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A fair chance for every child: The right to survival and
development

The Honourable Catherine
Branson QC

11 August 2010

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1 Introduction

First, may I acknowledge the traditional owners of the land on which we meet,
the Ngunnawal people, and pay my respects to their elders, both past and
present.

I am honoured to have been invited by Save the Children Australia to give the
2010 Rights of the Child lecture. Save the Children provides an inspiration for
all who work to promote and protect children’s rights in Australia. For
nearly a century Save the Children has worked to create a world in which every
child has a healthy and safe childhood, the opportunity to learn and a voice to
speak for themselves.

This world will be realised if we work together to ensure that
children’s fundamental human rights are respected, promoted and protected.

Children have a very special place in our society because of their
vulnerability and their special needs for protection. We are acutely aware of
what children must be protected from: for example from neglect and from abuse.
However realising a world in which every child reaches their full potential
requires more than ensuring these kinds of basic protections. It requires
concrete actions to ensure that we live up to our positive obligation to ensure
respect for every child’s fundamental human rights.

Too often we fail in our responsibilities toward vulnerable children and
young people in Australia. Homeless young people are one group who bear the
burden of our inaction. I find it shocking that 12% of Australia’s
homeless people are under 12 years of
age.^[1] And that in Australia, 22 000
young people between the ages of 12 and 18, almost enough to fill the seats of
Canberra Stadium, will be homeless tonight. ^[2]

These figures are simply not acceptable in a wealthy country such as ours. We
have a responsibility to these children, and to others, to ask what actions we
must take in order to give every child in Australia the best possible chance in
life.

The fact remains that children’s rights continue to be inadequately
protected in Australia. Twenty years ago, the Australian Government signed and
ratified the United Nations Convention on the Rights of the Child. While much
has been achieved in the protection and promotion of children’s rights
since 1990, there are still many children in Australia who do not fully enjoy
their human rights. And children in Australia do not have a national advocate
promoting their interests.

This evening, I will talk to you about three things. First, I will discuss
the right to survival and development. I will explain why this right, a guiding
principle of the Convention on the Rights of the Child, is one of the most
fundamental children’s rights. Second, I will illustrate how a
rights-based approach is critical to creating an environment in which children
reach their full potential. Finally, I will speak about the important role a
national Children’s Commissioner could play in securing the best possible
chance for all children in Australia.

2 Protecting the right to survival and development in
Australia

Australia has promised the international community that it will respect,
protect and promote the rights of children through its voluntary commitment to
uphold the rights set out in the Convention on the Rights of the Child.

This includes the obligation to take all legislative, administrative and
other measures to protect and ensure children’s rights and to develop
policies and take action in the best interests of the
child.^[3]

Our nation has promised to ensure the maximum survival and development of
every child in Australia. This guiding principle is set out in article 6 of the
Convention. The right to survival and development permeates the entire
Convention. It is the foundation of all other rights. Realisation of this right
is also a fundamental outcome of successful human rights protection. When the
economic, social, cultural, political and civil rights of every child are
adequately protected, children will also realise the right to survival and
development.

The idea that we have a responsibility to enable children to reach their full
potential is not novel. The very first article of the very first Declaration on
the Rights of the Child, drafted by Eglantyne Jebb (founder of Save the
Children) and endorsed by the League of Nations in 1924, states that:

mankind owes to the child the best that it has to give ... [including] that
... the child must be given the means needed for its normal development, both
materially and spiritually^[4].

In the drafting of the modern Convention, there was debate about the wording
of article 6 and about the merits of including in the Convention both a right to
life and a right to survival and development. The delegates eventually agreed
that there was a place for both. The right to life is a negative right; it
requires non-interference and imposes an obligation to refrain from causing
harm. In contrast, the right to survival and development captures the positive obligations of a State to create and promote an environment
conducive to the maximum development of the
child.^[5]

There is plenty of evidence to support the view that the right to survival
and development is one of the most fundamental of all the rights of the child.
However, the literature on the precise content of that right is relatively
sparse. A statement which I feel best captures all that this right entails is
one by Manfred Nowak, United Nations Special Rapporteur on Torture. According to
Professor Nowak, the right to survival and development encompasses the
obligation of the State to create an environment in which all children:

grow up in a healthy and protected manner, free from fear and want, and to
develop their personality, talents and mental and physical abilities to their
fullest potential consistent with their evolving
capacities.^[6]

Thus, our obligations in meeting the right to healthy development demand that
we create an optimal experience of childhood, an environment that builds
resilience and conditions that nurture a positive future for each child.

