed. Young people often feel out of their depth at police stations. In an effort to get out of a police station as quickly as possible, a young person will often admit to the commission of an offence even when they are unsure about their guilt. It is important that a young person fully understands, at all times, the subject of the interview.

A young person who speaks English as a second language or who is Aboriginal may require an interpreter as well as a support person to be present during the interview process. Any disadvantage or unfairness to the young person should be brought to the attention of the youth's legal representative.

Except in situations of urgency, police can only search a person under 18 if a support person is present at the time. In urgent situations the police must conduct the search, so far as practical, in a fashion that maintains the dignity of the youth. As a general rule, a female officer must search a female youth and a male officer must search a male youth. A youth's privacy should be protected during searches. Clothing should not be removed unless police have reasonable grounds for believing that the clothing will provide evidence of offending and replacement clothing is provided [YJA ss.19, 20].

Forensic procedures

Strict rules govern the collection of identifying material from young people. These rules are set out in Division 3 of the YJA. Certain preconditions must be met before any such material can be obtained. At all times a support person must be present with the youth when any forensic procedure is carried out [YJA s.29].

Division 3 sets out four categories of forensic procedures, namely:

* intimate procedures

* non-intimate procedures

* voluntary non-intimate procedures

* identifying procedures.

Intimate procedures

Intimate procedures are defined in section 7 of the YJA and include external or internal examinations of intimate parts of the body, internal examinations of non-intimate parts of the body, taking samples of substances from an intimate parts of the body, dental impressions, photographs of intimate parts of the body, X-Rays and the taking of blood, urine and pubic hair samples.

Intimate procedures can only be conducted with the written approval of a magistrate. If approval is granted, the samples must be taken by a medical practitioner or a dentist. The youth concerned must be given the opportunity to have their own medical practitioner or dentist present when the intimate sample is taken. Arrangements for this must be made unless it is impracticable to do so. A police officer is permitted to assist the doctor or dentist to carry out the procedure and may use reasonable force in order to do so [YJA s.30].

The rules do not operate to prevent a doctor or dentist from examining and treating a young person in custody where the young person has requested such treatment.

Non-intimate procedures

Non-intimate procedures are defined in section 8 of the YJA and include samples of saliva, buccal swabs, hair samples, photographs of non-intimate body parts or an impression or cast of a wound. It also includes an external examination of a non-intimate body part.

Non-intimate procedures can only be conducted in the circumstances set out in section 31 of the YJA, namely:

* the youth is suspected by a police officer, on reasonable grounds, of having committed a crime

* the youth has been charged with an offence punishable by imprisonment

* the youth has been summoned to appear in proceeding against the youth for an offence punishable by imprisonment

* an authorised officer has consented to proceedings in respect of an offence punishable by imprisonment.

Where non-intimate procedures are to be carried out, there must be approval from either a magistrate or a senior police officer. A senior police officer can only authorise non-intimate procedures if they are satisfied the youth is over 14 years of age. Written approval must be obtained though applications for that approval may be made over the telephone. The police are permitted to use reasonable force when carrying out non-intimate procedures. A support person must be present when a non-intimate procedure is carried out.

Voluntary non-intimate procedure

This section relates only to offences which if committed by an adult would be punishable by imprisonment for 14 years or more. If a youth and their support person both voluntarily consent, in writing, to a non-intimate procedure, a senior police officer may carry out that procedure. If the procedure is carried out for the purpose of investigating an offence, any information obtained from the procedure must not be used for investigating any other offence other than an offence, which, if committed by an adult would be punishable by a term of imprisonment of 14 years or more.

Identifying procedure

An 'identifying procedure' is defined to include the taking of prints from the hands, fingers, feet or toes or the taking of photographs of non-intimate parts of the youth that are identifying in nature. An authorised officer or a police officer for the time being in charge of a police station may carry out identifying procedures on a youth in the same circumstances as those set out about under non-intimate procedure, provided they are satisfied that the youth is 14 years of age or older. If the youth is under 14, a magistrate must approve the procedure before it is carried out. Approval must be in writing (though the sample can be taken if verbal approval has been given over the phone) and the police are permitted to use reasonable force when carrying out an identifying procedure.

police options

Once the police are satisfied that they can prove an offence against a young offender they must decide which path to take next. There are two options available: the police may elect to deal with the offender by way of diversion (also known as pre-court diversion) which means outside of the court system or they may decide to charge a youth with a criminal offence through the court system.

