President speech: How human rights can promote the wellbeing of children in Australia
Commission – General
How human rights can promote the wellbeing of children in
Australia
The Hon Catherine Branson
QC
ARACY Conference, 2 September 2009
I would like to begin by acknowledging the traditional owners of the land on
which we meet, the Wurundjeri People of the Kulin Nation, and pay my respects to
their elders past and present.
20th anniversary of Convention on the Rights of the
Child
This year, as we all know, the international community celebrates the
twentieth anniversary of the adoption by the United Nations General Assembly of
the Convention on the Rights of the Child. The Committee on the Rights of the
Child and the Office of the United Nations High Commissioner for Human Rights
are marking this anniversary with a celebration, the theme of which will be
“Dignity, Development and Dialogue”.
In discussing children’s rights today, I am going to borrow the themes
of development and dialogue as these seem to be the two main challenges in this
area which Australia faces now and will face into the future. Children’s
right to development is far from being realised to the maximum extent possible.
Additionally, I believe we lack adequate institutional mechanisms for
encouraging effective participation by children in the decisions that affect
them.
The international comparisons contained in the ARACY Report Card on the
Wellbeing of Young Australians make it plain that we should aspire to do much
better so far as children’s rights are concerned. This year’s Report
Card reveals that Australia ranks 20th out of 27 OECD nations for infant
mortality, with the infant mortality rate for Indigenous Australians more than
double the non-Indigenous rate. Substantiated incidents of child abuse and
neglect have more than doubled over the past ten years. Our statutory child
protection systems are unable to
cope.[1] These, as I hope to explain,
are human rights issues.
On 30 April 2009, the Council of Australian Governments (COAG) endorsed the
first National Framework for Protecting
Australia’s Children. The Framework recognises that our approach needs
to change: ‘Australia needs to move from seeing ‘protecting
children’ merely as a response to abuse and neglect to one of promoting
the safety and wellbeing of
children.’[2]
I could not agree more.
We, as a nation, must take positive measures to promote the safety and
wellbeing of our children. We are far from doing all that we can in this area.
As Professor Fiona Stanley has so accurately observed, we must wake up;
‘the future health and well-being of this country depends on all of us
taking this very seriously’.
So, how can we do better? Today I wish to make the case that it is through a
child rights framework that we can best improve outcomes for young Australians.
Human rights provide a clear and accountable framework for promoting child
wellbeing. Human rights outline the minimum standards necessary to ensure the
wellbeing of children – the right to an adequate standard of living, the
right to health care, the right to education, the right to family life, the
right to protection from violence, and the right to participate in one’s
culture. Indeed, all of the indicators in the ARACY Report Card are associated
with a protected human right. This illustrates the very close relationship
between human rights and child wellbeing, and the breadth of coverage of
wellbeing themes that human rights have to offer.
Children’s rights are not simply civil and political but also economic,
social and cultural. Looking at the wellbeing of children through a human rights
framework involves a departure from the traditional welfare model of imposed
solutions; instead, a human rights framework aims to empower and engage
children, their families and communities, in the creation of solutions for them.
A human rights framework recognises not simply a need for, but also an entitlement to, a fair life chance for all Australian children. For this
to be achieved, Australia’s approach to improving the wellbeing of
children needs to be interdisciplinary and requires multi-sectoral
coordination.[3]
A child-rights-based approach to the well-being of children is underpinned by
four paramount principles, which are enshrined in the Convention. Though the
language of the Convention may not be familiar to everyone, I suspect that the
ideas behind the Articles of the Convention are like ‘old friends’
to most people in this audience. These principles are:
- Non-discrimination in the applicability of children’s rights (Article 2) – Every child should be able to enjoy their rights free of
discrimination. This applies to every child ‘irrespective of the
child’s or his or her parent’s or legal guardian’s race,
colour, sex, language, religion, political or other opinion, national, ethnic or
social origin, property, disability, birth or other
status’.[4] - The primacy of the consideration of the child’s best interests (Article 4) – When the public authorities make decisions which affect
children, the best interests of children must be a primary consideration. This
principle applies to decisions by courts of law, administrative authorities,
legislative bodies and both public and private social-welfare
institutions.[5] - The child’s right to survival and development (Article 6(1))
– The right to survival and development is an integral aspect of the right
to life, and should be ensured ‘to the maximum extent possible’. In
this context, ‘development’ is to be interpreted in a broad sense,
referring to not only physical health but also mental, emotional, cognitive,
social and cultural development. - The child’s right to participation in decision-making (Article
12) – Children should be free to have opinions on all matters affecting
them, and those opinions should be given due weight ‘in accordance with
the age and maturity of the
child’.[6] In other words,
children have the right to be heard and to have their views taken seriously,
including in any judicial or administrative proceedings affecting
them.
