This essay was written as a take-home exam for States of Emergency, Emergency Powers and Liberal Democracy at Copenhagen University, under Professor Ebrahim Afsah, which received a perfect score (12/12). The essay was in response to the following question:
Contrast the emergency provisions in the German, Japanese, and United States constitutional order. How would you classify their respective approaches, what would you consider to be the main functional and normative needs answered by the particular instruments, and how would you assess their relative strengths and weaknesses?
German, Japanese and United States emergency provisions
In response to exceptional circumstances, there are, at the most basic level, two different types of response: reacting outside of the usual legal system or acting within the existing legal system – using Ramraj’s terminology, an “accommodative” or “business as usual” (“BAU” approach). This essay will attempt to classify the German, Japanese and US approaches through the aforementioned frame, hypothesise on the normative and functional needs which these systems service and compare the strengths and weaknesses of each system both theoretically and within its own context.
A classic model of constitutional accommodation of emergency powers
The German system of emergency powers would be classified as an accommodative constitutional model. It consists of four emergency states: the Verteidigungsfall, Spannungsfall, internal emergencies and legislative emergencies. Each of these emergencies was associated with different powers. This system, further, allows for the combatting of opponents to the liberal democratic order through the idea of “Wehrhafte Demokratie”
To understand the normative role played by the emergency provisions in the German Basic Law, an analysis must include a reflection on the history that shaped it. Following a crushing defeat in the First World War, the Weimar Constitution was enacted in 1919, with strong emergency provisions in obvious response to the security threats of the time. Notably, the Weimar Constitution provided sweeping powers to the Reich President in an emergency, coupled with an extremely broad definition of an emergency sufficient to trigger such powers. This provision was abused by the Weimar republic, and eventually allowed republic to become an authoritarian regime. It is the spectre of such an abuse and domestic and international pressure following defeat in the Second World War that the current constitution was written. The Basic Law’s reflection on horrors of the Second World War are apparent, with the first thing mentioned being an affirmation of human dignity, and the first Part creating rights inviolable even when an emergency has been declared. In 1968, amongst a backdrop of growing student unrest, the Bundestag amended the constitution and created a system for emergency powers. However, this system had learned from the flaws of the Weimar emergency provisions, there were sufficient checks and balances so that it could not, easily, be abused. Thus, there are two central normative roles played by the German Basic Law. Firstly, the strong constitutional rights that are non-derogable even in times of emergency serve to reassure the German people, and the international community, that the horrors of the Second World War could not be repeated. Secondly, the allowance for emergency powers, even powers as controlled and pre-planned as those in the Basic Law, increase Germany’s sovereignty that was denied to the nation in its inception.
The specific powers, and checks on such powers can also be seen as having a functional role in protecting the German constitutional order. Much like the ancient roman dictatorship model, there were checks on the timeframe allowable for an emergency, limits to the laws that could be made during an emergency (the Basic Law could not be changed or abrogated) and the usual constitutional order must remain intact. These checks serve the functional role of restricting the possibility of abuse of the emergency system. Further, during a state of defence, if the legislature is unable to meet, they are replaced by a “Joint Committee” – a group of ministers chosen ahead of time – to take on the duties of the Bundestag and Bundesrat. Here, there is a functional threat: the inability to pass law because the legislature cannot assemble, and this is solved with a system more liberal than the Roman model: instead of the executive taking over, a smaller legislature takes on the role. Finally, the German system does allow for the use of the military and the border police internally during internal emergencies, serving the obvious functional role of a physical response to a threat. Thus, we can see that the German system has an ex ante approach to functional challenges: predicting and defining the scope of such challenges and responding with appropriately limited emergency measures.
The strength of such an ex ante approach would be threefold. Firstly, the emergency requirements may be discussed ahead of time, during peace: thus, they can be discussed in full, and prove to be more comprehensive and well debated than ex post approaches. Secondly, the explicit and controlled nature of the emergency provisions lends legitimacy to the constitution, and to the provisions. Finally, the multi-level system employed by Germany seeks to balance rights with emergency provisions, allows the populace the final say (it allows the right to resist unconstitutional practices) and minimises the extraordinary powers allowed to the different governmental organs. The weakness of the German approach comes through its rigidity: whilst it has served well so far, there may be a situation which was unaccounted for in the drafting process whereby the current system would limit the government’s ability to respond legally.
Japan and the United States
Two different approaches to the “BAU” emergency response
Both the Japanese and the United States Constitutional systems can roughly be classified as BAU approaches – neither has an explicit system of constitutional emergency powers. However, both of these systems have found their own way of dealing with emergencies. The Japanese system uses administrative guidance – “extra legal” orders given to large players in the economy. The US system uses a mix of constitutional interpretation, legislative and administrative action to allow greater flexibility during an emergency.
The BAU system satisfies an important normative goal: it expresses a commitment to legality and to the rule of law where emergency provisions could potentially jeopardise them. The Japanese constitution was written by the US after the Second World War, limiting Japan’s sovereignty by disallowing the creation of a military and by not providing for emergency powers. Unlike Germany, however, Japan made a normative decision not to try and increase sovereignty, but to wholeheartedly adopt the western constitutional system imposed on it. Thus, the decision not to amend the constitution to allow for such powers serves to underline this commitment. The US constitution was created at a time of emergency – thus, the ordinary system foreseen in the constitution is deemed to allow for appropriate responses to extraordinary threats within the constitutional system. However, some flexibility is afforded through the “War Powers” afforded to the executive. The US commitment to reacting to emergencies within the law is highlighted by the case law on the matter, with the judiciary disallowing the exercise of power outside the areas usually afforded to each organ of government. This commitment to the constitutional limitation on government power reflects a normative commitment to rights and liberties. Thus, the Japanese and US system of emergency powers highlight the importance of the rule of law within both countries.