Under the YJA, police are required to divert young offenders rather than requiring them to appear at court - unless the public interest demands otherwise. If the police decide diversion is not appropriate, then the youth will either be summoned or bailed to appear at the Youth Justice Court to answer the charge against them.

Youth diversion

Police have always had the discretion to deal informally with young offenders outside of the court system, though that was generally done by way of a police caution in the form of a good telling off with next to no real guidelines and no real consistency as to how the discretion was applied. In 2000 the system of pre-court diversion was both expanded and given a legislative basis in the Police Administration Act [PAA ss.120F-120P]. Those provisions have since been repealed and the law relating to youth diversion is now set out in Part 3 of the YJA.

The aim of diversion is to deal with young offenders outside of the formal court process. The thrust of Part 3 appears to be that where possible youth diversion is to be preferred over the instigation of charges thought the Youth Justice Court. A youth is only eligible for diversion if they admit to the wrong doing. If the youth denies the allegation, it must be dealt with through the courts.

A young person can't be sent to a diversion program unless they and their parents consent. If consent is not given, the police can opt to proceed with a criminal prosecution. Not every young offender will be given the opportunity to participate in diversion. Some offences are considered too serious for diversion or the prior history of the defendant may rule it out as an option. If the police decide not to divert a young person they can ask the Youth Justice Court to adjourn the criminal charge to allow time for police to reconsider that decision. If the final answer is no, that decision cannot be appealed.

Youth diversion programs created under the scheme make it possible for young offenders to attend approved programs of training and/or work instead of going before the courts. Some of the programs on offer include counselling, anger management courses, victim offender conferencing, family conferencing and self-esteem courses. If the young person successfully completes a diversion program, no prosecution can later be taken for that offence.

The Youth Justice Court

In the NT Youth Justice Courts are 'open' courts, meaning that any member of the public can be present at hearings [JJA s.22]. However, the magistrate may order the court 'closed' in the interests of justice and prohibit proceedings from being reported in the media. This rarely happens, but may where, for example, a victim of an assault doesn't want to be identified outside the court [JJA s.23].

If, at some stage of the proceedings, the magistrate becomes concerned about the welfare of a young person, they can order a welfare report, which provides information about the young person's situation. A welfare report may for example be called if the magistrate becomes aware that the young person before them is living on the streets or being abused in some way.

The Youth Justice Court can hear a wide range of cases from minor or summary offences, which it must hear, to serious offences. It cannot hear crimes that carry maximum penalties of life imprisonment, such as murder, manslaughter and serious forms of sexual assault. These crimes are heard in the Supreme Court after a committal hearing in the Youth Justice Court [JJA s.35] (see Committal to the Supreme Court , this section).

In the case of certain serious offences, such as robbery, a young person must consent to having their case heard in the Youth Justice Court or the matter will be heard in the Supreme Court. Most young people choose to have their matter heard in the Youth Justice Court because proceedings there are faster and cheaper and there is a limited range of penalties.

Even though a young person consents to having their case heard in the Juvenile Court, complex or serious matters can still be referred by the magistrate to the Supreme Court.

A young person found guilty in the Supreme Court faces the full range of adult penalties, although judges still take age into account. However, in relation to the charge of murder, youths do not face mandatory life imprisonment if found guilty. In the Supreme Court a plea of not guilty is tried before a judge and jury. A not guilty plea in the Youth Justice Court sees a magistrate alone decide the verdict (seeCommittal to the Supreme Court, this section).

Getting to court - summons or bail

Where police decide to prosecute a young person they must decide whether to place the defendant on bail or whether to summons the youth. A summons is a document setting out the time and place the charge will be mentioned at the Youth Justice Court. A young person who receives a summons to attend the Youth Justice Court must answer the summons. If the youth fails to appear the court may issue a warrant authorising the police to arrest the defendant in order to ensure their attendance at court.

