Association of Childrens Welfare Agencies Conference
"What Works? Evidence Based Practice in Child and Family Services
Swiss Grand, Bondi Beach
3 September 2002

Keynote presentation
"Lessons from the UN Special Session on Children"
Dr Sev Ozdowski OAM, Human Rights Commissioner

I am delighted to be invited to speak today at the Biennial Conference of the Association of Childrens Welfare Agencies, in association with partner organisations dedicated to the wellbeing of children.

Thank you Nigel (Nigel Spence, CEO of Association of Childrens Welfare Agencies) for your invitation and Kelly (MC Kelly Trewin) for your kind introduction.

I would like to acknowledge the Dharawal people, part of the Eora nation, the traditional custodians of the land on which we stand. I particularly like to do this as it reminds us that Australia is blessed by having one of the oldest surviving cultures in the world.

I am especially pleased to be given the opportunity to speak to members of children's welfare associations and agencies. Consulting and partnering with professionals such as you is a central plank of the Commission's goal in promoting the human rights of children in Australia. It is your invaluable day to day dedication and expertise in children's rights which brings the Convention on the Rights of the Child to life.

Today I acknowledge and applaud your ongoing commitment. In particular I would like to mention the welfare sector's role in providing first-hand testimony to the National Inquiry into Children in Immigration Detention. Ex-Detention Centre social workers, psychologists and others have testified about their experiences and State children's and community services officers have generously shared their time and expertise.

Turning for a moment to that Convention over which I have jurisdiction, namely the Convention on the Rights of the Child (CROC). Let me refresh your memories:

  • this treaty is the pre-eminent international human rights instrument dealing with children's rights;
  • its subject matter is wide, covering everything from the child's right to protection from sexual exploitation to the right to play;
  • it covers civil, political, economic, social and cultural rights;
  • it is the world's most ratified Convention;
  • Australia ratified the CROC over eleven years ago, in December 1990; it was scheduled to the Human Rights and Equal Opportunity Act in 1993;
  • CROC establishes the minimum benchmark for the way children are to be treated.

As you would be aware the main distinguishing feature of CROC is that it recognises the right of all children to participate meaningfully in all matters affecting them. This emphasis has quite profound implications in the way adult society must now negotiate its way through issues involving children.

We at the Human Rights Commission are a statutory body, completely independent of Government. As Human Rights Commissioner, it is my task to promote and protect the human rights of all people in Australia.

In particular, the Commission monitors implementation of the Convention on the Rights of the Child in Australia and has the capability to inquire into acts or practices by Federal Government agencies that may violate children's human rights.

This we can do in two ways. By investigating individual children's complaints of violations of their rights under the Convention or by conducting broader inquiries into systemic violations by or on behalf of the Commonwealth, for example, my current National Inquiry into Children in Immigration Detention, about which more later.

Overall Australia leads the world in protection of children: we do not face widespread malnutrition, child labour and child prostitution; we have no military conscription of under-18s.

In the past decade, significant progress has been made domestically. For example with regard to immunisation - according to Government figures, in 1996 only 56% of one-year olds had been immunised against diphtheria, pertussis, tetanus, polio, measles, TB, but by March 2002, immunisation coverage of one year olds had risen to 90.5%. In education, high school retention rates overall have vastly improved.

However the progress is not uniform. Some children still fall through the cracks, and here I would like to mention three particular categories of children. Firstly indigenous children, who show a high rate of incarceration in juvenile justice centres, low health standards and lower school retention rates. Secondly, children in state institutional care, and in particular babies and children in immigration detention centres. And thirdly the 15% of children living below the poverty line.

When asked where we could improve - there is a range of common themes that have emerged during my ongoing consultations with children and young people around the country. These include:

  • children's desire to participate in decisions affecting them;
  • a lack of harmonisation of laws and practices in relation to juvenile justice in the eight state/territory jurisdictions - for example with regard to police move-on powers;
  • the need for more civics and democracy education;

There were also some calls for the creation of a Federal Children's Commissioner.

The information obtained during my consultations proved to be very useful when I was invited to attend the UN General Assembly Special Session on Children on 8-10 May 2002 as a member of the Australian Government delegation.

I participated in its work, including representing the leader of the delegation, The Hon. Larry Anthony, Minister for Children and Youth Affairs at the Gate Foundation Concert "Turn This World Around - Leadership for Children" on 9 May 2002.

I am pleased to report that both the Australian delegation and NGOs have played a positive role in negotiations on the final document. I was particularly pleased that Minister Anthony's statement delivered on behalf of Australia to the 27th Special Session of the General Assembly on Children mentioned the work of HREOC.

I also represented Australia at the first meeting of Independent National Human Rights Institutions regarding the protection and promotion of the rights of the child. This was held
on 7 May 2002, prior to the UN Special Session. 17 countries sent their representatives (Australia, Belgium, Bolivia, Canada, Columbia, Denmark, France, Iceland, Macedonia, NZ, Nicaragua, Northern Ireland, Norway, Poland, South Africa, Spain and Sweden) and 3 observers.

During the meeting the institutions shared information on their strategies, activities and challenges to their work. In this context, I gave a report on Australia's progress regarding the rights of children and outlined the functions and structure of the Commission. I also spoke about the role of the Asia-Pacific Forum.

The Meeting agreed to:

  • urge Governments and the UN system to mainstream and give a priority to children's rights and to develop appropriate mechanisms, including legislation to advance children's rights;
  • support development of children's independent human rights institutions in every State;
  • call on the UN system to give formal recognition to independent human rights institutions to enable them to be active participants in all UN proceedings;
  • develop a list of long term follow-up and commitments, including a commitment to establish a global network of independent human rights institutions for children and the organisation of regular meetings and exchanges of information.