These principles should inform any approach Australia takes to
protecting the best interests of our children. These are, I suggest, the very
principles that, once implemented, will promote children’s wellbeing.
It is interesting to note that in a recent study which asked children and
young people across New South Wales what well-being means to
them,[7] children themselves
identified themes that they saw as fundamental to their idea of well-being.
These included:
- having ‘agency’, such as involvement in decision-making
- feeling safe
- having a sense of self and belonging
- and having enough material and economic resources to provide them with
opportunities for cultural life and social interaction.
You would
be right in thinking that these sound very like a child’s rights to
development and participation.
To explore more fully how a human rights approach can promote the wellbeing
of children, I will now discuss the themes of ‘development’ and
‘dialogue’ in greater detail.
Development
Let me turn first to development.
As a signatory to the Convention on the Rights of the Child, Australia has a
responsibility to provide the services necessary for children’s survival
and physical, mental, spiritual and social
development.[8]
‘Development’ in human rights terms is a very broad concept.
Article 6 of the CRC – the child’s right to life and to maximum
survival and development – has been identified by the Committee on the
Rights of the Child as a general principle relevant to the implementation of the
whole Convention.[9] But I would like
to focus on two specific issues which are particularly topical in Australia
– the Indigenous child’s right to development, and the need for
human rights education in Australia.
a) The Indigenous child’s right to development
The notion of ‘development’ is not simply about the preparation
of the child for adulthood; it is about providing optimal conditions for the
child’s life now.[10] These
optimal conditions necessarily include the fulfillment of a child’s rights
to healthcare, education and freedom from violence – all of which are
denied to many children in Australia – but Indigenous children in
particular.
The latest Productivity Commission report on Indigenous
disadvantage[11] reveals that we
have made little progress in closing the gap between Indigenous and
non-Indigenous Australians in key areas like health and education. Rates of ear
disease and hearing problems for Indigenous children are three times those of
non-Indigenous children.[12] This
impacts not only on their health but also on their education. It seems that
deafness in some Indigenous children is being confused with intellectual
impairment.[13] Another difficulty
affecting educational outcomes for some Indigenous children is that of limited
fluency in the English language. This is not an easy issue to address. The
experts don’t all agree about the wisdom of mandating the use of English
in schools. There is evidence that that eliminating bilingual education does not
support good learning outcomes and that bilingual students do better in
English reading literacy than students from English language only schools in
their regions.[14] There is also
evidence that fluency in more than one language has flow-on benefits for
intellectual development
generally.[15]
Turning to child abuse, it is tragic that an Indigenous child is six times
more likely to be involved with the statutory child protection system than a
non-Indigenous child.[16] We should
recognise to the fullest extent possible the right of all children to maintain a
connection to their family, community and culture. A human rights analysis
indicates that while the protection and wellbeing of children must remain the
over-riding concern, early intervention and support for families to enable them
to remain together where possible should be a key priority. [17] Statutory intervention should be a
last resort.
Overcoming Indigenous disadvantage, and thereby ensuring Indigenous
children’s right to development, is one of Australia’s greatest and
most pressing challenges.
