General rights

Contributed by TimothyHampson and current to 27 July 2018

Rights as a child in civil law

Contracts

A person under the age of 18 in Western Australia is not bound by a contract. A contract entered into by a person under the age of 18 is only enforceable if the contract is confirmed by the person when they turn 18. There are some exceptions to this rule. A contract entered into with a child is enforceable if it is a contracts for necessities. This is for contracts relating to goods and services that are necessary for the young person to maintain a reasonable lifestyle. Some examples are contracts relating to clothing, accommodation, food and medical attention. These contracts still might not be enforceable if the child did not really need them or the terms of the contract were unfair. A child is also bound by a beneficial contract of service or apprenticeship.

Wills

The Wills Act 1970 section 7 says a will made by a person under the age of 18 is not valid in Western Australia. However, before section 17 and 18 of the Act was repealed in 2007, a person irrespective of their age could make a valid will and revoke a will with or without making a new will if that child was a member of the air-force on active service, or a soldier, or a sailor at sea. If the will was made before these sections were appealed it is valid. A will, that was not revoked before the repeal has effect as if the repeal had not occurred, but may only be revoked after the repeal in accordance with section 15 of the Act.

Drinking

If liquor is sold or supplied to a juvenile on licensed premises, the Licensee or any person who supplies the juvenile with alcohol is committing an offence (Liquor Control Act 1988). The young person who receives the liquor is also committing an offence under the Liquor Control Act 1988. The Act also prohibits a person under the age of 18 from entering a licensed premise where liquor is served unless they are there for a meal and under the supervision of a responsible adult, or if they are a member of the family of a lodger of the premises. (s 120).

Under the Act a juvenile is allowed to be supplied alcohol at an unlicensed premise e.g. house party, only if the supplier is their parent or the child’s parent has given the supplier consent to supply alcohol to their child. A parent can only supply their child with alcohol or consent to their child being supplied with alcohol if the parent is not intoxicated themselves.

If the supplier has parental consent, then they can supply the child with alcohol as long as the supplier is supervising the child’s consumption and neither the child nor the supplier are intoxicated themselves (s 122A)

Tattoos

It is an offence under the Children and Community Services Act 2004 to tattoo a child under the age of 16. The Act states that when a child turns 16 any person who wishes to tattoo a child must first get written permission from that child’s parent in relation to the manner it will be done. The written consent must specifically describe the type of tattoo it will be and the part of the body it will be on. This does not apply to tattooing or branding carried out for a medical or therapeutic purpose.

Piercings

The Children and Community Services Act 2004 prohibits the piercing of any private or intimate part of a child under the age of 18. Private or intimate part includes the genitals, nipples, anal area and perineum. A person must not pierce any other part of child’s body unless they have written consent from a parent specifying the part of the body where the piercing is allowed. If a child has reached the age of 16 they are allowed to get their ear pierced and they do not require consent from anyone else. Body piercing that is done for a medical or therapeutic purpose may be done regardless of that person’s age and without parental consent.

Smoking

It is an offence under the Tobacco Products Control Act 2006 to sell, supply or deliver a tobacco product or smoking implement to any person under the age of 18. A tobacco product not only includes items like cigarettes but also includes any product where tobacco is a substantial ingredient intended for human use. A person is prohibited by law from purchasing tobacco or smoking implements that will end up being used by a person under the age of 18.

Voting

An Australian citizen who is 18 years of age is eligible to put their name on the State and Commonwealth Electoral Roll (Commonwealth Electoral Act 1918 s93). A person who is entitled by law to have their name put on an Electoral Roll and does not do so commits an offence, unless that person can show that this was not due to their failure to send a completed claim form to the Electoral Commissioner (s.101). A person must vote in State elections in relation to which State Roll they are on and also Commonwealth elections and Referendums if they are on the Commonwealth Electoral Roll (s.245). A person on the Electoral Roll who does not vote will be issued with a fine unless that person was out of Australia on the day of the election or they have a reasonable excuse for not voting (s.245(4)). A person who is registered on the State Electoral Roll may vote in Local Council elections, but this is not compulsory. The Post Office or an Electoral Office provides enrolment cards

The Electoral Commissioner will send a penalty notice to anyone who failed to vote when they were supposed to. First time offenders are fined $20 and it increases to $50 if a person has previously paid a penalty or been convicted of this offence. If the fine is not paid then court action will be taken against that person

Marriage

The Commonwealth Marriage Act 1961 (The Act) states that the marriageable age for both females and males is 18 years and over.

