Australia’s review in the UNCRC – Session 2 live blog [Closed]

oatsandsugar —  June 5, 2012 — 1 Comment

Reporting live from Geneva, at the Palais Wilson for the 60th Session of the UN Committee on the Rights of the Child, with the Australian Delegation.  For a live video stream, check out the webcast!  Follow @Janchildrights and @Oatsandsugar for tweets to come.

6:52 – Editing interviews with members of the Australian NGO delegation, preparing for today’s session which begins in three hours.

10:02 – Government delegation arrives, we are about to begin

10:03 – Session begins with CHAIR’s welcome. We will, this morning, be talking about the second half of the issues in the convention. Today, “I hope we will be more focussed”

10:05GASTAUD – Re: Juvenile Justice: “it attests to the two fundamental aspects raised yesterday … discrimination … and coordination.” Children may be treated differently in different states, and, thus, discriminated against. Listing the ages of criminal responsibilities in the states is useless to the commission, perhaps looking at case studies would enlighten us more.

0-10, 10-14, 14-18 are the different relevant age groups. Imagine a young offender killing his father, would this be tried in a court for minors, or a court for adults, or alternative dispute resolution, will incarceration or alternative punishment.

10:08KOTRANE – “perplexed and concerned” about, 7 years ago, we discussed the same issues, and recommended the same things … there has been no development related to our recommendations, especially regarding the criminal responsibility age of 10 (Australia’s explanation is re: education, expectation of communities, and ability to know right and wrong … something about ICT’s?). KOTRANE does not find that these explanations are sufficient in the light of this committee’s jurisprudence (12 as minimum age of responsibility, or higher was recommended in one of the committee’s General Comments). The statistics on the issue are insufficient.

10:12 – MADI – Re: Asylum seekers and refugee children. Welcome that children are now held in the “least restrictive” way, and for the least possible time. But even the Australian HR Commission is worried about the number of children in restrictive detention. Is it possible to revise the immigration act, to allow for a time limit, and for judicial review for asylum seekers? Regarding the asylum processes, what are the stats regarding the number of applicant, time in processing, and amount rejected.

10:13AIDOO – Welcomes the focus on early childhood development. Concern is that focus is on 4 year olds, but this is often too old for some issues. Are there plans for under 4 year old children in a holistic childhood package? This kind of practice has been shown (i.e. by World Bank research … early childhood focus has a 7x return on investment) to benefit children and families, especially in marginalised communities. UNESCO est.’d that more than 76% of Australian preschools are private … how does this effect prices, and therefore access for poorer families.

Re: quality of education: rich cultures, but lack of learning second languages, this is an opportunity that should be explored for academic benefits, and also for increasing understanding of tolerance. For the same reason, HR should be taught early, not merely for the Child’s knowledge, but to increase their tolerance. What is happening with community language schools? What about bilingual education for indigenous Australians? Welcomes the identification of gender disparity against boys, which may be in issue in Australia, especially for retention.  What is the success of the “Success for Boys” initiative? Where boys involved in the creation of the initiative?

10:20NORES – Support families through direct monetary transfers, how does this work? How do you ensure that the best interest of the child are taken into consideration in cases of repatriation of immigrants.

10:21HERCZOG – 18 weeks of minimum wage may not be enough for families with loans.  How did you decide on 18 weeks? How did you decide on the wage? Has there been consideration of the ILO’s consideration of the 6 months minimum time for breastfeeding.  How do you supplement incomes for families where the minimum wage isn’t enough?  How many fathers are taking this leave?  Very happy with the new early childhood education curriculum, but what about the lack of proper guarantee of quality in private early childhood education?

Re: overrepresentation of Aboriginal children in the special care system – what efforts have been made to improve assessment of placement, are indigenous families being considered first for indigenous children?  What after care, follow up services are provided?

Re: school violence – is family conferencing, and non-legal methods being used to prevent violence in schools?

10:27LEE – What of substance abuse, especially in aboriginal communities? Are the measures “band-aids” or do they go to the causes of the abuses?

10:28WOOLCOTT – Re: KOTRANE’s question on the impact of the labour government, “the new policies … speak for themselves”.

10:30MANNING – Re: PERES on plain packaging for cigarettes, implemented for all Australian cigarettes from August, for all cigarettes from December.  These are one of a number of efforts to reduce smoking in Australia, including increasing a 25% increase in tobacco excise duty, banning tobacco advertising on the internet, social marketing campaigns, etc.  On a state level, banned in public indoor areas, sometimes banned in outdoor public areas (e.g. stadiums).

The tobacco industry has combatted this, with legal challenges, WTO challenges by producer countries paid for by the WTO.  But the Australian government will continue to try and ban this.

10:34WOOLCOTT – Re: Aid as a % of GDP.  We are increasing our commitment to aid, and “are committed to 0.7% as our eventual target”.  He continues to delineate where the money is being spent, and the effects of this aid.