Whilst the Japan and the US do not have constitutional systems for managing emergencies, they are both still subject to extraordinary circumstances.
In Japan, responding to the “oil shock” of the early 1970’s, the government had no constitutionally sound instrument to guarantee oil prices to maintain economic stability. Thus, the Ministry of Trade and Industry, on behalf of the government, instructed the major oil companies in Japan to ignore the relevant competition law and fix prices at an acceptable rate. The companies were protected from litigation as long as they disobeyed the competition policy under the advice of the ministry, and without looking to personal profit – the illegality of their action was precluded by the instruction. Thus, the instructions take on an extra-constitutional quasi-legal role. This instruction takes the functional role of responding to the crisis despite the normative choice of Japan to be bound strictly by its constitution’s limitations.
In the US, unlike Japan, the executive did attempt to access the limited doctrine of “war powers” in response to the economic crisis of the Great Depression, by analogising the crisis to a war. The Supreme Court stated that the organs of government, even in a time of war, could not exceed their constitutional powers, although the powers could be construed more broadly then in usual circumstances. Thus, the first of the US’s deviations from a strict BAU approach is revealed: whilst the US’s normative commitment to constitutional integrity forbid exceptional powers, they do allow increased depth of power within existing categories as a functional response to emergencies. The second deviation is through legislation: there are currently more than 250 emergency laws enacted by different legislative bodies in the US. Finally, administrative and procedural changes, alongside changing common-law requirements regarding criminal offences relating to Terrorism, highlight the third, informal and extra-constitutional response in the US to an emergency. These three techniques highlight a functional need for exceptional powers in extraordinary circumstances.
The functional need for responses to extraordinary circumstances is met within the Japanese and US iterations of the BAU system – accommodation outside of the text of the constitution.
The Japanese and US systems show their normative commitment to the supremacy and universality of their constitutions.
The Japanese system, further, works extremely well within the cultural and socioeconomic frame of Japan. Where administrative guidance can work in Japan, where the legal system and its participants look to the purpose, rather than the strict wording of government enactments, it would not work in the US or Germany, where strict formalism is the legal norm. In the Japanese context, the administrative guidance system allows a low-friction, responsive government power to respond to emergencies. However, its weakness comes from its ad hoc nature, which reduced the legitimacy of the use of exceptional power.
The strength of the US system comes from the strength of its judiciary. Whilst vague extraordinary powers would lead to an imbalance of power in many countries, the US judiciary is strong enough to enforce its limitations. Although there were a few Presidents who believed that their power extended further than they did (e.g. Nixon’s famous statement from his interview by Frost: “Well, when the president does it, that means that it is not illegal”), the judiciary has been quick to limit the actual use of such powers. Further, the flexibility has allowed a functional response to some threats, although the administrative and procedural approach applied in response to terrorism may have done more harm than good. This highlights, in effect, the limitations of the US system: the vagueness of the boundaries of legality in states of exception allow for misuse and misunderstanding of the scope of the government.
The German system of emergency provisions is a strictly constitutional system of accomodation. The Japanese and US systems are different varieties of extra-constitutionally flexible BAU systems. Whilst the German system might provide more functional certainty, and the Japanese and the US systems might provide more normative currency, each system responds well to its own environment. The German Basic Law was written under intense international pressure, but grew, with the nation, into a system which allows for emergencies, but in a strictly legalistic way. The Japanese constitution was imposed on it, and has been largely unmodified, however, the method of its application is uniquely Japanese, with “guidance” being issued formally, and, usually, being followed in a manner that benefits the nation. The US constitution was created in a time of conflict, and incorporates many powers which would allow a constitutional response to emergencies. Where the US has been faced by an emegencies, it has responded by an organ of government taking leadership and responding to the situation: usually the executive as checked by the judiciary, but, with the modern threat of terrorism, the response has been within the executive, legislature and judiciary. It is impossible to assess the strength of these systems outside of their national and historic contexts, but it seems that each system is uniquely adapted, and quite effective, within its own context.
After the jump: Footnotes and Bibliography
This essay was written as a take-home exam for States of Emergency, Emergency Powers and Liberal Democracy at Copenhagen University, under Professor Ebrahim Afsah, which received a perfect score (12/12). The essay was in response to the following question:
The discourse on emergency provisions is often framed as a trade-off between liberty and security. Do you believe this presumed dichotomy is always accurate? How does the socio- economic condition of a given state and society affect your assessment?
Emergency provisions are the departure from the ordinary constitutional or legal order in response to extraordinary circumstances. A structured system managing emergency powers (constitutional, legislative, judicial, or even merely cultural) allows for flexibility in response to a crisis. Traditionally, such a system would increase the power of one organ of government, expedite the decision-making system,or reduce civil protections to allow for an effective preventative policing system. As Ramraj points out: creating a system that allows for States of Emergency not only provides a source of legality for the extraordinary empowerment of states, but also restrains the state by limiting the application and scope of such powers. However, there has been increasing academic focus on the potential misuse of states of emergency by governments. As such, there has been a shift in analysis from Emergency powers as a tool to restore constitutional order to a dichotomy: a balancing act between liberty and security.
This essay will analyse this hypothesised dichotomy doubly. First, this essay will discuss where the idea may hold: liberal democracies, focussing on the US experience with terrorism. Secondly, this essay will discuss where the idea fails: where non-liberal polities and developing nations implement states of emergency – focussing on the Chinese and East Timorese experiences.
The United States, terrorism and the trade-off between liberty and security
Since the status quo of liberal democracy is a peaceful society where the rule of law is respected and rights are protected, a focus on preserving these rights is natural. This essay will discuss the US system, as an example, to show how rights may be infringed by states of emergency, and whether there is a direct relationship between liberty and security.