A bail undertaking is the other way to compel a defendant's appearance at court. If a youth is placed on bail they must sign their bail undertaking. Bail may be conditional in that the police (or the court) may impose certain conditions restricting the liberty of the defendant. Conditions may relate to such things as residence, curfew, certain people with whom they are not allowed to associate and certain places they are not allowed to attend. It is very important to understand the nature of a bail undertaking. If a young person does not comply with their bail undertaking by failing to appear at court, a warrant for their arrest will usually be issued. Also, if a defendant fails to comply with a condition of bail the prosecutor may apply to the court to have the bail revoked. Where bail is revoked the defendant will be remanded, usually at the Don Dale Detention Centre, until the charge is heard and finally determined.

A young person required to appear at the Youth Justice Court should obtain legal advice as soon as possible from:

* a private legal practitioner

* the NT Legal Aid Commission, which provides a duty lawyer at the Youth Justice Court to assist with minor matters and first mentions of more complex matters. If necessary, the duty lawyer will ask the youth to complete an application for legal aid in more complex or serious matters

* an Aboriginal Legal Aid Service (for young people of Aboriginal or Torres Strait Islander descent)

* Darwin Community Legal Service, which runs free legal advice sessions.

What happens at court

On reaching court, a young person should find and tell their name to a court orderly. An orderly will know which courtroom a young person must go to and when their case is due to be heard. Before court begins, an orderly calls the names of all those appearing on that day. Often a court must deal with other matters listed to start at the same time. It is a good idea to show up about half an hour before the case is due to be heard. The summons or bail form should state what time the young person is due at court, which is usually, but not always, 10am. It is very important to attend court on every occasion required. If a young person doesn't attend court on the date and time required, the magistrate may issue a warrant for their arrest, which means they may be arrested at any time and brought to court in custody.

The following people are present at a hearing in the Juvenile Court:

* the prosecutor who is usually a police officer

* the magistrate who sits at the front of the court and is called 'Your Honour'

* an officer from the Office of Corrections

* the young person

* the young person's parents or guardian

* the young person's lawyer.

The court must make sure that the young person before it understands the proceedings and has an opportunity to be heard and to participate.

In court the young person is referred to as the defendant. When the defendant's name is called inside the court they should move to a microphone to identify themselves. Most defendants appearing at the Youth Justice Court appear with a defence lawyer. The defence lawyer's role is to look at the evidence available and advise the defendant of their options. A young person does not have to take their lawyer's advice and may plead not guilty even when advised that they will most likely be found guilty. Likewise, a defendant may plead guilty even where the lawyer advises that the evidence is lacking. If the young person does plead guilty to the charge(s), the magistrate is normally more lenient with sentencing than it would be if the young person was found guilty after a hearing.

If a young person appearing in court does not have legal representation, the court can order that representation be obtained [YJA s.40].

The parent or guardian of the young person must attend the Youth Justice Court hearing and can be summoned to attend if they don't come voluntarily. If the summons is not complied with the court may order a warrant be issued for the attendance of the parent or guardian.

Courts are solemn places. It is important that people who appear before the Youth Justice Court are respectful and courteous to the magistrate at all times.

Pleading

A young person charged with an offence must decide whether to plead guilty or not guilty to the charge.

Not guilty plea

A plea of not guilty results in a longer and more complicated procedure than does a plea of guilty. A plea of not guilty usually sees the hearing adjourned to a later date to allow the young person and their lawyer and the police to prepare cases. This means working out the evidence and how it will be presented.

Evidence can take many forms. A witness may state, under oath, what they saw. Certain documents might be tendered. Closed circuit TV images and photographs may form part of the case. Forensic evidence such as DNA and fingerprints are particularly useful prosecution evidence as are a defendant's own taped admissions made to police.

On the day of the hearing both the police and the young person are expected to have their witnesses available at court to give evidence.