10:37POPE – Australian Delegation, Immigration – Re: Asylum – We agree that community detention isn’t instead of the expedient processing of asylum applications and the grant of permanent visas.  Children’s applications, especially unaccompanied, are expedited.  Children may be interviewed separately if required.  Re: conditions of children awaiting asylum clearance – provided housing, schooling and medical, the only restriction is that the adults do not have permission to work, but other activities, such as volunteering, are allowed.  For unaccompanied, live-in help is provided.

Re: Guardianship and the “perceived” conflict of interest of Minister as decider and guardian, the department has taken on a consultant, and is taking advice to remove this conflict.  Guardianship Act seeks to find them independent guardians for unaccompanied children.

10:43MAURAS – How do you define “rapidly” for the rapidity of processing for children that is promised.

10:44 CHAIR – with the minister as the guardian, we find that there is a conflict, and this is “a serious problem” – this is “a matter of priority”

10:45POPE – Re: Guardianship, the ministry for immigration does take into account children’s welfare, not just border control, so we don’t think the conflict is as dramatic as you insinuated.  We believe the new Commissioner will help to minimise the perceived conflict of interest “I would dispute that it is actual”.

10:48MAURAS – What of the length of the procedure?

10:48POPE – “I don’t have figures … on the exact length of time … it is longer than we wish it was”.  A difficult problem is undocumented persons.  For applicants, they would be held for less than 90 days before being placed in community detention.  Number of arrivals, similar to number of applications, 2000+ in 2009, 6000+ in 2010, 4000+ in 2011, in 2012 so far 3700+.  This figures are for arrival by boat (not by air).  For boat arrivals, visa applications are, in total 2009 there were 1131 visas, in 2010 there were 2010, 2011 4820, 2012 1570.

Re: disabled immigrants, they do arrive, but they are subject to a health check in Australia, “disability does not automatically result in a failure to meet the health requirement.  These checks are for budgetary and public health reasons.

10:54CORDONA – in 2010, a German doctor wasn’t allowed in because his child has Down’s Syndrome.  This isn’t contagious, and it seems to be a monetary consideration only.  This is discriminatory.

10:55POPE – “I don’t have details to discuss it with you”.

10:55WOOLCOTT – Re: Poverty in Australia

10:56McKENZIE – Australia provides family payments for families with children, especially to families most in need.  Through a social security system involving targeted, means tested payments and targeted tax.  There have also been improvements such as parental leave, payments for families with children in schools, and more.  Family Tax Benefit is paid to more than 2 million families, and includes special benefits for families with teenagers in high-school.  There is also an increase in the tax-free threshold to encourage young people into the workforce.

Re: support for the unemployed to get back into the workforce, with more than 5.5 billion dollars over 4 years to assist job seekers.  “Learn to Earn” also helps young people out of work to continue study to improve employability.

11:04WIJEMANNE – Re: Mental Health, there is evidence of excessive diagnosis and use of psychotropic medicine in young people.  Is this an issue you have come up with in the health sector? Is there research on this?  And what services are there for young people with emotional problems, especially for suicidal adolescents? How do these services reach the most vulnerable children, such as indigenous Australians and the homeless?

Re: Sex/reproductive health services – what child-friendly services do you have for this? What life-skills services do you have? How do they reach vulnerable children?

Re: education for vulnerable children – What informal education mechanisms do you have for children who drop out at an early age?  What are you doing about the immense rates of bullying in school (68% of girls in high-school?)?

11:10MANNING – Re: Corporal Punishment.  The Australian Government doesn’t endorse corporal punishment in schools, and it isn’t permitted in government schools, but it isn’t illegal in some private schools in some states, but there are few schools that practice this.  In foster and residential care, corporal punishment is banned, also in childcare, and juvenile justice facilities.  Within families, “it is important to note that the legal treatment of corporal punishment is contentious in Australia, and there is still the common law defence to assault of “reasonable chastisement””.  There have been state reviews on this law, but no federal reviews, and the state reviews have allowed the exception to continue, and the exception is narrow.

11:13MAURAS – While the explanation seems “reasonable”, on the other hand, violence against women and children in Australia is quite high (“one of the highest figure’s I’ve seen”).  These tend to be related, there may be a link between the allowance of the corporal punishment and violence against women and children.  What are the measures in the violence plan, or the plan on children, to address situations where women perpetrate or unable to stop the violence.

11:16MANNING – There are positive parenting programs, through the national frameworks, complemented by state and territory services and frameworks (is the question being addressed?).  It is contentious in Australia, but it is not something the government has considered. Early childhood development education programs for parents have a focus on minimising domestic violence.