The US system of emergency provisions is quite complex. On its face, it seems that there is little scope for emergency powers in the US constitution. However, in practice, the US judiciary and legislature has allowed emergency provisions in quite a few circumstances. The cases outlined in the Chesney article outline the convergence of criminal and military legal practice. On the one hand, pressure has been used successfully to require increasing standards for military detention – arguably an increase in liberty for the captured with a potential decrease in security for the nation. On the other hand, procedural requirements for civilian, criminal prosecution have decreased. These decreases include allowing guilt by association as well as increasingly accommodating government requests for secrecy, even to the detriment of the accused. In the spirit of the American liberal ideology, it began to extend rights to military trials (that more often than not, involve non-nationals). However, in the name of security it reduces protection in the criminal system (which targets domestic crimes, usually involving nationals). Thus, here, a Liberty-Security analysis highlights an absurd result: liberty is becoming the focus of external efforts, and security the focus of internal efforts, quite the opposite of that which is expected.
Thus, the US system shows that a Liberty-Security analysis can be interesting. However, whether the two are dichotomous is not clear, since there is merely a correlation shown. More importantly, there has been no proof that the decrease in liberty allowed for in the emergency provisions has had any effect on increasing security: in reality, the decrease in legitimacy caused by the provisions outweigh the small gains in possible prosecutions caused by these provisions.
Non-Liberal Polities and Developing Democracies
China and East Timor: assumptions in the liberty-security model
This section will analyse the dichotomy hypothesis from two angles: where there is no government aspiration towards liberalism (China) and where the rule of law is still to be established (East Timor). In both situations, the dichotomy between security and liberty is not central to the population, and the relationship between the two is even more tenuous than in the US.
China has developed a different social contract to that which is standard in liberal polities. In China, under Mao, China’s fear of resorting back to the lawlessness of the early 1900’s (colonisation by Japan, civil war), the Party ruled with an iron fist, and the populace accepted that. Even where it wasn’t, any dissent was briskly dealt with, often without any resort to legal authority for such actions. Since the Cultural Revolution, and, especially in the past 30 years, a new social contract has taken the forefront. Whilst fear in the populace was the motivator before, now, economic growth has allowed the government its power. Thus, the goal of the government, with the implicit consent of the populace, is maintaining economic growth. One way it has managed to do this is by instituting rule by law. Whilst, at times, groups of people in China have shown that they value liberty, it seems that it is not the central focus of the populace, or at least of their pragmatic relationship with the current political system. Thus, if liberty is a secondary goal to economic growth, this essay argues that a Liberty-Security analysis is not the most appropriate measure for China’s use of emergency powers.
In China, a constitutional legalism was put in place primarily for the sake of legitimacy. However, this essay will argue that the system of emergency powers allowed Chinese constituents their current legal liberties – a situation whereby security and liberty were not dichotomous, but, rather, complementary. In 1976, the Chinese government uses the army, without legal basis, to establish order. In 1982, a new constitution was put forth with Emergency Provisions. Deng Xiaoping used these provisions as opposed to arbitrary rule, as part of a commitment to law. Thus, whilst during the application of the emergency provisions (such as in the response to the 1989 student protests) liberties may have been sacrificed for the good of the state – but these liberties would not exist if the government did not have the flexibility of emergency provisions to tempt it to rule by law, rather than rule arbitrarily. Even though China’s aims are not the rule of law, or liberality, there has been further reform to the Emergency Provisions system, with the “Law on Martial Law,” “Emergency Response Law” and the 2004 constitutional amendment increasing the controls on the government.  Thus, in the Chinese case, the population was only granted liberties in peace-time, as well as in emergency, because the government felt comfortable granting them because of the availability of emergency provisions.
East Timor was born in conflict, in the shadow of a hostile Indonesia and a long history of colonisation. The nation, however, had aspirations of constitutionality. The two times where a state of emergency was declared were in response to existential threats. The state declared emergency legally. However, these provisions were also created to minimise the impacts on the liberty of the populace – e.g. a curfew was put in place instead of other more draconian measures to restrict movement. Further, the emergency powers allowed constitutionally were extremely strictly controlled, in order to prevent abuse: time limitations were in place, the Human Rights Ombudsmen could not be closed and other controls were still in place. Thus, the damage to liberty in the name of security in emergency laws was to be controlled. In the US, the threats countered by emergency provisions exchange security for liberty within the state system, in a country like East Timor, the threats to the nation are existential. If the emergency provision fails, the state may fail, and any liberties or aspirations to the rule of law would be jeopardized.
China and East Timor differ significantly from the US, and any analysis of emergency provisions should reflect these differences. A simple Liberty-Security analysis would fail to reveal the complexity in China’s “legal experiment” or East Timor’s this nascent democracy. In the US, we can judge the Liberty-Security dichotomy in a simple binary system: where the emergency provisions are in force and where they aren’t. In the case of China, the analysis must be more nuanced: one must judge the balance between liberty and security on a different binary system, where the emergency powers are in force, or where the government ceases to experiment in legality and returns to a Mao-like arbitrary rule. Similarly, in East Timor, the analysis must take into the account that without the use of emergency provisions, the state may cease to exist, with any aspirations to liberal democracy, any rights gained so far and any semblance of rule of law going with it. Without the emergency provisions, rights and protections tangential to the legal order protected by the provisions would disappear: thus, the hypothesis of dichotomy fails in the case of China and East Timor.