The Act states a number of grounds when a marriage is invalid. One ground is where one party only consented because they were forced to marry the other person. Other grounds are where a person only consented due to fraud or mistaken identity. A marriage is also invalid where a party to the marriage is not capable of understanding the nature and effect of the marriage ceremony. Marriage is also forbidden between a brother and sister (includes full blood or half blood) and also between a descendant (e.g. daughter or son or an ancestor such as a father or mother) of the other person. Any person who has adopted a child is prohibited from marrying that child even if the adoption is no longer effective.

It is possible for a minor who has turned 16 but still under the age of 18 to get married. The person the minor would like to marry must be of marriageable age. The minor would need to apply to a Magistrate or Judge and an inquiry is then held to see if there are any exceptional or unusual circumstances to justify the marriage (s.12). Pregnancy in itself is not generally considered an exceptional circumstance to allow a minor to marry but it is taken into consideration by the Court. Some examples of the things the Court will consider are: whether the couple are compatibale, the maturity of the couple, the capacity to support the child financially and any other relevant circumstances. Consent from the minor’s parent or guardian is another condition that must be satisfied before the marriage can take place (section 13 and section 14). MARRIAGE ACT 1961 - THE SCHEDULE sets out who needs to give consent for the marriage of a minor. The SCHEDULE also states who needs to give consent for adopted children as well. Depending on the circumstances, the child may require the consent of both parents, one parent, a guardian or from a prescribed authority.

In some circumstances consent from a minor’s parent, parents or guardian can be waived. The minor would need to apply to the prescribed authority in writing supported by a Statutory Declaration explaining the facts and circumstances why consent should not be required in the circumstances. The prescribed authority will then consider whether it would be impracticable and unreasonable to ascertain the views of the person, whether there no reason to believe that the person would refuse consent and that there is no valid reason why consent should not be dispensed with (s. 15).

If the prescribed authority decides not to dispense with the consent requirement, the minor can apply to a Magistrate or Judge for their consent in place of the person who has refused consent (s. 16). The Magistrate or Judge will hold an inquiry and if a person has unreasonably refused consent, or when the Magistrate or Judge is considering the minor’s welfare and they believe it would be unreasonable to refuse consent to the marriage, then consent to the marriage may be granted (s. 16). Before this inquiry can be held a certificate signed by a family counsellor proving that the minor has received counselling must be provided to the Magistrate or Judge, unless they do not believe counselling is reasonably available to the minor.

If the marriage is granted due to exceptional or unusual circumstances then the marriage must take place within 3 months of the Order being made or the Order has no effect (section 12).

Sexual Relationships

A person cannot have sexual relations with another person under the age of 16. A person also commits an offence if they sexually penetrate another person without their consent (Crim code 25).

It is an offence for a person to do the following: sexually penetrate a child under 16, engage in sexual activity with a child under 16, indecently deal with a child under 16, encourage a child to do an indecent act who is under 16 or indecently record a child who is under the age of 16. Sexual penetration means to penetrate the vagina, urethra or anus with any part of a person’s body or object (Crim code section 319). An ‘ indecent act’ means the act is committed in the presence of, or is being viewed by another person or taking photographs or recording the act in any way (s. 319). The term ‘deals with’ includes doing any act which, if done without consent, would constitute an assault (crim code s. 319). It is a defence to the above offences (but not if victim is under 13, section 331 and not if victim was under the care, supervision, or authority of the accused s. 321) if the offender can prove they had reasonable grounds to believe the child was aged 16 and over or that the accused person was not more than three years older than the child (Crim code s. 321). It is also a defence to sexual penetration of a person under 16, to encourage a child under 16 to engage in sexual behaviour, or to indecently deal with a child under 16 if the accused can prove they were legally married to the child (s 321). It is also a defence where the indecent act or person intended the indecent act to be private conjugal act.