The first evidence is given by the prosecution witnesses, who are often police officers. Witnesses sit at a desk in court called the witness box. Witnesses are required to take an oath or declare to tell the truth (an affirmation). Each witness is questioned by a prosecutor. The defendant should listen carefully to each witness and inform their lawyer if they disagree with anything said. When the prosecutor has finished, the defendant or their lawyer is also able to question the witness. The prosecutor may then ask further questions for clarification. The magistrate or judge may also at any time question a witness giving evidence.

The prosecution must prove the charge(s) beyond reasonable doubt. After all the witnesses for the prosecution have been called, the magistrate may decide that the prosecution has not provided enough evidence and the young person therefore has no case to answer. The magistrate will then dismiss the case and the young person will be free to go.

If the prosecution in presenting their case provides enough evidence to show that an offence has been committed, the defendant can give evidence themselves and call their own witnesses to give evidence. If the young person decides to give evidence, they, and any other witnesses who give evidence, can be questioned by the prosecutor and the magistrate.

At the end of all the evidence from both sides, the magistrate must then decide whether they are satisfied beyond a reasonable doubt that the young person committed the offence(s). If the magistrate is not satisfied, the charge is dismissed and the juvenile defendant is allowed to go. If the magistrate is satisfied beyond reasonable doubt that the young person committed the offence then they will proceed to sentence unless a defence has been raised.

Where a defendant is acquitted of an offence he can not be tried for that offence ever again.

Guilty plea

A defendant who pleads guilty to an offence must be found guilty of that offence before being sentenced in relation to it. In this situation it is not necessary for the prosecution to call evidence; a summary of the facts is simply read and the defendant admits those facts. (It is important that the facts are agreed before the plea is entered. If the defendant disagrees with the police summary of the facts establishing the offence it is important that the defendant does not admit those facts.)

It is often possible for charges to be finalised on the day the guilty plea is entered, but sometimes this is not possible, especially when the magistrate wants to find out more information about the young person. This will usually see the magistrate adjourn (postpone) the matter to a later date to allow a report about the young person to be compiled. Reports are prepared by the Office of Corrections. An employee of that office speaks to the young person, their parents and others before making their report, which is sent to the magistrate before the next court date. On this date the young person, their parents and their lawyer are provided with a copy of the report before the charges are dealt with by the magistrate.

A young person may be led to understand that an appearance in the Youth Justice Court is unlikely to lead to a harsh penalty. While this may be the experience of some young people, there have been many cases where the court has imposed periods of detention on young first offenders. All matters requiring court attendance should be taken seriously and this includes getting legal advice.

When sentencing a youth, the Youth Justice Court must have regard to the principles and objects of sentencing young people as set down in sections 3 and 4 of the YJA. One such principle is that a youth who commits an offence must be held accountable for that offending and must be encouraged to take responsibility of that offending.

In criminal courts, though especially in the Youth Justice Court, the court must have regard to the young offender's prospects of rehabilitation when sentencing and must generally structure a sentence that will promote that objective. The court is also required to impose a sentence that is proportionate to the seriousness of the offence for which the offender is being sentenced. In sentencing, the court is required to balance the competing interests of the youth, victims of crime and the wider community. Arriving at the right sentence can be a very difficult exercise. If the Youth Justice Court imposes a sentence that the youth or the prosecution considers too light or too harsh, either party can appeal to the Supreme Court. If the Supreme Court agrees, the sentence will be altered, but if the Supreme Court doesn't agree, the sentence will remain in place.

The magistrate's finding

Where a young person pleads or is found guilty of an offence/s by the magistrate, a record of any previous findings of guilt by courts are handed to the magistrate. The magistrate is not permitted to impose a heavy sentence because of any previous record, but they are entitled to impose a lighter sentence when the young person has no record or the record is still good. Once this record has been checked for accuracy, and admitted to, the young person or their lawyer can raise any factors that may mitigate (lessen) the sentence, such as:

* any extenuating circumstances; for example, the young person may have played only a minor role in the offence or was heavily influenced by others to be involved

* whether the young person has had any problems at home or at school

* whether the young person is remorseful and has apologised or paid restitution to the victim of the offence

* any relevant health problems

* character references (see under Sentencing options, below).