The hypothesis of dichotomy is not universal, but may have a limited application
This essay has shown that in liberal democracies such as the US, the hypothesis of dichotomy may hold: emergency provisions do tend to increase security and, at the same time, reduce liberties. However, even in the case of the US, this analysis proved simplistic – in sacrificing liberties in the name of security, the US may have increased its security threats by losing legitimacy. Further, in the face of non-liberal polities and aspiring democracies, this dichotomy does not hold except for in the simplest of analyses. In China, without access to emergency provisions, the government may not have even aspired towards rule by law. In East Timor, the rule of law may have fallen apart were it not for emergency provisions. In each case, the liberty and security increase hand in hand, not in the inverse manner proposed by this hypothesis. This result may be explained by the normative goals of the government and the socioeconomic zeitgeist of the nation applying emergency laws, as well as the magnitude of the threat. In the US, with a normative underpinning in the rule of law, and a country rich and developed enough to be resilient, the analysis may prove an effective tool for the populace and academia to judge proposed emergency provisions – is the citizen willing to give up this liberty to protect against that security threat? In China, which lacks such a normative underpinning (instead being focussed on real and tangible increases in output) such an analysis fails to account for the fragility of the government’s attachment to law. In East Timor, a nation in a fragile socio-economic state – where there is little resilience in the rule of law, such an analysis fails to account for the loss of liberty associated with the loss of the rule of law.
The dichotomy hypothesis may be an important tool, but it is a tool with a scope limited to established liberal democracies with the rule of law and socioeconomic sophistication. The inverse relationship between liberty and security in emergency provisions may be helpful, but it is by no means universal.
After the jump: Footnotes, Bibliography and Related Articles
Being involved in Australia’s review before the United Nations Committee was definitely an eye opening experience. After studying Rights of the Child in International Law in Copenhagen, I thought I had a little bit of a grasp of what the Review would be like. In reality, though, it was much less formal, and much less based on the texts of the Convention on the Rights of the Child and the optional protocols than I thought it would be. The committee used the convention as a scaffold, but questioned the Australian delegation much more widely.
If I were to summarise the two day review, I would have to say this: Australia has a high standard of living, and of respect for rights, for most children within its borders. The main issues before the Committee were inadequate data collection (which, perhaps, hid further issues), the inequality of rights protection (especially for at-risk groups, such as children experiencing homelessness, indigenous Australians and those applying for Refugee status), and cultural or semantic issues, such as the division in Australia about the legality of corporal punishment, and the a definition of “slavery” in Australian law which does not satisfy the treaty requirements.
However, there are also areas where we should be proud of our country. Australia’s innovative approach to preventing uptake of cigarettes by children, namely the plain packaging law, whilst being disputed in the World Trade Organisation, was hailed as a radical and important step forward by the Committee on the Rights of the Child. Further, apparently our legislation regarding sex-tourism is amongst the strongest in the world, with a never-before-seen allowance for deportation for trial of Australians, or persons in Australia, for offenses committed abroad, even if Australia does not have bilateral treaties requiring such extradition.
I think the best way to imaging the road forward for Australia would be to look at Ms Mauras’ final words before the Australian delegation, where she listed questions unanswered and areas of improvement:
- Why have you kept your reservation to Article 37(b)?
- Australia’s reservation seems only to allow for an exception which is already allowed for within the words of the treaty, namely, imprisoning children and adults together where they are family
- There is a link between violence and corporal punishment, there needs to be more done, both legally and societally. What is so difficult about totally banning corporal punishment?
- There is still, in Australia, the common law defence to assault of “reasonable chastisement” – which allows for corporal punishment
- What of the over-diagnosis of children of ADHD and other issues? And the overuse of psychotropic drugs?
- The gentlemen sitting next to me, from a European NGO, came here especially to hear submissions on this issue, which was largely ignored by the delegation.
- What about the low rates of breastfeeding?
- Whilst there is a high incidence of breastfeeding initiation (due to encouragement by hospital staff) the continuation of breastfeeding is too uncommon, and should be encouraged, further, by the government and health services.
- What of alcoholism in aboriginal communities? How are the root causes being tackled? We were left with a sense that there is lack of understanding of Aboriginal issues, especially regarding “closing the gap” and self determination. And we are concerned about the Northern Territory Intervention.
- The Australian delegation showed that they understood this to be an issue, and that there are measures being taken to try and improve this, however, the committee specifically criticised the lack of rich data, and highlighted the lack of evidence of the effectiveness of the Northern Territory Intervention.
- We need more information on education, especially early childhood education, especially in aboriginal communities?
- Again, another ineffective data collection issue.
- We need more information on the grey areas in juvenile justice (10-14 and 14-18 year olds)
- What of violations by Australian Companies abroad?
- This is, perhaps, a new angle for the committee to take. A delegation from the International Commission of Jurists was hoping to hear more about this. Whilst the committee flagged this as an issue, and gave examples of breaches, mainly in mining and fisheries, of Child Rights by Australian companies abroad, the issue remained largely unanswered by government.
- We invite the Australia to sign and ratify Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure,to the CRC.
- This could be a very important optional protocol, and a central role for the new Children’s Commissioner in Australia.
Thus, whilst most children in Australia have their rights protected, there are still those whose rights are inadequately protected. Australia could, in the future, do more to improve the lives of these children, and, from the policy statements we heard from the Australian Delegation, the Government is moving in the right direction, and is willing to be a pioneer. One area Australia, with the help of the committee, could pioneer, would be to help other countries protect their rights, through conditional aid, restrictions on Australian companies abroad, and more. I left this committee with a much more thorough understanding of Child Rights, and of the issues facing children in Australia, but I also left this meeting thinking that Australia was a world leader, and should continue to be, in the field of child rights.
Mr Jean Zermatten, Chairperson of the United Nations Committee on the Rights of the Child, has a message for the youth of Australia.
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”
10:05 – GASTAUD – 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.
10:08 – KOTRANE – “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.
10:13 – AIDOO – 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?
10:20 – NORES – 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.
10:21 – HERCZOG – 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?
10:27 – LEE – What of substance abuse, especially in aboriginal communities? Are the measures “band-aids” or do they go to the causes of the abuses?
