1,721,035 research outputs found
Schools and the law
No full textThe legal environment in which schools operate and teachers work is increasingly intrusive. There are more statutes, more cases, more regulations, more departmental policies. The law is more complex and compliance is more difficult. Breaches are more serious, more heavily penalised and noisily publicised. \ud
In this book, Professor Des Butler and Dr Ben Mathews analyse the major legal issues confronting schools across Australia, and provide clear, accessible statements of the current legal principles involved. \ud
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They enable readers to understand what the law is and how it is likely to apply in particular situations. \ud
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Each chapter covers both legislation directly regulating schools, for example, the obligation on school staff to report suspected child abuse and neglect, and general statutes that apply in educational contexts such as discrimination laws. They also analyse the growing body of case law relating to incidents at schools or involving schools. \ud
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The book uses an accessible, reader friendly style making it suitable for teachers, policy makers and the wider school community as well as legal practitioners
Responding to child maltreatment
No full textThis refereed correspondence responds to claims made in an article published in the Lancet in December 2008 regarding the nature of mandatory reporting laws, and their benefits and disadvantages for child protection
Children's Criminal Responsibility in Australia: Some Legal, Psychological and Human Rights Issues
No full textAustralian law marks the transition from a protected state of childhood and legal incapacity to a state of liberated adulthood and legal responsibility in many facets of life. The law says at what age an individual acquires legal capacity to make contracts, have sexual intercourse, consent to medical procedures, marry, consume legal drugs, drive a motor vehicle, and participate in elections. These changes in legal personality are not catalysed by merit or personal characteristics, but by the expiry of a span of time from each individual’s date of birth. The ages at which law sets these capacities is informed by historical habits, changing perceptions of children, and by other factors such as social climate, realpolitik and economics. Yet, since individual human beings develop at different rates – physically, intellectually, psychologically and emotionally – it is clear that the law’s conferral of rights and imposition of responsibilities occurs at inappropriate times for many individuals. This discussion sets out the Australian law ascribing criminal responsibility to children. It recognises the problems inherent in the Australian laws, and then outlines some of their legal consequences. These consequences include the low age of criminal responsibility in Australia compared with other nations, and the bareness of the law’s inquiry into when a child is criminally responsible, in many cases deciding the issue simply by age, and at most only seeking to assess the offender’s cognitive state. These legal principles demand an examination of psychological and human rights issues. This article refers to developmental psychological evidence to demonstrate that it is theoretically impossible and morally unjustifiable to measure criminal responsibility only by age. Finally, the Australian legal position is contrasted with international law’s promotion of children’s rights
Judicial considerations of reasonable conduct by survivors of child sexual abuse
No full textTypical consequences of child sexual abuse, particularly post-traumatic stress disorder (‘PTSD’), prevent many survivors of this abuse bringing civil legal proceedings within the statutory time limit. On discovering the nature and extent of their psychiatric injury, or its connection with the abuse, survivors may apply to the court for an extension of time to allow their claim to proceed. Outcomes of these applications often turn on judgments about the survivor’s knowledge of the injury and its cause, and about whether the survivor has taken reasonable steps to discover the nature, extent and cause of their injuries. Reported cases of applications for extensions of time in this context are rare, but Queensland has an emerging body of decisions. These cases demonstrate that judgments about the issues of knowledge and reasonable conduct are made without considering evidence about the symptomatology of PTSD, especially the avoidance criterion. This article summarises the consequences of child sexual abuse, focussing on PTSD, before outlining the statutory provisions for extensions of time. Case studies of applications by survivors with PTSD to extend time are then synthesised. The psychological evidence is used as a standard against which to analyse judicial reasoning about survivors’ knowledge and ‘reasonable’ conduct. Finally, the question of whether PTSD can constitute a legal disability in the context of an application for an extension of time is addressed. Because similar questions are raised by extension provisions in nearly all Australian jurisdictions, the analysis in this article has implications for future cases in both Queensland and other jurisdictions
Queensland Government Actions to Compensate Survivors of Institutional Abuse: a critical and comparative evaluation
No full textGovernments in a number of jurisdictions have responded to revelations of sustained abuse and neglect of children in State institutions by establishing schemes awarding financial compensation to survivors, and amending limitation statutes to enable the commencement of civil proceedings. In 1999, the Forde Commission of Inquiry into Abuse of Children in Queensland Institutions reported a similarly devastating incidence of abuse and neglect, and its recommendations included the establishment by the Queensland government of a monetary compensation scheme. This article contrasts the Queensland government’s calculated failure to respond to this recommendation, and its antithetical personal injuries legislation, with the actions of its counterparts