In addition, during the visit to New York, I conducted a number of consultations with Australian and other NGOs present at the Session and with UNICEF officials.

Turning now to the other issue that has been consuming my time this year, namely the National Inquiry into Children in Immigration Detention.

The Terms of Reference are broad and include child asylum seekers' health and education needs; legal status, mental health and development and overall treatment by staff.

The methodology is very thorough, involving:

  • over 290 submissions received from health, education, welfare and legal professionals as well as members of the public, including refugees;
  • inspections of detention centres which include interviews with detainee children, young people and their families;
  • public hearings (DIMIA and ACM outstanding);
  • focus groups with ex-detainee children and young people;
  • examination of DIMIA/ACM documents.

On a number of occasions I have expressed a concern about the human rights of children in immigration detention. Clearly these children in immigration detention are among the most vulnerable in Australia today, especially those who are unaccompanied minors. Many of these children have fled situations of war and persecution. They have arrived in a strange country after a long journey; for adults these are confronting and traumatic experiences, how much more so must they be for children?

Under Australian law, all "unauthorised arrivals" (people who arrive without visas) are placed in mandatory, non-reviewable and often long-term administrative detention. This is despite the fact that they have not committed any crime by seeking asylum in Australia. It is their right to seek asylum under the Refugee Convention, to which Australia is a party.

Father Frank Brennan gave the following analogy: "We are not to punish them for having the temerity to turn up without a visa. This defect is the equivalent of not having a parking permit when you have entered the carpark while fleeing a bush fire."

The policy of detaining during the processing of applications applies to both children with their family and unaccompanied children. Detention, which can be for a period of over one year, continues until the asylum seeker is recognised as a refugee or deported. Under new laws in September 2001, asylum seekers who arrive at "excised offshore places" are unable to apply for any visa and may be removed to a "declared country" (eg. PNG, Nauru).

The precise number of children held in Australia's immigration detention centres will vary from week to week. However, it is possible to say that over the past few years, at least five hundred children have been held at any one time and that the figures are comparable to the country's entire juvenile detention population. I am pleased to say that at present the number of children in detention in Australia has reduced to about one hundred and twenty, but I would still argue that it is one hundred and twenty too many. And this figure does not include children in Manus and Nauru.

Australia has international obligations to protect these children as outlined in the Convention on the Rights of the Child. According to CROC, the detention of a child shall only be used as a measure of last resort and for the shortest appropriate period of time (article 37(b), CROC).

Even when it is absolutely necessary to detain a child, under the Convention, Australia must ensure that the conditions and treatment of children in immigration detention respect their human rights. This includes their right to education (article 28 and 29), to the highest attainable standard of health (article 24), to practise their culture, language and religion (article 30) and their right to family life (articles 5, 9, 18).

One thing is clear, if Australia decides to detain children, it must accept that this policy brings with it certain obligations to do right by the children.

This poses the greatest problem in the cases of long-term detention, where children and their families cannot go backward or forward. The family may be rejected but cannot be deported to another country because of the difficulty of procuring travel documents or because they come from a country such as Iraq where they cannot be returned at the present time. During the impasse they remain in detention for months, sometimes years.

The effects of this were never more evident than in my most recent visit to Woomera detention centre in June 2002. I was deeply concerned by what I saw and heard. Many children were on hunger strike and all were despairing. We were told that children self-harm now on a weekly basis, and that the mental health of all families has deteriorated markedly in the past six months.

An earlier visit of my officers last January confirmed that there had been a number of incidents of self-harm by children in the facility at the time of the January hunger strike. Children were responding to the "atmosphere of despair" in which they lived in the facility. Five months later, the situation had deteriorated much further. The families that I interviewed have been existing in detention centres for 15 to 20 months. Woomera in particular now looks like a psychiatric hospital, but with no facilities or appropriate staff, instead there are prison guards whose primary experience has been securing adult penal institutions.

I can make no final judgement in the middle of my Inquiry, however I can report that some of the emerging themes, are:

  • the despair of those long-term detainees who can't understand why they are being detained when they only came here for protection;
  • the lack of adequate education - however I wish to acknowledge the recent move to use outside school facilities - this seems to be the right way to go;
  • health and mental care is still a concern with a lack of appropriate or timely medical and psychological care;
  • there is limited access to services for children with disabilities;
  • there is limited availability of child specific nutrition, for example, an unreliable supply of infant formula milk;
  • no adequate protection from witnessing of self harm or violence.

What I was also concerned with during the public hearings was that a number of witnesses requested in-camera hearings because of fear of speaking publicly. These included not only detainees and ex-detainees, but visitors, volunteer workers and ex ACM and DIMIA workers.

In conclusion, Australia has a proud record with children's rights, but noblesse oblige. And there are areas where Australia needs to improve, as I have indicated in my address.

Australians, through our governments, community and professional organisations, schools and businesses need to take greater responsibility to ensure that no child, no matter what its migration status, misses out on the enjoyment of her or his inherent human rights.

Although we in Australia have many things to be proud of, there is much work needed to ensure that all children's rights are respected throughout the country, without discrimination of any kind.

I urge you to inform yourselves further about the situation of asylum-seeking children in this country. I urge you to inform other Australians, especially your professional colleagues, about the issues associated with long-term mandatory detention. We are a democratic country and we need to change public opinion to secure policy change.

I thank you very much for listening and wish you all the best in your vital work with children and young people.

Last updated 5 September 2002

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