10:28 – WOOLCOTT – Re: KOTRANE’s question on the impact of the labour government, “the new policies … speak for themselves”.
10:30 – MANNING – 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.
10:34 – WOOLCOTT – 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.
10:37 – POPE – 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.
10:43 – MAURAS – 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”
10:45 – POPE – 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”.
10:48 – MAURAS – What of the length of the procedure?
10:48 – POPE – “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.
10:54 – CORDONA – 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.
10:55 – POPE – “I don’t have details to discuss it with you”.
10:55 – WOOLCOTT – Re: Poverty in Australia
10:56 – McKENZIE – 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.
11:04 – WIJEMANNE – 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?)?
11:10 – MANNING – 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.
11:13 – MAURAS – 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.
11:16 – MANNING – 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.
11:21 – AYRES – 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.
11:25 – McKENZIE – 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.
11:28 – CARDONA – 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.
11:31 – AYRES – 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.
11:34 – CHAIR – Another problem with disability is the issue of forced sterilisation, “and you promised us an answer on that”.
11:35 – WOOLCOTT – Our aid program takes disability into consideration, with integration as a goal.
11:35 – MANNING – 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.
11:38 – CHAIR – 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.
11:53 – CHAIR – Break’s over
11:53 – WOOLCOTT – Re: Health, mental health and suicide.
11:54 – AYRES – 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.
11:58 – McKENZIE – 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,
12:01 – DAVY – Re: Breastfeeding – there is a strong drive towards breastfeeding, which we can can see by the high take-up rate.
12:02 – AYRES – Re: STI’s – There are bad statistics, but there are new measures being implemented, including education and availability of health, especially reproductive health services.
12:03 – CHAIR – What about drug use?
12:05 – McKENZIE – There are measures, “but I am not sure we can provide more details about this”.
12:06 – WOOLCOTT – Education is also being used to prevent drug use, and a federal campaign has been in place since 2001.
12:07 – AYRES – 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.
12:13 – CHAIR – There has been discussion of bullying, are there conflict resolution mechanisms to reconcile peers, are there concrete proposals to remedy bullying?
12:14 – AYRES – There are many policies, including a “national day of action against bullying” and the use of school counsellors to mitigate bullying early.
12:16 – HERCZOG – 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?
12:17 – AYRES – 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.
12:19 – CHAIR – Let us shift to juvenile justice – minimum age, intermediary ages and more still have to be discussed.
12:20 – MANNING – 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.
12:25 – McKENZIE – 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.
12:26 – CHAIR – remaining questions in juvenile justice: bad conditions in specific detention centers, and to detention of juveniles alongside adults.
12:29 – MANNING – 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.
12:31 – CHAIR – 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.
12:32 – CHAIR – we close the series of questions on the CRC and move to the OP’s.
13:34 – GURÁN – 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.
12:48 – KOOMPRAPHANT – 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?
12:49 – MADI – 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?
12:51 – WIJEMANNE – 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?
12:53 – SANDBERG – 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?
12:54 – MAURAS – 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?
12:55 – POLLAR – 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?
13:00 – CHAIR – End of the session, all further questions from OPAC will be presented after the break.
Following is a quick summary about issues which I thought were most interesting in the first session on Australia’s review before the CRC, for more detail, you can check out my live-blog of the first session.
The CHAIR of the Committee on the Rights of the Child reflected on the fact that quite a lot of time was spent in the first session on preliminary, or introductory issues, especially the significance of a Federal System of Government on the ability of the Government to implement nation-wide child rights protection policies. Whilst many of us in Australia would be familiar with this system, it was, obviously, very important to explain to the committee members, who made sure to note that they weren’t allowing the Australian Delegation to use this as an “excuse”, but, merely taking it into consideration in their recommendation.
Whilst the committee discussed many issues, they did bring up a few areas of questioning which I found extremely interesting, and quite progressive. Specifically, the Australian Government‘s complicity in child rights abuses by Australian Companies acting abroad with the help of Australian Government export credit agencies (a negative glance was cast on the Mining and Fisheries industries as grave offenders). Further, the Committee’s questioning on the Government’s implementation of Anti-Terrorist legislation, and whether or not the privacy implications (alleged offenders may be disclosed to the public before trial, apparently) would affect children (i.e. would children, who are charged under this act, have their identities publicly released before trial?).
Australia’s Ambassador WOOLCOTT, and the committee, both signalled that issues relating to Indigenous Australians, and “the gap” are continuing to be a problem. Some of the issues regarding first Australians were discussed yesterday (namely, steps taken to ensure non-discrimination, a Pillar of the Convention on the Rights of the Child enshrined in Article 2 of the Convention), but there are more issues to be discussed today, such as access to Education and Health within these marginalised communities. Today, then, we can hope for some more cutting questions, and, hopefully, some good answers by the government, on this issue.
One more topic which was recurrent was the participation of Australian Children in a Human and Child’s Rights discourse. The committee stressed the importance of educating young children of their rights, and of allowing them to participate in the creation of policies that affect them.
Further, the Committee was generally pleased with Australia’s creation of an independent review body for child’s rights, the Children’s Commissioner. To ensure that the commissioner fulfilled the requirements of their previous recommendations, they analysed the role from a Paris Standards perspective, and Ambassador WOOLCOTT repeatedly reassured them that the role would be sufficiently independent.
Finally, one more issue that I found interesting was the discussion of the “Great Firewall of Australia” and the delicate balancing act it poses: it must balance the rights of children to access information with their right to protection from “cyberbullying” and other online threats. Committee Member MAURAS PERES seemed to insinuate that the firewall wasn’t the best solution and that there were other solutions that provide protection without as drastically limiting access to information. I agree with Ms MAURAS PERES’s opinion.
