Children’s rights: everyone, everywhere everyday

Megan Mitchell
National Children’s Commissioner
Australian Human Rights Commission

 

Castan Centre Human Rights Law Conference
Human Rights 2013
The Edge, Federation Square
Corner of Swanston and Flinders Streets, Melbourne
Friday 26 July 2013

 

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1. Acknowledgments

Thank you, Bronwyn. I would like to thank the Castan Centre for inviting me to speak today. I am also delighted to share this session with Judy Courtin, and to hear more about the critical issues concerning sex crimes and the Catholic Church.

I would like start by acknowledging the Wurundjeri peoples of the Kulin nation, traditional custodians of the land on which this meeting takes place, and pay my respects to their elders past and present.

2. Introduction

I commenced in my role as National Children’s Commissioner on 25 March this year. Back then it was autumn, and now the winter has come.

Like the changing seasons between the end of March and now, my work at the Commission has advanced. I will speak more about my main priority to date – The Big Banter listening tour - later. However I hope that in my work I have remained true to how I was recruited.

Some of you may have heard that during my recruitment process I was asked to participate in a session with a small group of Year 4 & 5 students from Kingsford Smith School, in Holt, ACT. The aim was to simulate a general consultation with children, and to evaluate how well each applicant communicated with children regarding a particular topic.

During introductory sessions, the students were asked: What do you think the National Children’s Commissioner should be like? What characteristics should they have?

A nine year old boy, ten year old girl and twelve year old girl kindly agreed to read some of these students’ responses for us.

 

[Recording of voices reading the following

• Friendly with kids.
• They have good taste in the job and help others.
• Really up for it.
• Good understanding of what they are here to do.
• Someone with good responsibility.
• Understand kids.
• Understand what kids want.
• Listen to kids.
• Don't talk down to [children] or put them down.
• Don't talk as if [our] say doesn't have a meaning.
• Hearing things from kids is better than thinking [adults] know everything.
• Work well with kids.
• They’re nice.
• They understand children.
• They listen to children.
• Friendly.
• Take in other people’s ideas.
• Happy.
• They like being around kids.
• Smart.
• Outgoing.
• Someone who’s smiley.
• Someone fairly young.
• Someone who is not seven feet tall, hunched over and scary - not a zombie.
• Someone you know well.
• Someone that’s patient.
• Someone that’s caring.
• Someone who would listen.
• Someone who would help you.
• Someone who’s calm.]

I like to think that I meet at least some of the criteria. Although I note there were no suggestions that I had to be a human rights lawyer – so I was in luck!

Nevertheless, their words demonstrate that, with sufficient time and preparation, children and young people were well able to participate in the broader selection process. I feel honoured, then, to have been chosen via a process which involved children, at least in some part.

Fundamentally, this recruitment process embodies Article 12 of the Convention on the Rights of the Child - the right of the child to be heard.

And it is about the Convention and the UN treaty system that I will speak today: what it means for children’s rights in Australia, and why we should care what the UN Committee on the Rights of the Child says about Australia’s treatment of its children.

I hope in doing so I can give some life to the Convention, which is, in fact, a remarkable document that we should all learn about and celebrate.

2. The Convention on the Rights of the Child

A number of human rights treaties underpin my work as National Children’s Commissioner, but undoubtedly the most important is the Convention on the Rights of the Child.

Not only is it the most widely ratified human rights treaty in the world, but it covers a comprehensive spectrum of human rights - civil, political, economic, social and cultural - and sets out the specific ways these rights should be ensured for children.

The Convention recognises that children have the same basic human rights as adults, while also needing special protection due to their vulnerability. When it came into effect, children were recognised as rights-bearers for the first time in the international human rights treaty system.

Apart 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. Australia has obligations to realise the rights in the Convention as, by ratifying the treaty, it has promised, at international law, to protect a range of children’s rights.

The question, of course, is whether the nation has made good on this promise.

3. UN Committee Concluding Observations on Australia

The UN human rights treaty system gives us one way of monitoring this promise.

As many of you will be aware, in 2011 Australia submitted its fourth report to the UN Committee on the Rights of the Child, on its progress in implementing the Convention, and appeared before the Committee in June 2012.

In addition, the Australian Human Rights Commission and non-government organisations, including the Castan Centre, engaged with the UN Committee during this process, providing alternative information and views on Australia’s progress under each of the Convention’s articles.

When the UN Committee issued its Concluding Observations on Australia in June 2012, it was the culmination of a process of information-gathering and consideration over several months.

4. What did the UN Committee conclude on Australia?

In short, the UN Committee said that while Australia has made some progress, there are still many children who fall through the gaps.

