Archives For Children’s rights

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.

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The Committee room in Palais Wilson

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.

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Members of the Australian Child Rights Taskforce with Committee Member Mauras

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.

Jan with Mr Zermatten, Committee Chair

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)
    • ibid. 
  • 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.
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An Australian Mission to Geneva intern handing out Government policy summaries to committee members

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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!

18:01CHAIR – 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.

17:48SANDBERG – 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.

17:47KOOMPRAPHANT – 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?

17:49CARDONNE – 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?

17:45LEE – 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?

17:40MAURAS – 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?

17:32WIJEMANNE – 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.

Re: HIV and Reproductive Health – a marked increase in STIs, what access do young people have to services and education?  What programs are there to prevent teenage pregnancies?

17:31CHAIR – 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.

17:28WOOLCOTT – Re: Data, it is being collected now, especially in justice and education, although data on disability is still weak.

17:25MAURAS – 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?

17:23WOOLCOTT – 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.

17:19AIRES – 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.

17:18AIDOO – 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”

17:13MANNING – 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.

17:11Australian Delegate – AHCSIAAustralian 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.

17:09Australian delegate – Education – New curriculum tries to further involve indigenous history and culture.

17:08WOOLCOTT – we will now talk about non-discrimination in education and health

17:07WIJEMANNE – How to bring Indigenous Australians into the “main stream”

17:06NORES – committee member – we should discuss non-discrimination, not separation: indigenous Australians should have the same rights as Australian’s living on the coast.

17:05WOOLCOTT – Indigenous issues are related with health and the “so called alleged discrimination”.

17:04CHAIR – Health and education are to be discussed late, discrimination against indigenous Australians are what are to be discussed today.

17:04WOOLCOTT – Re: “closing the gap”, indegenous health and education

17:02MANNINGTreaties 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.

17:01KOTRANE – If there is a conflict between laws, does the convention have primacy over laws of the state?

16:55MANNING – 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.

16:53WOOLCOTT – 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.

16:52GASTAUD – What can the federal government do to ensure that the state conform with the CRoC?

16:51KOTRANE – 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?

16:39CHAIR – 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.

16:41MORAS – Committee Member: Children’s framework refers only to a part of child rights, “special protection” – what of the rest of the convention?

16:38McKENZIE – 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.

16:38WOOLCOTT – Re: Coördination: 9 gov’ts and a complex constitution to deal with, making coördination complex.

16:37WOOLCOTT – 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.

16:35CHAIR – And we’re back.  Australia will now reply to committee questions.

16:05CHAIRAnti-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.

16:03LEE – 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.

16:01GASTAUD – 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?

15:56AIDOO – 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?

15:50HERCZOG – 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.

15:47MADI – 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%.

15:41Mr 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].

15:38Ms 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.

15:30Mauras 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”

15:22Mauras 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.

15:11Ambassador 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.

15:06Australian Head of Delegation – Ambassador Peter WOOLCOTT.   Presented report from 2008, and response to issues put forth by the UN.  Introducing Australian delegation.

15:03Chairperson’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.

The committee room

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.

13:30 – A Guinness World Record for the UN Declaration of Human Rights being the most translated document in the world

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.

13:00 – Waiting to pick up my passport

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.