Hopefully, Day 2 will bring some more answers, as the review of the second half of the CRC, and the review of the Optional Protocols gets under way (surprisingly, we expect to see some flack on Australia’s use of “cadets”, with regards to the Second Optional Protocol).
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.
UPDATE – this session is now closed, tune in tomorrow for more!
18:01 – CHAIR – It is passed 6pm, so I have to adjurn, even though there are more than 6 committee members with questions, which, I guess, will be asked tomorrow.
17:48 – SANDBERG – Committee Member – Programs to deal with abuse and neglect are impressive, but are children being consulted in setting up these policies? Re: children in the justice system, are there special measures for indigenous children, or non-legal mechanisms for dispute resolution, are they affective? Information states that “crisis stage” rather than preventative measures are being focussed on.
17:47 – KOOMPRAPHANT – Committee Member – Australia has quite a good child protection system, but why is child abuse and sexual abuse increasing? What is being done to prevent this? What liability is there for abusive parents? What therapy is being offered to victims?
17:49 – CARDONNE – Comittee Member – Re: Children with disabilities – data collection is insufficiently collected, and the proposed data collection policy is insufficient, because it doesn’t create desegregated data. In 2005, the Committee recommended the stopping of forced sterilisation for non-therapeutic reasons. Australia defended it because of therapeutic reasons, but this could be an exception to the ban. Is there data on sterilisation? Unwanted pregnancy is not weighed appropriately against the physical integrity of the child. Forced sterilisation is not an appropriate measure for birth control. Does the government still reject the recommendation to ban forced sterilisation. Also, what measures are there on inclusive education v. special education for disabled children? How does the juvenile justice system allow for disabled children? You said you were concerned, but what are you doing about it?
17:45 – LEE – Re: mandatory detention of immigrant children – see roundtable – alternative detention should not be an alternative to release. Re: legal guardianship – currently, Minister of immigration determines refugee status, but he is also the legal guardian, how do you explain this conflict of interest. Re: Malaysia solution – conditions in Malaysia are not of high enough standard, applauds HC decision that it was unlawful – is the Federal government still considering repatriation as a solution. Re: indigenous, has CoAG signed the Indigenous Education Action Plan, and what of the requirement of the first language being English, rather than their first languages?
17:40 – MAURAS – Re: Standards of living (one of the articles in the convention). Despite prosperity, 12% of youths live in poverty. What is done to prevent this, especially for children and mothers in families (e.g. 18 months of paid parental leave)? Homelessness, more than it should be considering your wealth: 34 000 youth homeless – what measures are being taken to prevent homelessness? Re: consumption of “toxic substances” – what progress is there in “simple packaging” – a forward move, but being combatted, what does Australia think about the IP rights argument of the Tobacco Industry?
17:32 – WIJEMANNE – Re: Family Environment and Alternative Care – an increase in children in “out of home care” – and reports of abuse in alternative care, and bad transition after they leave alternative care. Are there preventative programs to that children don’t go into institutions? Are the institutions properly trained for care and transition?
Re: Adoptions, not too much data, but ombudsmen from Victoria showed that there was some abuse. Are there systems in place to monitor this? Re: Basic health and welfare and children with disabilities, what institutions and support systems are there? Is there appropriate access to reproductive health services (answer with reflection to forced sterilisation for disabled persons)?
Re: breastfeeding – negative data in Australia, low “exclusive breastfeeding” and this is going down. The initiation rate is high, but the continuation is low. Perhaps this is because of inappropriate marketing of baby formula?
Re: mental health: for children and young people, there are problems (especially for access to services and amount of time before services are provided), and there are increases in youth suicides.
17:31 – CHAIR – We’re stopping answers now, time for the second round of questions for tomorrow. We did spend time on preliminaries (data, constitutional law, etc.) , but they were important in framing the discussion.
17:28 – WOOLCOTT – Re: Data, it is being collected now, especially in justice and education, although data on disability is still weak.
17:25 – MAURAS – Let me insist on this matter – on the commonwealth level, you have many policies trying to rectify the separation of indigenous Australians, and “the gap”. There are statistics on “the gap” being collected, but the data collection is insufficient – “ethnic” variably isn’t used in statistics, how can you meet your commitment to your policies if your data gathering system isn’t providing nuanced enough data? Re: National Council of Indigenous Australians, who chooses the members? What effect can they have on closing the gap?
17:23 – WOOLCOTT – CoAG has the final say on coordination of children’s rights issue. At the same time, within the federal system, the PM and the Cabinet have responsibility for coordination of “whole of government” policies. Further, the minister for indigenous affairs is responsible for cross-portfolio indigenous issues.
17:22 – LEE – on the issue on discrimination against indigenous australian, there are low indicators for indigenous communities, perhaps because of discrimination in access to health and other things. E.g. food prices – these act as discriminatory practices.
17:19 – AIRES – The curriculum body has independant repsonsibility to create the curriculum. HR is a major focus of the Australian curriculum, but how it is integrated is controlled by the independent body.
17:18 – AIDOO – Re: HR education, does the new curriculum see HR as a cross-subject educational priority? “If it has been done, then we rest our case”
17:13 – MANNING – Steps have been taken to educate government service providers on non-discrimination and on education on rights to marginalised populations. Discussion of grassroots education on rights programs (e.g. via hiphop, sports, etc.). Also seeking to educate members of the government, especially on CRoC requirements. New Australian Curriculum to be put out for consultation by the end of the year – with a focus on non-discrimination.
17:11 – Australian Delegate – AHCSIA – Australian Government is looking at constitutional recognition of First Peoples, and reconciliation. There is also, now a “national congress” with equal gender representation of first peoples. Federal Government has set targets on closing the life expectancy gab by 2031, halving child mortality gap by 2013, ensuring early childhood education access for indigenous student 2013, halving gap in employment outcomes and year 12 matriculation.