It was deeply concerned about certain groups of vulnerable children, and whether Australia had gone far enough in its efforts to ensure their protection: in particular Aboriginal and Torres Strait Islander children, children in juvenile justice systems, children with disabilities, homeless children, children in out-of-home care, and asylum-seeking and refugee children.

The Committee also pointed to the lack of overarching legislative and policy measures to specifically address implementation of the Convention and the rights contained therein. That is, Australia has no comprehensive plan or strategy for realising the Convention as a whole, and lacked a coordinated or child-specific approach to data, budget and activities.

5. Birth registration

While some of its recommendations were general in nature, or based on principles, others were specific, providing clear direction.

For example, on the right to birth registration contained in article 7, the UN Committee noted the difficulties faced by Aboriginal people in relation to birth registration, and recommended that Australia review its birth registration process to make sure that no child is disadvantaged due to procedural barriers to registration. It also urged Australia to issue birth certificates for free.

It is promising that in November last year the Castan Centre and Monash University researchers commenced working on an ARC Linkage grant to conduct a three year project, entitled ‘Close the Gap on Indigenous Birth Registration’. The aim of this project is to develop culturally appropriate, evidence-based solutions that will not only positively impact on the lives of Indigenous Australians through overcoming existing barriers to the birth registration system, but also assist governments by ensuring that they have accurate population data on which to base future policies and programs. I applaud this work and hope to meet with those involved, in the very near future, to discuss their progress and to look at ways that I can promote this very important initiative.

6. Asylum seeking children

The UN Committee also made many observations about children at risk or vulnerable, and needing special protection, such as asylum seeking children. For example, it was deeply concerned that in Australia

• child asylum seekers are subject to mandatory detention without time limits and judicial review
• the best interests of the child is not the primary consideration in refugee determinations and, when it is, it is not being consistently undertaken
• there is a conflict of interest inherent where the legal guardianship of unaccompanied minors is vested in the Minister of Immigration and Citizenship
• there is a policy of off-shore processing of asylum and refugee claims.

The Committee recommended that Australia bring its immigration and asylum laws into full conformity with the Convention and other relevant international standards.

As you will be aware, this has yet to happen. Children who arrive unauthorised by boat continue to be transferred to offshore facilities for processing, and in the newest configuration, for resettlement in PNG. And according to DIAC figures for 31 May, as many as 1731 children remain in immigration detention facilities in Australia.^[1]

When I visited Pontville immigration detention facility in Tasmania a month or so ago, there were around 250 unaccompanied minors – all boys - detained there.

A number of the boys told me about their experiences in detention and what issues most concerned them.

Some of them expressed worry about the length of time they had been detained, and the uncertainty about when they would be released into community detention.

A number of them had been in detention for more than six months, and those who had been there for prolonged periods presented with significant anxiety, depression and feelings of hopelessness.

They also raised concerns about the gaol-like environment, self-harming and suicidal thoughts among their numbers.

7. Respect for the views of the child

Hearing their voices in this way brings me to one of the Guiding Principles of the Convention, as articulated in article 12: respect for the views of the child. This is often called the right to participation.

I am especially interested in how we can promote meaningful participation of children in decisions and processes that affect them, because it is so fundamental to the enjoyment of other rights.

For example, in April I spoke at the Family Law Pathways Network in Albury Wodonga about the importance of privileging the voices of children in family law proceedings.

The UN Committee in its Concluding Observations acknowledged that Australia has put some mechanisms in place for the participation of young people, but that significant gaps remain.

It was especially concerned about the importance of being heard for children who are especially vulnerable, for example, children placed in out of home care.

Indeed, as of 30 June 2012, there were as many as 39,621 children living in out-of-home care in Australia, an increase of 5.24% from the previous year.^[2] And the rate of placement of Aboriginal and Torres Strait Islander children was 10 times the rate for non-Indigenous children.^[3]

One of several recommendations made by the UN Committee to address neglect and abuse of children, and the increase in children needing out of home care, was to establish accessible and effective child-friendly mechanisms for reporting neglect and abuse.

This acknowledges that one of the key measures to ensure child safety and well-being is to give children at risk an opportunity to be listened to, and be taken seriously.

I believe we should get a whole lot better at how we facilitate children’s complaints, at all levels corresponding to children’s lives, especially for those most vulnerable.

On this issue, the UN Committee also recommended that Australia sign and ratify the third Optional Protocol to the Convention. The Optional Protocol establishes an individual communications mechanism for children and their representatives, and was opened for signature and ratification on 28 February 2012. I believe the Australian Government is currently considering whether to the sign this Optional Protocol.