Sentencing options

The sentencing options are set out in section 83 of the YJA:

* dismiss the charge for the offence

* discharge the youth without further penalty. This usually occurs when the crime is trivial or the offender is very young and was only involved in the offence in a minor way

* adjourn proceedings: the matter may be adjourned (put off) for up to six months. If the young person doesn't commit any other offences during that time, they will be discharged without penalty. This is commonly referred to as a 'no further trouble order'

* adjourn proceedings for up to 12 months and place the youth on bail. This can be done to assess the youth's capacity and prospects for rehabilitation, or to allow the youth to demonstrate that rehabilitation has taken place or for any other purpose the court considers appropriate in the circumstance

* participation in an approved program. If the youth completes this program then they will be discharged without penalty. If they do not complete the program then they will be sentenced to one or more of the other options available under section 83

* good behaviour bond: the young person must agree to be of good behaviour for a specified amount of time. The bond may include certain conditions, such as requiring the young person live in a certain place, obey their parents or guardians,avoid contact with certain people or report regularly to a juvenile justice officer and may be imposed for up to two years

* impose a fine

* impose a community work order: the young person may be ordered to perform up to 480 hours of unpaid community work in an approved project

* alternative detention: the court may impose a term of detention or imprisonment suspended on the condition that the defendant serve alternative detention at a place specified by the court. Where an alternative detention order is made the youth will not be permitted to leave that place without the prior permission of the Director or a surveillance officer of Correctional Services. The youth may be ordered to comply with various directions as a part of an alternative sentence order. They must also submit to tests for illicit substances or alcohol if requested to do so

* detention and imprisonment: Under the YJA, a person over 15 can be sentenced to a maximum term of two years detention or imprisonment; a person under 15 can be sentenced to a maximum of 12 months. A youth under 15 can only be sentenced to detention, though in some cases a person over 15 may be sentenced to imprisonment rather than detention. Where the Supreme Court sentences a youth, it can sentence under either the Sentencing Act or the YJA. The Supreme Court would sentence under the Sentencing Act if the offending was very serious and warranted a period exceeding two years. A sentence of detention or gaol may be suspended totally or in part, in which case, the young person is released on a good behaviour bond. They are only required to serve time if they breach the bond conditions or by committing a jailable offence/s. Generally, a young person in detention must be transferred to an adult gaol within 28 days after their 18th birthday

* make any other order in respect of the youth it could were the youth an adult offender.

In addition to the above orders the court may also disqualify a young person from holding or obtaining a drivers licence[YJA s.87] disqualification. A young person may also be ordered to pay restitution. The payment would be passed on by the court to a victim who has suffered damage or loss as a result of a crime [YJA s.89].

At the time of sentence it is a good idea to have character witnesses attend the hearing or write letters that can be handed to the magistrate. These character references should be addressed 'To the Presiding Magistrate' and include the following information:

* how long they have known the young person

* under what circumstances they have known the young person, for example, as a friend of the family or employee

* what they can say about the character of the young person. It is most important that such statements refer to the offence(s)

* anything else that they think might be relevant.

Parental liability

In certain circumstances parents may be required to pay up to $100 per week for the cost of their young child's detention. Parents can argue against this penalty, for example if they believe the offence did not arise from lack of parental supervision [YJA s.55A]. Parents can also be required to pay up to $5000 for any damage their child does to property [Law Reform (Miscellaneous Provisions) Act s.29A].

Home detention is not considered to be an appropriate option in matters involving young people so is rarely used.

Reconsiderations and appeals

A young person who believes they have been wrongly found guilty or that the sentence imposed by the Youth Justice Court is too harsh can appeal to the Supreme Court [Y JA s.144]. The appeal application must be made within 28 days of sentencing and legal advice should be obtained (seeLegal aid, chapter 2).