Australia was one of the first nations to sign and ratify the CRC, almost
twenty years ago to the day. It is fitting this evening that we remind ourselves
of our ongoing responsibility to protect and promote the right to survival and
development in Australia.

In many areas we can be proud of what we have achieved. Most children in
Australia have what they need for healthy development, to thrive and to
flourish. We have universal access to free primary and secondary education,
mostly of a high standard. Most children in Australia have access to good
primary health care. The majority of children in Australia enjoy a relatively
high standard of living.

However, in too many areas, we still have a long way to go to adequately
protect the fundamental human right to survival and development. Two groups of
children whose enjoyment of this right is particularly vulnerable are Indigenous
children and children experiencing mental ill-health. The experience of these
children has been of concern to the Australian Human Rights Commission for many
years.

3 Indigenous children in Australia and the right to
survival and development

It is tragic that, today, Indigenous children are six times more likely than
non-Indigenous children to be the victim of substantial abuse or neglect and
eight times more likely to be involved with the statutory child protection
system than non-Indigenous children.^[7]

It is clear that the failure to meet Indigenous children’s rights to
healthcare, to education and to freedom from violence, among others, severely
impairs our ability to adequately fulfil their right to healthy development.

Overcoming Indigenous disadvantage, and thereby ensuring Indigenous
children’s right to development, is one of Australia’s greatest and
most pressing challenges.

We as adults have a responsibility to do all that we can to prepare children
for their lives as productive citizens in the future. There is no denying that a
right to development is forward looking. However, it is also about creating
optimal conditions for each individual’s experience of childhood. In that
sense it is as much about the child’s life now as it is about the
opportunities the child will have in adulthood.

I will illustrate this point with the example of hearing loss and the
inadequate access to hearing health care for Indigenous children.

Rates of ear disease and hearing problems for Indigenous children are three
times those of non-Indigenous
children.^[8] This has been described
by the World Health Organisation as a ‘massive public health problem that
requires urgent
attention’.^[9]

When hearing loss occurs in the first few years of life, it has major
implications on overall health, speech and language development, and learning.
This goes some way to explaining why Indigenous children are half as likely as
non-Indigenous children to complete Year
12.^[10] There is also evidence to
suggest a marked correlation between hearing loss, reduced educational
attainment and higher rates of criminal
activity.^[11]

The severe impact of hearing loss on both education and family life is
evident in the comments by one mother. Once her daughter’s hearing loss
was finally diagnosed she explained:

it clicked. The patterns of behaviour and the withdrawal ... It was a relief
to know. I [earlier] felt depressed and frustrated because I did not know what
was going on. I was blaming myself. I thought it was my fault and I was a bad
mother. I felt like I was letting her down... The behaviour problem came at
school. They never suggested anything and it was depressing not knowing what to
do... I was growling at her and yelling. I was pushing her away because I
didn’t know how to deal with
it...^[12]

It is clear that hearing loss can have a serious negative impact on the
experience of childhood: on a child’s relationships, family and school
life. But ear disease, hearing loss and inadequate ear health care services also
affect the prospects for a child’s future. For the large number of
Indigenous children who suffer from ear disease during their childhood years the
right to development is seriously compromised.

The Australian Government has a positive obligation to respond to this
situation – to do everything that it can to ensure the healthy development
of this vulnerable group of children.

A recent Senate report stated that hearing impairment and inadequate
responses to hearing impairment are limiting the life chances of new generations
of Indigenous children, from education to employment and cultural life, and in
interactions with the justice system. The Commission has urged the Australian
Government to give prompt and full consideration to the recommendations of this
important inquiry.

The ‘Close the Gap’ campaign, which takes a rights-based approach
to health, demonstrates the potential for realising the right to survival and
development for Indigenous children in Australia.

Through Close the Gap, Indigenous and non-Indigenous health bodies, NGOs and
human rights organisations work together to secure the commitment of government
to closing the gap in health and life expectancy between Indigenous and
non-Indigenous Australians within a generation.

