A national approach to child rights
Speech by the Honourable Catherine Branson QC, for panel discussion at child rights event: Do We Listen to Our Children
Tuesday, 26 July 2011
at Mallesons Stephen Jaques SydneyIntroduction
Thank you, Tim, for your introduction.
I would like to acknowledge the traditional owners of this land, the Gadigal people of the Eora nation, and to pay my respects to their elders both past and present.
I would also like to thank Mallesons Stephen Jaques, the National Children’s and Youth Law Centre and UNICEF, for inviting me to speak at this event.
As my fellow panelists have demonstrated, there is an urgent and serious need in Australia to take positive measures to promote the well-being of our children: particularly of those children who are the most disadvantaged, such as children who are in out-of-home care and children who are homeless.
Child rights approach
The Australian Human Rights Commission believes that the best way to ensure respect for and commitment to the healthy development of all children in Australia is through a rights-based approach.
Children’s rights as set out in the Convention on the Rights of the Child are not abstract or aspirational. They are grounded firmly in the basic human needs for life, growth and development. Quite aside from its ethical and moral force, the Convention is a legal document which sets out standards, and assigns responsibility for ensuring these standards are met.
The current consideration of Australia’s performance in respecting, protecting and promoting children’s rights by the United Nations Committee on the Rights of the Child is the perfect opportunity for us to consider whether these rights are being protected as fully as possible in Australia. It is an opportunity to call our Government to account for any failure to live up to the standards set out in the Convention.
And there is no doubt that, despite some positive measures to improve the well-being of children, too many children fall through the gaps. It is not good enough in a wealthy, democratic country such as Australia, that significant numbers of children are the victims of violence and abuse, and others do not have a stable roof over their heads.
National Children’s Commissioner
We have been asked to consider what Australia should do to improve the rights of children.
Obviously, it is impossible here to refer to the full range of recommendations made by the Commission in our submissions to the Committee on the Rights of the Child. Instead, I thought I would discuss the need for a national approach, more specifically the benefits of a national Children’s Commissioner.
The Commission believes that a national Children’s Commissioner would make an important contribution to monitoring children’s rights and to making sure that areas where children’s rights are under threat are on the national agenda.
A national Children’s Commissioner would:
- operate as a national advocate for children’s rights, ensuring that government decision-making processes and outcomes are consistent with the best interests of children
- provide a coordinated approach to children’s rights
- develop mechanisms to secure the participation of children in decisions that affect them.
A national advocate
As a national advocate for children’s rights, a Children’s Commissioner would highlight what concrete actions need to be taken by the Australian Government to better protect and promote children’s rights.
A coordinated approach
A national Children’s Commissioner would also play an important role in leading a co-ordinated national approach to significant issues. State and territory children’s commissioners do important work in protecting the rights of children. State and territory governments are responsible for important services that are essential to children such as education, health services, public transport and other community services.
However, many of the issues facing Australia’s children, such as homelessness, violence and bullying, mental illness and access to justice affect all children across Australia. These are national issues and need to be understood, analysed and responded to from a national perspective. A national Children’s Commissioner would focus on promoting national responses to these important issues.
Further, there are some policy areas for which responsibility rests with the Commonwealth and which have a direct impact on the lives of children, including immigration, social security and family law.
To illustrate this point, some children I have been particularly concerned about over the past several years are the significant numbers of young asylum seekers who arrive in Australia without their parents, and who are subsequently detained under our mandatory immigration detention system.
One of our key concerns is that the Minister for Immigration and Citizenship – or an officer of the Department of Immigration and Citizenship – is their legal guardian. The Commission believes this creates a fundamental conflict of interest. It is not possible for the Minister, or an officer of DIAC, to ensure the best interests of the child is a primary consideration in decision-making when they are simultaneously the child’s guardian, the detaining authority and the visa decision-maker. The care of these children falls through the gaps of our child protection system. It is a federal responsibility, and a national Children’s Commissioner could play an effective role in advocating for children under federal responsibility.
Participation of children
Importantly, a national Children’s Commissioner would also ensure that children’s opinions are heard on issues that affect their lives and that those opinions are represented to appropriate people and agencies involved in decision-making processes. All children have a right to participate in decisions affecting their lives.
Although there are some encouraging examples of child participation facilitated by both government and non-government agencies, there are still many opportunities to improve the participation rights of children in Australia, especially for children from vulnerable backgrounds including children in out-of-home care, homeless children, Aboriginal and Torres Strait Islander children and children with a disability.
Conclusion
The appointment of a properly-funded, independent and rights-based national Children’s Commissioner is one important way to ensure a national approach to children’s rights.
I do not wish to close without acknowledging that there have been some promising governmental developments at the federal level with respect to children’s rights. In particular, the National Framework for Protecting Australia’s Children and the National Plan to Reduce Violence against Women and their Children are positive national mechanisms, which we hope will deliver better coordinated and targeted protection of the rights of vulnerable children in Australia. And at the state level, it is commendable that every state and territory now has a children’s commissioner or guardian.
I believe that in Australia we have begun to recognise that the protection of children’s rights is a national priority; that we need to continue to strive for an environment in which all children are able to thrive. Let us continue to call our governments to account – to call on them to fulfil their obligations to respect, protect and promote the rights of all children.