17:09 – Australian delegate – Education – New curriculum tries to further involve indigenous history and culture.
17:08 – WOOLCOTT – we will now talk about non-discrimination in education and health
17:07 – WIJEMANNE – How to bring Indigenous Australians into the “main stream”
17:06 – NORES – committee member – we should discuss non-discrimination, not separation: indigenous Australians should have the same rights as Australian’s living on the coast.
17:05 – WOOLCOTT – Indigenous issues are related with health and the “so called alleged discrimination”.
17:04 – CHAIR – Health and education are to be discussed late, discrimination against indigenous Australians are what are to be discussed today.
17:04 – WOOLCOTT – Re: “closing the gap”, indegenous health and education
17:02 – MANNING – Treaties aren’t self executing, they must be implemented via legislation. Federal law does prevail, but the treaty, thus, only prevails over state legislation if legislated by the federal parliament. Re: Child’s Rights Commissioner reports, they will be publicly presented, independantly, without any government supervision.
17:01 – KOTRANE – If there is a conflict between laws, does the convention have primacy over laws of the state?
16:55 – MANNING – Commissioner has a 3.5m dollar (over 4 years) for establishment of the role of the Child’s Rights Commission. It will be an independent body under the rules of the Paris Principles. Would be part of the national HR Commission, with access to that budget: free to chose their own staff and fully independent. Re: Chair’s question, what is a piece of legislation fails the statement of compatibility? It isn’t void immediately, but it signals this to parliament, who would (using a committee) inquire into it. Parliament will take it into account when voting. What can the federal government do if a state fails to meet HR treaties Asutralia has signed? Use the External Affairs Power (s51 xxiv?) to implement treaties.
16:53 – WOOLCOTT – Re: Why we don’t have a HR charter? Conclusion of the inquiry, no, the conclusion of the government after reading the report, was to incorporate HR into legislation and policy, rather than in a charter. Common Law system also manages HR, but in a different way. In ratifying treaties, it ensures that “all its laws” are in conformity with that convention. Australia has engaged with the Paris Principles, and a long commitment to hte independence of HR commissions, you are right, they are not part of the executive and they have an independent budget, they are “strongly and fiercely independent”. The Child’s Rights Commission will be an advocate for policy coordination, not part of it.
16:52 – GASTAUD – What can the federal government do to ensure that the state conform with the CRoC?
16:51 – KOTRANE – Australia has a constitution, but it doesn’t have a charter of rights on a federal level. Only two states and the ACT have charters, but there is not Child Rights in these charters. As such, how is the role of the convention reflected in the states?
16:39 – CHAIR – Re: Federal System, how do you ensure access to all rights for all children fairly and without discrimination – with a system like this, there is an acute risk of having discrimination because of the variety of legislative bodies.
16:46 – MORAS – Don’t confuse two things: role of independent ombudsmen and coordination (i.e. the commissioner) … should be autonomous of the executive, it should have advocacy and monitoring roles. This is not to supplement the executive’s function. If it complements the coordination powers of the executive, “then I will be very worried” and it wouldn’t fulfil the role of an independent observer. Regarding coordination, we aren’t asking for a single ministry, but the coordination ability of the country to deal with a convention that is extremely broad.
16:42 – MANNING – Australian Delegation, AG‘s Office: Reiterates complexity and working of our federal system. However, there is also a federal focus on Child’s Rights. Every piece of legislation now needs a “compatibility check” against all major Human Rights treaties which Australia is a party to. Re: Establishment of the National Children’s Commissioner – Questions on the model: dodged the question on the Paris standards and talks of the aims of the children’s commissioner and how he will work with state Children’s Commissioners.
16:41 – MORAS – Committee Member: Children’s framework refers only to a part of child rights, “special protection” – what of the rest of the convention?
16:38 – McKENZIE – Australian Delegation: Many federal ministers deal with Child’s Rights, and there are often state ministers with a direct Child Rights responsibility. CoAG helps to smooth this coordination, especially the “standing committees” on specific issues, many of which deal with Child’s Rights. Many other fora, including the “Children and Family Roundtable” for coördination.
16:38 – WOOLCOTT – Re: Coördination: 9 gov’ts and a complex constitution to deal with, making coördination complex.
16:37 – WOOLCOTT – The experts from the Australian delegation will answer the UN questions. Tomorrow, Export Credit agency and Mining issues raised by Ms Perez will be adressed, rest will be adressed now.
16:35 – CHAIR – And we’re back. Australia will now reply to committee questions.
16:05 – CHAIR – Anti-terrorist laws, do they apply to children? How do they affect children? End of First Round of questions, time for a break for Australia to prepare responses.
16:03 – LEE – Committee member – Re: Right to Privacy. In WA and NT, photos of young offenders can be publicised, will this be amended? LRC recommendation on protection of privacy for children, has it been implemented, or will it be? Young people don’t want to go to doctors because of confidentiality breaches (e.g. for sexual health), where parents have been told.
16:01 – GASTAUD – committee member – Focus on coördination between ministries in the federal government, and between states. “If a Child has not been heard, would it be a breach of Judicial procedure in a case involving them?
15:56 – AIDOO – committee member – What dissemination and education on child’s rights are being made? How are they going to improve? Commend Attorney General and HR Committee websites for information. Australian, knowledgeable 12 year old, “CRC is a fantastic document … but it is just that … most people do not know about it … it isn’t taught in schools“. So, what is being done about that? “What concrete measures are you taking … to ensure the CRC are better known by children, communities and professionals? Have current education methods been evaluated?” Are there specific education programs for disadvantaged children?