Once a person has attained the age of 16 they can have sexual relations with another person who is at least 16 years old as long as they both agree to it (consent to it). There are some exceptions where it is illegal to have sexual relations with a person who is 16. A person can never have sexual relations with a child who is under the age of 18 if that child is under that person’s care, supervision, or authority. There is no defence to say the accused reasonably thought the child was 18 (s.322). The only defence is where the accused can demonstrate they were legally married to the other person (crim code s. 322).

It is also illegal for a person to sexually penetrate another person when they knew the other person was a lineal relative. If the person agreed to being sexually penetrated and knew the person was a lineal relative then they have committed an offence too (s 329). It is illegal for a person to engage in any kind of sexual activity/act where the person knows that the other party is their defacto child (crim code s.329). An offence is also committed where one party sexually penetrates or engages in sexual activity/act and that person knows that the other person is incapable of understanding the nature of the act or incapable of guarding himself or herself against sexual exploitation( s.330). It is a defence to a charge under this section to prove the accused person was lawfully married to the incapable person.

Education

A child is to be enrolled in an educational programme for each year of the compulsory education period for that child. This requirement is met if a child is enrolled at a school (s. 10) or a parent of the child has been given permission by the Chief Executive Officer to home school their child (s. 10 and s. 48). The compulsory enrolment requirement will also be satisfied if a student is enrolled in a non-government school registered under the School Education Act 1999.

When a child is in their final years of school they can participate in options other than school ( s. 11B). An example is where the child is doing an apprenticeship. A parent of the child would need to inform the Minister before this can happen (s. 11D)

A student must on the days on which the school is open for teaching attend the school they are enrolled at or participate in an educational program approved by the Principal at the school or at another place ( s. 23). A student can attend at some place other than the school at which he or she is enrolled if there is an arrangement in writing between the Principal and a parent of the child (s. 24).

There are circumstances where a child is not required to attend school or an educational program. This is where the student is prevented from attending because they are suffering from a temporary physical or mental incapacity or any other reasonable cause (s. 25(2)). A child is not required to attend school if their parent has notified the school as soon as possible and within 3 school days of the day on which the non-attendance started (s. 25(2)). If the reason is due to the child’s incapacity the parent must provide a medical certificate to the school (s. 252).

The Principal has the power to prevent a student from attending school if the child is suffering from an infection, is contagious or is otherwise harmful to the health of persons who are at the school. The Principal must be advised by the Chief Health Officer or Medical Practitioner and the Principal must advise a parent of the child in writing before the child can be prevented from attending (s. 27(2)). A student can also be excused from attending a government school on a day or during a period if it is recognised as having religious or cultural significance for the student or the student’s parents (s 30(1)). The school must receive notification before the student can be exempted and it generally needs to be provided before the Principal has made the decision. (s. 30 (2 and 5)).

School and student discipline

Teachers and staff members of a government school are allowed to take reasonable action (including physical contact with a student or their property) in some circumstances. Action can be taken for the student’s own care, to manage the student, to re-establish order and to prevent or restrain a student from putting another person’s safety or property at risk (School Education Regulations 2000 s 30).

The Principal of a government school may determine the breaches of school discipline that are to be dealt with by the Principal or other members of the teaching staff (Education Regulations 2000 s 40). The Principal and teachers at government schools are allowed to discipline a student for breaches of school discipline but a student can never be disciplined by way of corporal punishment (School Education Regulations 2000 s. 40.

If a student at a government school is in breach of school discipline, a school administrator who works at the school is allowed to take action in a number of ways. They can withdraw the student from any class or classes of instruction (must not be more than 5 consecutive school days). They can alter any of the student’s recess or lunch period. They can also restrict or prohibit the student’s participation in a school activity or activities (School Education Regulations 2000 r 41). Any action taken by a school administrator is not to affect any requirement of the student to attend the school (r. 41(3)).