A young person or their parents can also apply to the court for reconsideration if their circumstances change after sentencing [YJA s.161]. All parties are notified of an application for reconsideration and a hearing date is set in the Youth Justice Court. Changes in circumstances relating to the young person will be considered where a sentence is reconsidered and may give rise to a reduction in penalty or a change in sentence generally. Such changes include a young person's co-operation with detention centre staff and real attempts at rehabilitation. A release date may also be reconsidered if a young person wants to attend an education course or take up employment. The views of parents or guardians are sought as part of the review process. Office of Corrections policy states that any decision should promote the best interests of the detainee.

Appeals against a Supreme Court sentence use a different mechanism (seeSentencing, chapter 21).

Breach of an order

A young person who doesn't abide by the conditions of a bond, probation or unpaid community work can be forced to reappear in the court which imposed the original sentence, usually the Youth Justice Court. Legal representation is strongly advised.

If a young person disagrees in court with the prosecutor's statements regarding the breach, but the magistrate decides on evidence that a breach has occurred, another sentencing hearing is held. Information supporting the young person's case can then be put forward. The new sentence depends on the original order, the seriousness of the breach and the young person's current situation. Failing to report to correctional services is not, for example, as serious as committing another crime. A breach usually results in a sentence heavier than the original penalty and can include convictions where none were previously imposed.

Committal to the Supreme Court

A few cases involving young people don't fall within the Juvenile Court's jurisdiction, and sometimes a young person chooses to have their case heard in Supreme Court. These cases begin in the Youth Justice Court with a committal hearing. A committal hearing is a preliminary hearing at which the magistrate decides whether there is enough evidence to justify sending the matter to the Supreme Court for trial or guilty plea. If a young person pleads not guilty to the charge(s) in the Supreme Court, a trial is held. At a trial the evidence is heard again, but a jury, rather than a magistrate, decides the defendant's guilt or innocence. For information about pleading guilty in the Supreme Court seeSentencing, chapter 21.

Legal representation should be obtained prior to a committal hearing. In a committal hearing usually the prosecution's evidence is the only given. A young person's lawyer will be able to question prosecution witnesses. All the evidence in a committal hearing is recorded and a typed copy can be obtained from the court.

Supreme Court trials of young people proceed in the same manner as in an adult case (seeGoing to court, chapter 21). A young person over 15 years of age can receive the full range of sentences that apply to adults, including detention.

Record of convictions

A young person's criminal record can be taken into account in future court cases, but there is a limit on the length of time a record remains valid. Where a young person has been found guilty but has not been convicted by the Juvenile Court, no criminal record will exist once the juvenile turns 18.

In some cases, a young person's criminal history can become finished or spent. Where a court convicts a person under 18 years of age and sentences them to six months imprisonment or less, the conviction is spent at the completion of a waiting period.

For a conviction in the Youth Justice Court, the waiting period is five years. The waiting period begins on the date of the conviction, unless a sentence of detention has been imposed. If a sentence of detention has been imposed, the waiting period begins after the period of detention has been served.

Where a person is later convicted of another offence that is punishable by imprisonment, the waiting period must begin again and may be revived if other offences punishable by imprisonment are committed at any time in the future.

Some convictions cannot be spent, such as those for sexual offences or offences where more than six months imprisonment is imposed.

Impact of convictions

A criminal conviction can affect a young person in a number of ways, including impacting on the ability to get a job or travel to another country. For example, some employers require job applicants to declare any criminal convictions or the employer may carry out checks themselves. An employer might be reluctant to employ a young person with a criminal record, especially if the conviction was for a dishonesty offence.

(See alsoSentencing, chapter 21.)

Abbreviations used in this chapter

BDM: Registrar of Births, Deaths and Marriages

BDMRA: Births, Deaths and Marriages Registration Act 1997

CCA: Criminal Code Act

CEO: Chief Executive Officer

CWA: Community Welfare Act 1983

DHCS: Department of Health and Community Services

EA: Education Act

FACS: Family and Children's Services

FLA: Family Law Act 1975 (Cth)

JA: Justices Act

JJA: Juvenile Justice Act

LA: Liquor Act

MSA: Medical Services Act

MVA: Motor Vehicles Act

PAA: Police Administration Act

YJA: Youth Justice Act

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