The key to meeting the challenge is, I suggest, a human rights-based action
plan, the essential elements of which are: Indigenous participation, support for
Indigenous community initiatives and networks, human rights education,
government action, and robust accountability and
monitoring.[18] The United Nations Declaration on the Rights of Indigenous Peoples provides a comprehensive
framework for Indigenous rights protection. The Australian Government has
accepted that it is bound to consider the Declaration in all its dealings
with Indigenous Australians.[19]
Support for Indigenous community initiatives is one element of a human
rights-based action plan that I would like to see receive greater attention than
it currently does. As the Aboriginal and Torres Strait Islander Social Justice
Commissioner has observed, ‘The most successful programs are those that
are developed by and for the community, as they promote self determination and
respond to individual community
needs.’[20] This is the
experience of other countries like Canada and South Africa as well. Already,
there are Indigenous community-led initiatives to combat family violence and
abuse. For example, the ‘Safe Families’ program run by Tangentyere
Council in Alice Springs provides culturally appropriate interventions and
accommodation for children at risk of, or escaping from, family violence; it
provides a ‘holistic, community centred Indigenous response to child
abuse’[21] and keeps the
children out of the child protection system. Initiatives such as this work
because they empower and engage people to create their own solution. They
promote the wellbeing of Indigenous children because they seek to maintain the
children’s connection with family, community and culture. In short, it is
an example of a human rights-based approach to the wellbeing of children.
b) Human rights education
The other important issue relating to development is education, including
human rights education. As the recent National Consultation on Human Rights has
revealed, Australia is in pressing need of a national human rights education
strategy. No child’s development is complete without an education in both
their human rights and their corresponding responsibilities to respect the
rights of others. Human rights education should be included in the curricula of
all primary and secondary schools in every Australian state and territory,
perhaps as part of a broader civics education program. During workshops
conducted by the Australian Human Rights Commission to promote involvement in
the National Human Rights Consultation, children and young people themselves
identified human rights education as a key measure to better protection of human
rights in Australia.
Dialogue
Let me turn now to Dialogue. By dialogue I mean the effective exchange of
ideas between young people and decision-makers. As I mentioned earlier, Article
12 of the Convention recognises the right of all children to express their views
and have these views taken into account in all matters affecting
them.[22]
For this reason, dialogue is important to every article of the Convention
and, in turn, every aspect of ensuring a child’s wellbeing. Dialogue is
vital to ascertaining what is in a child’s best interests and it is
necessary for the realisation of children’s right to development. Indeed,
unless the views of young people are given due weight in accordance with their
age and maturity they are not being treated as rights-holders in the true
sense.
If I were asked to identify just one area where it would be useful for young
people to be heard, I would draw attention to technology. It is plain that young
people use and understand technology quite differently from most older
Australians. This is an exceedingly important social phenomenon. It affects what
and how young people learn, how they socialise, how they communicate, how they
find their amusement, how their perceptions of the world are formed. In human
rights terms, it affects their well-being and their development. It is also, I
suggest, critical to the exercise of their right to freedom of speech and their
right to freedom of assembly. How Australia understands, talks about and
regulates technology, including the use of the internet, is thus a matter of
vital importance to young people. They have a right to have their views heard on
this issue.
As a nation, it seems to me, we still have some way to go in order to realise
this right of the child to be heard. We are yet to put mechanisms in place to
institutionalise child participation at all levels and in all areas of public
decision-making.
The 1997 Report by the Australian Law Reform Commission and HREOC, Seen
and Heard, identified ‘a consistent failure’ by legal
institutions systematically to include and consult with and listen to young
people about matters that directly affected
them.[23] Many of the report’s
recommendations have not been
adopted;[24] if they had, the recent
ARACY Report Card on the Well Being of Young Australians might have been
different. For instance, it was recommended that HREOC be resourced to establish
a specialist children's rights unit to undertake broad, national systemic
advocacy on behalf of children. This has not occurred.
The Seen and Heard report also considered that there was a need for
systemic advocacy in relation to child and youth
affairs.[25] A systemic advocacy
role could be fulfilled by a Commissioner for Children and Young People.
COAG’s National Framework for Protecting Australia’s Children has flagged that the Government is considering the possibility of a national
Children’s Commissioner.
The Australian Human Rights Commission supports the creation of an office of
Australian Children’s Commissioner and maintains that an Australian
Children’s Commissioner should have functions grounded in
Australia’s extremely broad human rights obligations to children and young
people.
There have been efforts at the national, state and local levels to involve
children and young people in policy-making. However, there is a perception that
these have been largely tokenistic.