Child sexual abuse and access to justice for civil claims: Time to reform the Limitation of Actions Act 1974 (Qld)
No full textIn 2015, Victoria passed laws removing the time limit in which a survivor of child sexual abuse can commence a civil claim for personal injury. The law applies also to physical abuse, and to psychological injury arising from those forms of abuse. In 2016, New South Wales made almost identical legal reforms. These reforms were partly motivated by the recommendations of inquiries into institutional child abuse. Of particular relevance is that the Australian Royal Commission Into Institutional Responses to Child Sexual Abuse recommended in 2015 that all States and Territories remove their time limits for civil claims. This presentation explores the problems with standard time limits when applied to child sexual abuse cases (whether occurring within or beyond institutions), the scientific, ethical and legal justifications for lifting the time limits, and solutions for future law reform
Female genital mutilation : legal, attitudinal and practical reform
No full textFemale genital mutilation (FGM) is a cultural practice common in many Islamic societies. It involves the deliberate, non-therapeutic physical modification of young girls’ genitalia. FGM can take several forms, ranging from less damaging incisions to actual removal of genitalia and narrowing or even closing of the vagina. While often thought to be required by religion, FGM both predates and has no basis in the Koran. Rather, it is a cultural tradition, motivated by a patriarchal social desire to control female bodies to ensure virginity at marriage (preserving family honour), and to prevent infidelity by limiting sexual desire.\ud
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In the USA and Australia in 2010, peak medical bodies considered endorsing the medical administration of a ‘lesser’ form of FGM. The basis for this was pragmatic: it would be preferable to satisfy patients’ desire for FGM in medically-controlled conditions, rather than have these patients seek it, possibly in more severe forms, under less safe conditions. While arguments favouring medically-administered FGM were soon overcome, the prospect of endorsing FGM illuminated the issue in these two Western countries and beyond.\ud
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This paper will review the nature of FGM, its physical and psychological health consequences, and Australian laws prohibiting FGM. Then, it will scan recent developments in Africa, where FGM has been made illegal by a growing number of nations and by the Protocol to the African Charter on Human and Peoples’ Rights 2003 (the Maputo Protocol), but is still proving difficult to eradicate. Finally, based on arguments derived from theories of rights, health evidence, and the historical and religious contexts, this paper will ask whether an absolute human right against FGM can be developed.\u
Australia
No full textOne of the most striking developments in the legal regulation of the education system in Australia in recent years has been the enactment across Australia’s eight State and Territory jurisdictions of legislation aimed at the prevention and reporting of child sexual abuse (CSA). Governments, educational authorities, schools and teachers are now tending to take seriously the issue of CSA - or, on the most cynical view, at least to take seriously the fact that they can be held liable in negligence for failing to prevent CSA in the first place (for example, if perpetrated by a teacher), and or for failing to prevent further CSA (whether perpetrated by a teacher, other school employee, or any other wrongdoer who abuses a child).\ud
There are two major domains of legislative action in this context. The first domain concerns the imposition of criminal history checks on existing and prospective applicants for registration as teachers, to minimise the likelihood of CSA being perpetrated by teachers on students. Legislation has been developing since the late 1990s in this arena, but has recently proliferated. The second domain concerns the introduction of mandatory reporting legislation requiring teachers to report known and reasonably suspected CSA, to ensure that teachers and schools take steps to detect and report known and reasonably suspected CSA perpetrated by any wrongdoer. While mandatory reporting legislation for teachers has been gradually introduced since the late 1970s, fresh developments continue to occur in this arena as well.\u
Female genital cutting : An overview of Australian legal principles, ethical controversies, and medical, legal and social challenges\ud
No full textFemale genital cutting (also often called female genital mutilation, or female circumcision) is a cultural practice that originated thousands of years ago. Female genital cutting has various forms, some of which are more invasive than others, but all of which produce health, legal and social consequences for those involved. Due to patterns of immigration in Australia, especially since the 1990s, there are women in Australia who have experienced female genital cutting. There may be some families, or some parents, who still hold a cultural commitment to female genital cutting. As a result, female genital cutting presents complex legal, ethical, medical and social challenges in contemporary Australian society. Medical practitioners and other health and welfare workers may encounter women who have experienced genital cutting and who require treatment for its sequelae. Currently, legislative frameworks for female genital cutting vary across states and territories, including the penalties for conducting it, and for removing a child for the purpose of conducting it outside Australia. This presentation provides an overview of the history, nature and consequences of the various forms of female genital cutting, and of the major Australian legal principles, ethical controversies, and medical, legal and social challenges in this field.\u
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