"Monitoring Implementation of the Convention on the Rights of the Child: challenges for Australia"

Dr Sev Ozdowski, Human Rights Commissioner

Keynote presentation delivered at PLAN International Australia conference, St Vincents Hospital, Mary Aikenhead Conference Centre, 27 Victoria Parade, Fitzroy
Wednesday 17 April 2002

Acknowledgements

I am delighted to be invited to speak today at the Plan International Australia conference on using rights to advance child centred development.

Thank you Mr Wishardt for your invitation and kind introduction. I would like also to acknowledge Ms Wendy McCarthy, under whose stewardship PLAN is sure to go from strength to strength.

I would like to acknowledge the Wurundjeri people, the traditional custodians of the land on which we stand.

Introduction

I am especially pleased to be given the opportunity to speak at this conference on the rights-based approach to improving children's lives.

Consulting and partnering with key child rights NGOs such as you is a central plank of the Commission's goal in promoting the human rights of children and young people 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 building a world fit for children.

The Convention on the Rights of the Child

I am going to speak about the subject I know best: monitoring the Australian government's implementation of the Convention on the Rights of the Child (CROC). This treaty is the pre-eminent international human rights instrument dealing with children's rights. Its coverage is wide: 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. Australia ratified the CROC over eleven years ago, in December 1990; it was scheduled to the Human Rights and Equal Opportunity Act in 1993.

HREOC's role

As Human Rights Commissioner, it is my task to promote and protect the human rights of all people in Australia. In particular, the Commission can:

  • monitor implementation of the Convention on the Rights of the Child in Australia;
  • inquire into acts or practices that may violate children's human rights, in two ways:

(i) by investigating individual children's complaints of violations of their rights under the Convention;(ii) by broader Inquiries into systemic violations by or on behalf of the Commonwealth, for example, my current National Inquiry into Children in Immigration Detention;

  • make recommendations to the Federal Parliament on measures needed to prevent future violations and/or remedy past breaches;
  • review new legislation and policy to check CROC compatibility;
  • report on any actions that should be taken by Australia in order to comply with the human rights treaties that it has agreed to be bound by; and
  • conduct public education campaigns on children's rights, e.g. "Youth Challenge: teaching human rights and responsibilities" on the Commission's web site at http://www.humanrights.gov.au/youthchallenge/index.html

Australia's record so far

So what can we say about the situation of children and young people in Australia? Overall we lead the world in protection of children. We do not face challenges such as widespread problems of 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, immunisation: according to Government figures, in 1996, only 56% of one-year olds had been immunised against diphtheria, pertussis, tetanus, polio, measles, TB. By March 2002, immunisation coverage of one year olds had risen to 90.5%.

There are similar improvements in other areas, eg. school retention rates.

However the progress is not uniform. Some children still fall through the cracks. We still need to address the serious problems faced by:

  • Indigenous children (high rate of incarceration in juvenile justice centres; low health standards; low school retention rates);
  • children in state care, and in particular in immigration detention centres;
  • the nearly 15% of children living below the poverty line; [1] and
  • possible budget cuts that will affect the availability of services to children with disabilities.

Too often, some of Australia's children slip through the net. This is just not good enough.

Therefore I am delighted to learn that Australia's first Minister for Children, the Hon. Larry Anthony, will be leading Australian delegation to the UN Special Session on Children next month in New York. This will send a strong signal to the world that the Australian government takes children's rights seriously. It will hopefully provide an opportunity to renew our commitment to the rights of children in Australia. It should give an impetus to development of a new national plan of action for children in Australia for next decade - a plan which is practical and has achievable goals.

Consultations with children and young people

Last year I conducted a series of consultations around the country on the challenges facing children and young people today. These consultations were to precede the planned UN Special Session on Children which was to take place in New York in September but postponed due to the tragic events in that city. The Special Session was to evaluate the 10 years since the World Summit for Children, and to set new goals for the survival and development of all children. The Special Session will now take place in three weeks' time, and I will be taking Australian children and young people's concerns there.

Some common themes emerged during my consultations. The first one is participation, which is one of the four overarching principles of the Convention on the Rights of the Child, enshrined in article 12. It is crucial that children and young people have a meaningful say in those issues that affect them on a daily basis. Even very young children can express their views; the key is finding ways for them to do so. Where children are involved in the decision-making, it greatly increases the chances of programs actually working.

Participation by young people in decisions about their education is vital. Young people tell me that they need more civics and democracy education in Australian schools. They need more information and guidance on how to participate effectively in the democratic processes.

Culturally appropriate and flexible schooling that takes into account of the needs of children with behavioural problems or language difficulties can go a long way to addressing low school retention rates. Rather than trying to mould the child to fit the system, the system must be changed to fit the child. The child's right to education is protected by articles 28 and 29 of the Convention.