A survey of young people conducted by the Victorian Equal Opportunity and
Human Rights Commission in 2008 found young people were generally dissatisfied
with their experiences of participating in government processes. Many felt that
they were ‘ticking a “youth participation” box’ rather
than being active agents of change because often the agendas on which their
views were sought had already been
pre-determined.[26]
This view was also reiterated by some of the young people who participated in
workshops run by the Australian Human Rights Commission to encourage involvement
in the National Human Rights Consultation. We were told that even when young
people are asked what they think, adults do not seem to take their views into
account when making decisions affecting them. Should this be correct, this would
amount to a failure to give their views due weight, as required under article 12
of the CRC
It is necessary to recognise, however, some positive examples of youth
participation.
A recent example of ad hoc youth participation was the Youth 2020 Summit,
held in April 2008 in the lead-up to the Australia 2020 Summit. One hundred
diverse young people, aged 15 to 24 years, from around Australia, put their
heads together and developed ideas and proposals for the future of our country.
However, we need more than ad hoc measures. As the Committee on the Rights of
the Child has emphasised, we need to provide ongoing, systemic opportunities for
young people to contribute to policy on issues that affect them. Specifically,
the Committee has recommended the establishment of ‘child-focused and
child-sensitive bodies, structures and activities – children’s
rights units at the heart of Government, ministers for children,
inter-ministerial committees on children, parliamentary committees, child impact
analysis, children’s budgets and “state of children’s
rights” reports, NGO coalitions on children’s rights,
children’s ombudspersons and children’s rights commissioners and so
on.’[27] Some of these
structures and activities are already in place, particularly at the state level.
At the federal level, we are beginning to witness an emergence of more of these
measures, including more efforts to implement participative mechanisms.
For example, the Office for Youth within the Department of Education,
Employment and Workplace Relations, establishment in September 2008, aims to
ensure coordination of youth policy across the whole of government and ‘to
create and promote opportunities for the engagement and greater participation of
young people in Australian
society.’[28] This initiative
was long overdue.[29] I note also
that in October of last year, the Government launched the Australian Youth
Forum, ‘to engage young people and the youth sector in ongoing public
discussion and to facilitate their input into policy and decision making’
about issues affecting them.[30]
Equally important is data collection and monitoring. To this end, the Office
for Youth planned to produce in the first year of its operation (which,
incidentally, ends this month) a State of Australia’s Young People Report,
to capture how young Australians are faring.
Though it is early days and we are yet to see how effective these measures
will be, these are all positive developments. To borrow the words of the
Committee on the Rights of the Child:
their emergence at the least indicates a change in the perception of the
child’s place in society, a willingness to give higher political priority
to children and an increasing sensitivity to the impact of governance on
children and their human rights.[31]
Conclusion
Let us continue to give higher political priority to children by adopting a
comprehensive child-rights-based policy framework which implements
Australia’s obligations under the Convention on the Rights of the Child,
and provides a blueprint for the promotion of children’s wellbeing. There
is no higher priority than our children, and I believe that it is by respecting
their human rights that we will succeed in achieving their best interests and
improving their wellbeing.
[1] Council of Australian
Governments (COAG), National Framework for Protecting Australia’s
Children (2009), pp 5-6. At http://www.coag.gov.au/coag_meeting_outcomes/2009-04-30/docs/child_protection_framework.pdf (viewed 10 August 2009).
[2] COAG,
above, p 7.
[3] Child Rights
Coalition, Submission to the National Human Rights Consultation, 15 June
2009, p 5.
[4] Convention on the
Rights of the Child, Art 2.
[5] United Nations High Commissioner for Human Rights, Fact Sheet No. 10 (Rev.1),
The Rights of the Child (1997), p 2. At http://www.ohchr.org/Documents/Publications/FactSheet10rev.1en.pdf (viewed 10 August 2009).
[6] Convention on the Rights of the Child, Art
6.
[7] NSW Commission for Children
& Young People and Social Justice and Social Change Research Centre, Ask
the Children: Well-being (2007). At http://www.kids.nsw.gov.au/uploads/documents/ATC_wellbeing.pdf (viewed 1 September 2009).
[8] Convention on the Rights of the Child, Arts 6,
27.