15:53 – VARMAH – Vice-Chaiperson – Re: birth registration process in Aboriginal Communities. The procedures, including “fee”, are complex, and are often not followed through in Indigenous Communities. Without this, there is no “legal personality”, ability to apply for a passport or drivers licence, tax file number, etc. [13% of Aboriginal Children aren’t registered, 2.5% of all Australians unregistered]. What information is being collected on this? How can Australia make this registration free, and told of? Also, same sex, donor and children in Immigration Detention: how are birth registration issues being adressed in these areas?
15:50 – HERCZOG – committee member – No separate interviews for children in immigration. Participation of Children (Australian Youth Forum), but not enough, because they are only for mature adolescents, not for all children, who are complaining of being left out.
15:47 – MADI – committee member – One of the “most serious issue in our committee” is corporal punishment. Australia should raise the bar, and work towards banning corporal punishment. There is no legislation against this? “We are not dealing with a developing country?” … Australia’s efforts “are not enough!”.
15:46 – KOTRANE – 0.7% GDP as aid as goal, rather than 0.5%.
15:41 – Mr KOTRANE – committee member – Thanks to Australia for the exhaustive responses to UN issues raised. Overall, Australia is doing well, and it respects the rights of the child. We thank Australia for its National Apology. How did voting in the Labour Government affect Rights of the Child in Australia? Concerning ratification, Convention on … Migrant Workers: is progress being made for this ratification? UNESCO on non-discrimination in education, is progress being made towards ratification? ILO 138, 169 (Minimum Age, Indigenous Workers), Reservation on 37(c,b) – is ratification going to happen, is the reservation going to be withdrawn (we believe, in this committee, that the government reasons for the reservation are insufficient)? [UPDATE, UNESCO convention has already been ratified].
15:38 – Ms Hiranthi WIJEMANNE – Second Rapporteur – Discussing Indigenous and Torres Strait Islander children’s rights, health and wellbeing. Also, children homelessness. Also, respect for views of the child – not enough coöperation with children in making decisions. Lacking birth registration in marginalised communities (registration is required in the CRC). Corporal punishment still occurs in homes, as “reasonable chastisement”.
15:37 – Mauras Peres: Access to information – criticising the “Great Firewall of Australia“, and what this could do to prevent Australian bullying.
15:36 – Mauras Peres: Calling into question Australian grants to Australian companies acting abroad – there should be a child rights (and human rights) check for these grants.
15:30 – Mauras Peres: Calling into question the acts of Australian mining companies abroad (and fisheries). Understands that there are industry standars, but are these standards criminally enforceable in Australia – for example, for breaches of Rights of the Child abroad by Australian Companies?
15:28 – Mauras Peres: Independent monitoring – Child’s Rights Commissioner, “we are delighted about”. But are the fundamental criteria of the Paris Principles being met? 1. Is the commissioner with an independent budget? 2. Is he specialised in Child Rights? 3. Does it cover the whole of Australia?
15:26 – Mauras Peres: National frameworks, we understand, aren’t law, but advise state governments. “Do you have a holistic, comprehensive national vision for the implementation of the CRC?”. “Despite the federal systems, there are issues which must be dealt with federally”
15:22 – Mauras Peres: Committee member, Australian First Rapporteur. Understands challenges of the federal government system, but understands that the Australian Council of Governments minimises the fragmentation caused by this. National Frameworks put in place have, also, helped with this. But dialogue today is more about what there is, still, to be done. As a highly developed country, the committee seeks to help Australia improve further.
15:21 – Back to Chairperson, opening the floor.
15:19 – Ambassador Wolcott: Issues – Indigenous children in juvenile justice system; children in out of home care. Programs to prevent drug use and suicide have been put in place.
15:17 – Ambassador Wolcott: Positive changes cont’d. … “Australia takes seriously the responsibility to prevent exploitation of children“; positive changes to immigration issues, especially for unaccompanied minors – a shift to community based immigration processing.
15:11 – Ambassador Woolcott: Positive changes – National Children’s Commissioner, as recommended by the committee; National paid parental leave scheme, especially for mothers of national minimum wage during maternity leave; Australian human rights framework, with an action plan in development to nationalise Child Rights; National Framework for Protecting Australian Children, New school/preschool curriculums; ABS, 94% of most vulnerable children are now enrolled in preschool (an increase); Australian Early Development Index for young children recorded every 3 years; NSW programs to reduce homelessness for children, especially aboriginal Australians; reform to disability insurance and disability policy …
15:09 – Explaining the federal system to the Committee, perhaps to show that the states, as well as the federal government have responsibility for Child’s Rights, not the federal government alone. Discussing the NGO participation and reports – most children have a good standard of living, but there are issues, especially in indigenous and other areas.
15:08 – “Australia strongly supports engagement with the UN treaty committee framework … to improve conditions for children” – Peter WOOLCOTT.
15:06 – Australian Head of Delegation – Ambassador Peter WOOLCOTT. Presented report from 2008, and response to issues put forth by the UN. Introducing Australian delegation.
15:03 – Chairperson’s address [Chairperson Zermatten], agenda for the afternoon: first to hear from the Australian Head of Delegation, then the two Australian Rapporteurs, then a break.
14:45 – Committee private meeting just began, observers asked to leave the room.
14:30 – Just got briefed by the NGO liaison on the way the committee meeting will run.
13:55 – Settling in to the meeting room, sitting on the end, by a Danish NGO delegate who has an interest in Australia’s treatment of mental health.
13:19 – Finally got my passport, heading to Palais Wilson for the NGO meeting. A bit less than two hours to go until the review starts.
11:00 – Realise I forgot my passport at my apartment, a long schlep about the town to find it (missed the Commission’s review of Vietnam)
9:45 – Met with the Australian delegation at Australia’s permanent mission to the UN, with the ambassador and representatives from the Attorney General’s office, Immigration, Education, and more in attendance.