11:21AYRES – Re: Disability, there is a varied system, state by state, about how children with disabilities are defined, and how they are treated.  Disabled children are “underrepresented in childcare services”.  Re: special schools, 4.4% of Australian schools are “special schools”, 8+% of students identify themselves as having a disability, thus, a significant proportion of children with disability are in mainstream schools.

The government has a significant reform agenda around disability, especially around disability standards within education. The government aims to improve “consistency and equity” in disabled education.

11:25McKENZIE – Re: disability generally, there is a reform agenda including inclusive/accessible communities, mentoring, rights protection, economic protection, learning, health, wellbeing and more.  There are also other programs, including “the better start for children with disability” which provides up to 12000 dollars for early intervention programs for disabled children.  Another big change is the fundamental reform of the insurance system, with advisory and expert groups helping to create this system.

11:28CARDONA – We already know that Australia is in favor of inclusion of disabled children, but some of the data doesn’t match what we know, I think, because there is not enough data.  8.8% of students have “disabilities”, is that really disability, or “special education needs”: these are different.  We need more data on this.  The data doesn’t match what we have heard from other sources.

11:31AYRES – trying to defend Australia’s data, “it is definitely improving”, especially with regards to disaggregation.  We also have a national policy towards integration rather than “special” education.  The Government acknowledges that data needs to be improved, but steps are being taken to improve this.

11:34CHAIR – Another problem with disability is the issue of forced sterilisation, “and you promised us an answer on that”.

11:35WOOLCOTT – Our aid program takes disability into consideration, with integration as a goal.

11:35MANNING – Re: sterilisation, the government’s view is that it should only be done “as a matter of last result”.  Under law, it can be done only in an emergency, as a byproduct of surgery, or with the permission of a court.  The data suggests that a number of sterilisations are low, a few requests a year.

11:38CHAIR – a 10 minute break.  After this, 15 minutes on health, education and juvenile justice.  At 12:35 we will ask questions for the afternoon’s session.

11:53CHAIR – Break’s over

11:53WOOLCOTT – Re: Health, mental health and suicide.

11:54AYRES – Mental health is being taken into account by the new curriculum, and by early detection through the school system.  We do have frameworks for children between the ages of 0-3, not just for the year before school.  Further, we do have a comprehensive response and prevention system for extreme emptional problems in Australia.

11:58McKENZIE – Re: Mental health –  The states are helping the federal government with a 10 year plan on mental health, as well as a report card.  These developments include 3 year old emotional health checks,

12:01DAVY – Re: Breastfeeding – there is a strong drive towards breastfeeding, which we can can see by the high take-up rate.

12:02AYRES – Re: STI’s – There are bad statistics, but there are new measures being implemented, including education and availability of health, especially reproductive health services.

12:03CHAIR – What about drug use?

12:05McKENZIE – There are measures, “but I am not sure we can provide more details about this”.

12:06WOOLCOTT – Education is also being used to prevent drug use, and a federal campaign has been in place since 2001.

12:07AYRES – Re: Education – all education, including early childhood education, is now under the same federal ministry, as in line with OECD recommendations on the matter.  There were questions on the focus on the year before school: whilst there is a reform towards access to preschool in the year before school (900m on this program) but there is more than 20 billion a year on all preschool, thus, the focus isn’t too undue.  There is a focus to increase attendance of preschool, especially for communities at risk.

12:13CHAIR – There has been discussion of bullying, are there conflict resolution mechanisms to reconcile peers, are there concrete proposals to remedy bullying?

12:14AYRES – There are many policies, including a “national day of action against bullying” and the use of school counsellors to mitigate bullying early.

12:16HERCZOG – there are symptoms of bullying, but there are also root causes, are these being tackled? What is happening to the offenders, since they are often troubled kids?

12:17AYRES – I haven’t seen data that shows a relationship between corporal punishment and bullying (but the question was aimed at whether or not corporal punishment was being used to punish bullying?).  Bullying can be indicative of problems in the bully, but our educational professionals have been trained in dealing with this.

12:19CHAIR – Let us shift to juvenile justice – minimum age, intermediary ages and more still have to be discussed.

12:20MANNING – Note: although between 10-14 there is criminal liability, there is still the rebuttable presumption of doli incapax – the prosecutor must show that the child knew the gravity of their actions.  What happens to children at various stages of the criminal process? Juvenile offenders are dealt with in Children’s Courts, although jurisdictions see criminal prosecution and incarceration as measures of last resort.  Further, even if guilt is found, incarceration is unlikely because there is a preference towards alternative measures of rehabilitation.

12:25McKENZIE – note that most children in the judicial system get there because of child protection, and the government’s process for developing a judicial system for the protection of children has been created with consultation of NGOs and other actors.  Further, this consultation has been used for the development of out of home care, as well as the transition from out of home care to independence.