I urge the Australian Government to ratify this important treaty, which provides children with an avenue for making complaints when their rights have been violated, and when domestic systems have failed them.

8. How can we use the Concluding Observations?

Unfortunately, recommendations made by treaty bodies such as the UN Committee on the Rights of the Child cannot be enforced on State Parties. However, that does not mean that they are ineffective tools in the struggle for human rights protection. They can be employed by human rights defenders, government and children themselves.

Firstly, I think that we can use the Convention, combined with the Concluding Observations, to provide the most comprehensive framework for planning and measuring child well-being.

I like to think of the Convention as the blueprint for action on all of the areas of child well-being which we should guarantee to each child in Australia – every child, everywhere, every day. And the Concluding Observations are the report card on Australia’s progress in achieving this.

Secondly, the recommendations of treaty bodies such as the UN Committee on the Rights of the Child have a persuasive force because they are based on internationally agreed standards of treatment. We should constantly remind the government that they have obligations to children, and use the recommendations to leverage for child-centred approaches to legislation and policy, and prioritise particularly vulnerable groups of children.

Thirdly, the Convention and Concluding Observations can be empowering documents that allow children and their advocates, including parents and carers, to argue for improvements in individual and all children’s lives.

For this, we need to work better at making the Convention and its principles more accessible to children and young people, as well as adults. For example, by developing and using materials which are child-friendly translations of the Convention.

It is important that the Convention and the Concluding Observations are widely known, and promoted. I understand that the Australian Government met with NGOs and others to discuss the Concluding Observations last year. It is also pleasing that the Australian Government tabled the Concluding Observations in federal parliament in May 2013. However, I am concerned that now we will be complacent about progress on the Committee’s findings.

With this in mind, as National Children’s Commissioner, I am intending to include some more information about the Concluding Observations in my first statutory report to parliament this year, so that Australia can focus on areas of key concern.

9. The Big Banter

This brings me to my own activities as National Children’s Commissioner, and my early priorities for promoting and protecting children’s rights under the Convention.

As I described to you, listening to the views of children and taking them into account is a guiding principle of the Convention, and is also a key priority for me in the way that I conduct my own work as National Children’s Commissioner.

With this in mind, since June I have been undertaking a national listening tour, called The Big Banter.

During The Big Banter I have been listening and learning from children and young people themselves, and their advocates, and asking them to help me identify the priorities for my work.

People have written to me. People have emailed me via kids@humanrights.gov.au. And I have received over 300 responses to the Big Banter survey, from children of all ages in all states and territories.

Children and young people have also been sending me postcards with messages such as the one on the Slide.

I have also been conducting workshops with children and young people and they have been documenting their views for me on butchers paper – like this Slide shows.

As you can see from these slides, the children have been raising a variety of issues with me using these processes. For example, cost of living is a particular concern that has been raised by children a number of times, as evidenced by this slide of a postcard sent to me.

I also encourage everyone in this room to engage the young people you may represent, or are in contact with, with The Big Banter survey.

It’s available online and the web address is somethingincommon.gov.au/thebigbanter. Children and young people also go in the running to win a prize if they contribute on the site.

10. Conclusion

I will finish today with a few of the children’s responses to the survey, some of which link quite clearly to the concerns raised by the UN Committee in its Concluding Observations

One 10 year old girl in Victoria who completed The Big Banter survey told me about her thoughts on asylum-seeking children:

She said:

Young children from different countries who come on the ships should be allowed to stay in Australia because they’re young and they need to be safe from what’s happening in their country.

I think the UN Committee couldn’t have put it better itself.

A 15 year old boy from Queensland who completed the survey said:

Police are always questioning me on my way home. I think they do this because I am a south pacific islander and they must think I am going to start a fight or something.

And I am reminded of the UN Committee’s concerns about race discrimination in Australia.

And finally, an older girl from the A.C.T. wrote about not knowing how to get help, and said:

Sometimes my friends need help but don’t know where to go or don’t want to make a fuss.

Her words speak to me of the importance of the Convention’s guiding principle on respecting the views of the child. We need to make it possible for children to ask for help without feeling like they are causing ‘a fuss’.

And we need to take children’s rights, and our obligations to ensure those rights under international law, seriously.

Thank you.

 

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^[1] DIAC, Immigration Detention Statistics, 31 May 2013.
^[2] Australian Institute of Health and Welfare, Child protection in Australia, Child protection in Australia 2012-13, Table A25, p 81.
^[3] Australian Institute of Health and Welfare, Child protection in Australia 2011-12, p 41.