Close the Gap works through a human rights framework and views healthy
development as a holistic concept. The Close the Gap campaign is an example of
a coalition of government and non-government actors working together to tackle
systemic inequalities and breaches of fundamental human rights.

It is my fervent hope that our government continues to make concrete and
practical commitments to improving Indigenous health. Australia has an
obligation to do whatever it can to ensure the healthy development of Indigenous
children – we need to respond to this public health crisis, and to do
whatever we can to reduce the extent of hearing loss amongst Indigenous children
in the future.

4 Children experiencing mental ill health

The government also has a pressing obligation to ensure the right to survival
and development for children in Australia experiencing mental ill-health.

There is a fundamental link between mental health and healthy development.
The World Health Organisation defines mental health as ‘a state of
well-being in which every individual realises his or her own potential, can cope
with the normal stresses of life, can work productively and fruitfully, and is
able to make a contribution to her or his
community’.^[13]

Recent Australian research suggests that one in seven children of primary
school age has a mental health problem, with anxiety, depression, hyperactivity
and aggression among the most
common.^[14] Children with mental
ill-health have reduced capacity to engage with schooling, to form and maintain
positive relationships and have poorer long-term outcomes than those in good
mental health.

In 2005, the Australian Human Rights Commission partnered with the Mental
Health Council of Australia to report on the state of mental health care in
Australia. The report exposed a crumbling mental health care system.

In one letter to the Inquiry, a mother wrote about the death of her son. She
wrote:

His suicide was tragic; made all the more so because it was preventable, we
believe, but for the inadequacy of the public mental health system. He died just
two weeks after his first suicide attempt, eight days after his discharge from
the hospital psychiatric unit, two days after being refused admission to the
psychiatric unit following a second suicide attempt, and within hours of contact
with the mental health crisis team. On the day of his death, he had contact with
the mental health system no less than three times.

To adequately protect the right to development in this context requires
consideration of both effective prevention of mental ill-health as well as the
provision of adequate services to support those experiencing mental ill-health.
The impact of mental health problems in children is articulated by John Mendoza,
the former Chair of the National Advisory Council on Mental Health:

Vast numbers of children in Australia that start to develop learning
difficulties, behavioural problems, mental health problems have no access to
care at all. And what those problems develop into is far more significant and
more complicated later in
life.^[15]

The adequacy of funding for mental health services, particularly for those
available to children and young people, has been the source of significant
debate recently.

I won’t add to that debate today.

However, I will make two observations. First, health and mental health are
one of those difficult areas where service provision is complicated by
Australia’s federal system of government. However, Australia’s human
rights obligations are federal ones – it is the Australian Government that
must ensure that children’s rights are adequately protected.

Second, the provision of measures to address mental ill-health in our
children and young people is critical to their survival and development. And
this must include preventive measures, as well as targeted mental health
services. This issue should be maintained as a matter of urgent priority for
Australia.

If Australia is to meet our obligation to ensure the right to development to
the maximum extent possible, we must invest more in the mental health of all
children in Australia.

5 What is a rights-based approach and how does it
help children?

As I have demonstrated, there is an urgent and serious need in Australia to
take positive measures to promote the well-being of our children: particularly
of those children who are the most disadvantaged.

The Australian Human Rights Commission believes that the best way to ensure
respect for and commitment to the healthy development of all children in
Australia is through a rights-based approach.

Children’s rights are not abstract or aspirational. They are grounded
firmly in the basic human needs for life, growth and
development.^[16] Quite aside from
its ethical and moral force, the Convention on the Rights of the Child is a
legal document which sets out standards, and assigns responsibility for ensuring
these standards are met.

I would like to use the example of young people experiencing homelessness to
explain the benefits of a rights-based approach to children’s healthy
development.

I mentioned earlier the scale of the problem of child and youth homelessness.
It is shameful that 12-18 year olds represent the largest group of people
experiencing homelessness in Australia. Children have a particularly traumatic
experience of homelessness. It disrupts schooling, family life, healthcare,
nutrition, social networks and feelings of confidence and stability. An
experience of homelessness as a child can also play into a cycle of
intergenerational disadvantage. Children experiencing homelessness miss out on
the opportunities that others have, making them more likely to experience
homelessness as an adult.^[17]

A human rights approach recognises that homelessness is a result of
disempowerment and exclusion. It is often the consequence of structural
disadvantage. Young people experiencing homelessness are individuals who have
the same basic human rights as all other people in Australia. A human rights
framework recognises not simply a need for, but also an entitlement to,
the best possible life chance for all children in Australia.