There was criticism of the legal system in some states for providing inadequate protection and claims that the standards of proof for cases of child sexual abuse were too high and the sentences too light.

Regarding young people's relationship with police, participants in my consultations complained of police 'move-on' powers being applied more rigorously to groups of young people of Indigenous or Asian background.

In many states, young people raised the need for an advocacy structure for children to be put in place. Participants at the consultations recommended the creation of Children's Commissions at the State and Federal level, as well as an independent office for children which could monitor and collect data on children's well-being and rights.

Children in immigration detention

One of my priorities is the care and protection of children and young people in immigration detention. These children are among the most vulnerable in Australia today, especially those who have come here without their parents. Many of these children are asylum seekers who have fled situations of war and persecution. They have arrived in a strange country after a long journey, where a different culture, language and religion are often practised. Confronting and traumatic as these experiences are for adults, how much more so must they be for children?

Under Australian law, all "unauthorised arrivals" (people who arrive without visas) are placed in mandatory and non-reviewable 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 1951 Refugees Convention, to which Australia is a party. 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 child is recognised as a refugee or deported. Under new laws in September 2001, children 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, approximately five hundred children have been held at any one time and that the figures are comparable to the country's entire juvenile detention population.

National Inquiry into Children in Immigration Detention

During 2002, I am conducting a major national Inquiry into the human rights of children in immigration detention centres. Among other human rights issues, the Inquiry will cover the conditions under which children are detained, their health and education in detention and the impact of detention on their well-being.

Over the course of the Inquiry we will

  • receive submissions, of which we now have approximately 70;
  • hold public hearings in capital cities;
  • inspect immigration detention centres;
  • conduct focus groups with children who have been in immigration detention;
  • examine individual children's cases for possible breaches of their human rights;
  • conduct research on what is needed to ensure the well-being of children in immigration detention.

I hope to report on the results of the Inquiry to the federal Parliament by the end of 2002.

CROC and children's rights in immigration detention

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 respects 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.

During the course of the Inquiry we will cover in detail all aspects of the human rights of children in immigration detention.

However, at these early stages it is possible to see a few main issues emerging.

The threats to the mental health of children in immigration detention in particular were made especially apparent to me during a Commission visit to Woomera facility in January this year. That visit confirmed that there had been a number of incidents of self-harm by children in the facility at the time of the hunger strike. Children were responding to the "atmosphere of despair" in which they lived in the facility. A full report on this visit to Woomera will be sent to the Attorney-General in the next month.

I wish to emphasise that immigration detention centres do provide health, education and other services, but I am not convinced these services are sufficient to meet their needs or indeed their rights under the Convention. Children whose parents arrive on a tourist visa and then seek refugee status are able to attend school in the Australian community and receive support services such as counselling. However, children in immigration detention centres are reliant on DIMIA and the detention service providers to provide these services. In general, during my consultations and general inspections to detention facilities, I have found these services are not available to the same degree.

What concern me greatly are the cases of long-term detention, where children and their families cannot go backward or forward. Their refugee application may drag on and on. They may be rejected but the family cannot be deported to another country because of the difficulty of procuring travel documents or because they come from a country such as Afghanistan or Iraq where people cannot be practically returned at the present time. During the impasse they remain in detention for months, sometimes years. It is important to remember, too, that children in immigration detention have already seen, heard, learnt, feared and faced an incredible array of challenges before reaching Australia.

I will tell you a story that might assist in understanding the human face behind all this talk about detention policy.

During an inspection visit of the Villawood immigration detention centre last year, I met with a number of families who are detained there. I will call one young person we interviewed "Lisa". Lisa is 13 years old and arrived with her family from Iran earlier this year. We asked Lisa what she was learning at school. She learns English, maths and handicrafts, but not geography. "What do you want to be when you grow up?" we asked her. "A doctor", she replied instantly, her face lighting up. At that moment, Lisa's father smiled at his daughter and this image of what the future might bring.

Now I will not say that Lisa and her family have a good claim for protection as refugees as I am unfamiliar with their claims. Nor will I say whether Lisa should become a doctor in Australia or in Iran or a third country. But what I will stress is that Lisa is a child. She is a child who, during her time in Australia, is entitled to all the rights children are entitled to in this country. And it is the responsibility of all of us to ensure that the children like Lisa in immigration detention receive the care and protection they are entitled to, and that under no circumstances should detention further harm children's well-being.

Conclusion

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 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 hope that the UN Special Session on Children will provide a unique opportunity to focus on how best to improve children's rights in Australia and the world.

ENDNOTE

1. According to the Smith Family and NATSEM's "Financial Disadvantage in Australia 1990-2000: the persistence of poverty in a decade of growth", 28 November 2001. See http://www.natsem.canberra.edu.au/pubs/poverty01.html

Last updated 26 April 2002

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