If a student commits a breach of school discipline, a staff member at the school can detain that student after school hours. The staff member must get permission from the Principal and must make a reasonable attempt to contact a person responsible (e.g. parent) for that child. The child must not be detained for longer than 30 minutes unless a person responsible for the child has been contacted and the Principal or a person authorised by the Principal has made appropriate arrangements for the child to get home and the person responsible for the child has agreed to it (s. 42 regulations)

A Principal can suspend a student for a breach of school discipline. Before the Principal can suspend the student, the student and parent or a responsible person for the student must be advised orally or in writing (if for serious breach of school discipline then must be in writing) of the reasons for the proposed suspension and the duration of the proposed suspension. The Principal must also allow any persons advised a reasonable opportunity to give reasons why the student should not be suspended (Reg 44).

The maximum period of suspension is generally 5 consecutive days. For a serious breach of school discipline, the maximum period is 10 days. The Principal can also suspend a child for up to 10 days by making a recommendation to the Chief Executive office (Regulation 43). The Chief Executive officer also has the power to suspend the student from school for an indefinite period but must make an order regarding the educational instruction the student will get during that time (reg 43 and section 94).

If a student is suspended for a total of 10 or more days in a school year the Principal needs to take reasonable steps, discussing the student’s behaviour and educational programme with the parent or responsible person, with a view to avoiding any further breaches of school discipline by the student (regulation 45).

If a student is suspended for 3 or more consecutive school days or for a total of 5 or more school days in a school year, the Principal of the school is to ensure that educational instruction is made available to the student (Regulation 46).

Truancy

Section 36 of the School Education Act 1999 says that an Attendance Officer has the following powers to deal with absentee students from school and students who are doing an alternative option to school (e.g. apprenticeship) but are not complying with the attendance requirements. They may stop and detain a person and enter any premises to which the public has access. A person detained can be questioned by an Attendance Officer and might be required to inform an Attendance Officer their full name and address, their age and may have to state the name of the school they are enrolled at, or the name of the relevant provider if it is one of the alternative options to school. If a person does not comply with any requirement directed to them or misleads an Attendance Officer they may be fined $2,000. It is also an offence to obstruct or hinder an Attendance Officer and the penalty is $500 ( s.37).

A police officer without a warrant can also apprehend a child who is reasonably suspected of being a truant and return the child to school.

If a parent does not ensure that their child attends school at the place they are enrolled can be fined $1000 ( s.38). Where an enrolled child of compulsory school age persistently fails to attend school the child may be referred to an Attendance Panel

If a child persistently fails to attend school, the child’s case may be referred to the Attendance Panel (s.40). The panel enquires into the reasons of the child’s failure to attend school and provides advice and assistance to the child and their parent. If the child continues to not attend school the child or parent of the child can be prosecuted and fined (s.40).

Where a child is in breach of the enrolment requirements under of the Act or is in breach of the requirements in relation to school attendance they may be prosecuted for these breaches (s.41). Prosecution must not take place until a number of requirements are met. One requirement is that the child must have first been referred to the Attendance Panel. There must also be a failure of the child to follow the Attendance Panel’s advice and assistance. A certificate must be given showing that reasonable practicable steps have been taken to secure compliance with attendance, but the child is in breach. In relation to enrolment in options other than school, a certificate must be provided that shows reasonable practicable steps have been taken to secure compliance but the child fails to comply ( s. 42).

As an alternative the child may be referred to the Juvenile Justice Team for consideration instead of commencing a prosecution (s.41(2)) but only after the child has been dealt with by the Attendance Panel.

If the child is a habitual truant in relation to parental neglect or where the child’s parents are unable to provide adequate care for the child then sometimes the court can place the child in the care of the CEO of the Department of the Public Service (CHILDREN AND COMMUNITY SERVICES ACT 2004 section 45).