[9] UNICEF, Implementation
Handbook for the Convention on the Rights of the Child (2002), p
106.
[10] UNICEF, Implementation Handbook for the Convention on the Rights of the Child (2002), p 103.
[11] Productivity
Commission, Overcoming Indigenous Disadvantage: Key Indicators 2009 (2009). At http://www.pc.gov.au/gsp/reports/indigenous/keyindicators2009 (viewed 13 August 2009).
[12] Prime Minister of Australia, ‘$58.3m boost for Indigenous eye and ear
health’, Media Release, 26 February
2009.
[13] Judith Gould, speech
pathologist, cited in J. Ferrari, ‘Diagnosis wrong for students’ in The Australian, 17 August
2009.
[14] ‘Calma backs
bilingual education in NT’, The Age, 17 November 2008. At http://news.theage.com.au/national/calma-backs-bilingual-education-in-nt-20081117-6990.html (viewed 26 August 2009).
[15] Talani Research Institute, Two languages spoken here. At: www.raisingchildren.net.au/articles/two_languages_spoken_here.html (viewed 26 August 2009).
[16] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007 (2007), p 116. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/pdf/sjr_2007.pdf (viewed 12 August 2009).
[17] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007 (2007), p 116. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/pdf/sjr_2007.pdf (viewed 12 August 2009).
[18] Aboriginal and Torres Strait Islander Social Justice Commissioner, Ending
family violence and abuse in Aboriginal and Torres Strait Islander communities:
Key issues (2006), pp
5-6.
[19] Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2008 (2008), p 30. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport08/downloads/SJR_2008_full.pdf (viewed 12 August 2009).
[20] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007 (2007), p 189. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/pdf/sjr_2007.pdf (viewed 12 August 2009).
[21] Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2007 (2007), p 133. At http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/pdf/sjr_2007.pdf (viewed 12 August 2009).
[22] Convention on the Rights of the Child, Art
12.
[23] Human Rights and Equal
Opportunity Commission and Australian Law Reform Commission, Seen and Heard:
priority for children in legal processes, Report of the National Inquiry
into Children and the Legal Process (1997), ALRC 84, para 1.30.
[24] J McDougall, T Overall and
P Henley, ‘Seen and Heard revisited’ (2008) Issue 92 Reform 9, 10.
[25] Human Rights and
Equal Opportunity Commission and the Australian Law Reform Commission, Seen
and Heard: priority for children in legal processes, Report of the National
Inquiry into Children and the Legal Process (1997), ALRC 84, para
7.2.
[26] Youthlaw, Submission to
the National Human Rights Consultation Committee, 15 June 2009, pp
33-34.
[27] Committee on the
Rights of the Child, General Comment No. 5 – General measures of
implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44,
para. 6) (2003) UN Doc CRC/GC/2003/5, para 9. At http://www.unhcr.org/refworld/category,LEGAL,CRC,,,4538834f11,0.html (viewed 10 August 2009).
[28] Department of Prime Minister and Cabinet, Commonwealth of Australia, Responding to the Australia 2020 Summit (2009), p 120. At http://www.australia2020.gov.au/docs/government_response/2020_summit_response_full.pdf (viewed 7 August 2009).
[29] One
of the recommendations of the Seen and Heard report of 1997 was that an
Office for Children be established (albeit within the Department of Prime
Minister and Cabinet): Human Rights and Equal Opportunity Commission and
Australian Law Reform Commission, Seen and Heard: priority for children in
legal processes, Report of the National Inquiry into Children and the Legal
Process (1997), ALRC 84, Appendix D, para
3.
[30] Department of Prime
Minister and Cabinet, Commonwealth of Australia, Responding to the Australia
2020 Summit (2009), pp 120, 136. At http://www.australia2020.gov.au/docs/government_response/2020_summit_response_full.pdf (viewed 7 August 2009).
[31] Committee on the Rights of the Child, General Comment No. 5 – General
measures of implementation of the Convention on the Rights of the Child (arts.
4, 42 and 44, para. 6) (2003) UN Doc CRC/GC/2003/5, para 10. At http://www.unhcr.org/refworld/category,LEGAL,CRC,,,4538834f11,0.html (viewed 10 August 2009).