12:26CHAIR – remaining questions in juvenile justice: bad conditions in specific detention centers, and to detention of juveniles alongside adults.

12:29MANNING – Children are tried separately, and they are held (at least until the age of 17) in juvenile detention facilities.  They may be transferred to adult prisons, but they are held separately within those.  Regarding to conditions in detention – we are aware of media reports that highlight issues of bad conditions, and the federal government has changed the system in response to that.  In the ACT, this change was done pursuant to the territory’s Human Rights’s act.

12:31CHAIR – last question on juvenile justice: if a child aged 13 was responsible for a serious crime, can he be deprived of liberty?

12:32 – MANNING – if the child rebuts doli incapax, then he may be deprived of their liberty.

12:32CHAIR – we close the series of questions on the CRC and move to the OP’s.

13:34GURÁN – Rapporteur on the first OP – there has been 5 years since the ratification of the OP, and this is the first review of this OP in the committee.  There are the following areas of concern:

  • dissemination and training of information of Human Rights information – does CRoC education include education on the Optional Protocols?
  • data – there is a lack of comparative data on the OP at a federal level, it is difficult to compare state data.  Is the government working towards a unified system?
  • Regarding: National action plan to eradicate trafficking in persons – it is a general plan, but does it take into account the special requirements of children?
  • Disparity between states and regions – Can you explain the situation where the legislation covering the OP is different.  Child prostitution is criminalised at various ages in various states (16 in Victoria, 17 in Tasmania, etc.), does this appropriately treat the children as victims, or does it treat them as criminals? Australia considers sale of children as slavery or trafficking, but is this enough? It doesn’t, for example, cover the sale of organs.
  • What about services offered to victims of these crimes.  In NT, sexual abuse and child prostitution seems to be widespread in indigenous communities, what is being done about this?  What about services for victims in remote areas?  Is there not a lack of counselling services in those areas?  Is there a standard, or plan for access for remote areas? Is there a help line for victims of child prostitution?
  • Regarding sex tourism, the committee appreciates the Government’s efforts and the legislation in the area.  What is the strategy, moving forward, to protect children from sex tourism, especially for extraterritorial legislation?

12:42 – KOTRANE – Regarding age of consent, the age is 16, and this is the age of consent in many countries.  But, given that the age of 16 is the age of consent, are they able to work in prostitution and pornography, are they protected from this?   Regarding sale of children, there is not enough information.  In your information, illegal adoption and forced work, are they considered the sale of a child?  This is not clear.  There appears not to be a specific legislation on sale of children, and on simulated and audio child pornography.  Also, what about extradition and extraterritorial legislation?  I was pleased to learn of the 2006 decision, in light of the OP, of a rule allowing extradition for sale of children even if there is no extradition treaty, this is an exceptional piece of legislation and should be applauded.

12:48KOOMPRAPHANT – What protections are there for special needs groups?  What measures shall be taken to reintegrate children who run away from home, and who are victims, back into the family?

12:49MADI – The rapporteur mentioned sex tourism, and I would like to join him in applauding the new, comprehensive legislation on illegalising sex tourism.  Australia is now a most successful country in terms of extraterritorial legislation. Those convicted of offenses abroad, do these judgments include compensation to victims, who may be overseas?

12:51WIJEMANNE – Re: “online grooming”, what actions are being taken to prevent children from being taken advantage of online?  Most child pornography in Australia is imported, is there action to prevent importation?  Also, we would like to applaud Australia’s extraterritorial legislation on sex-tourism, what steps are being taken further?

12:53SANDBERG – You do a lot in international coordination, are you going to maintain or extend this?  In your development/aid program, do you have requirements that the recipient country isn’t a party to sale of children and other breaches?

12:54MAURAS – Girl children as young as 5 have had STI’s in native communities, what measures are being taken to avoid harmful sexual assault issues in indigenous children?

12:55POLLAR – rapporteur on second OP (OPAC) – The presence of Australia’s general here shows their commitment to the OPAC.  Complement the change of the criminal code to bring in line with OPAC.  But is the use of soldiers under 18, and unlawful recruitment illegal, and is this derogated from in war-time?  Australia’s OPAC declaration says that all recruits are told of all of their duties, but our data is otherwise: please discuss the recruitment and enlistment process, as well as the role of parental and informed consent.

The field manual of the Australian Army states that “all feasible” measures should be used to prevent “direct participation” in armed conflict.  Were children not used in the East Timor conflicts? What are “all feasible” measures, and how do you define “direct participation”? What of conscription of under 18’s in times of war in Australia?

13:00CHAIR – End of the session, all further questions from OPAC will be presented after the break.

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LLM candidate at Cornell Tech. Consultant for King & Wood Mallesons and Project Evangelist for Legalese.

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  1. Final Reflections on Australia’s review before the UNCRC « Oats and Sugar - June 13, 2012

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