A rights-based approach should focus on the prevention of homelessness. It is
well accepted that there are many causes of youth homelessness – violence
and family breakdown, mental ill-health and substance abuse, a lack of
affordable housing and leaving the child protection system, to name just some of
the more common causes.^[18] The fact
that there are increasing numbers of children
‘graduating’^[19] from
the child protection system into homelessness indicates a fundamental failure of
this system to provide children and emerging adults with the life skills they
need to cope and thrive as independent adults.

Each of those causal factors may, in itself, involve a breach of
children’s rights: for example, of the right to freedom from violence; the
right to the highest attainable standard of health care; the right to housing,
the right to family. A rights-based approach to homelessness requires that we
take action to alleviate the underlying and systemic human rights breaches that
contribute to homelessness.

Further, a rights-based approach requires us to meet the right of children to
participation. It requires us to seek appropriate ways for children to
participate in decisions about their future. Such an approach builds capacity
and resilience, problem solving skills and relationships. It empowers children
to claim their rights, to identify and understand the obligations of government
and service providers and to challenge the structures that have contributed to
their homelessness.

This approach respects the inherent dignity of the individual. It
acknowledges young people experiencing homelessness as individuals entitled to the protection and promotion of their human rights.

Again, I recognise that the Australian Government has made responding to
homelessness, including youth homelessness, a priority and would hope that
recent efforts to respond to this pressing need are continued.

6 The role of a national Children’s
Commissioner

Children are often voiceless in mainstream society. Children hold little
power in our political processes. They are unable to vote, are less likely than
adults to organise powerful lobby groups to advocate their opinions and
influence decision-making, are rarely consulted in a meaningful way about
decisions that will affect their lives and have less recourse to challenge
decisions that adversely affect their interests. The relative powerlessness of
children makes the protection of their rights all the more important.

Late last year the Commission joined a number of other organisations,
including Save the Children, in calling for a national Children’s
Commissioner. We believe that establishing such an office would raise awareness
of the importance of children’s rights and help to make consideration of
children’s best interests a fundamental part of all government
decision-making.

This is why the Australian Human Rights Commission supports the call for a
rights-based national Children’s Commissioner.

The examples that I have given tonight demonstrate that the human rights of
vulnerable groups of children in Australia are inadequately protected. The
rights of these children should be a national priority.

A national Children’s Commissioner operating under the human rights
framework would make an invaluable contribution to the well-being of all
children in Australia. A national Children’s Commissioner would:

• operate as a national advocate for children’s rights, ensuring that
  government decision-making processes and outcomes are consistent with the best
  interests of children
• develop mechanisms to secure the participation of children in decisions that
  affect them
• provide a coordinated approach to children’s rights.

As a
national advocate for children’s rights, the Commissioner would ensure
that children’s rights have a prominent place on the political agenda. A
Children’s Commissioner would highlight what concrete actions need to be
taken by the Australian Government to better protect and promote
children’s rights.

A Children’s Commissioner would also ensure that children’s
opinions are heard on issues that affect their lives and that those opinions are
represented to appropriate people and agencies in decision-making processes.
This approach would realise the right of children to participate in decisions
affecting their lives.

Finally, a national Children’s Commissioner would play an important
role in leading a co-ordinated national approach to significant issues. State
and territory children’s commissioners do important work in protecting the
rights of children. State and territory governments are responsible for many
essential services, such as public transport, education, health services and
other community services.

But there are some policy areas for which responsibility rests with the
Commonwealth and which have a direct impact on the lives of children, including
immigration, social security and family
law.^[20] In addition, many of the
issues facing Australia’s children, such as homelessness, violence and
bullying, mental illness and access to justice affect all children across
Australia. These are national issues and need to be understood, analysed and
responded to from a national perspective. A national Children’s
Commissioner would focus on promoting national responses to these important
issues.

A national Children’s Commissioner would champion children’s
rights in the development of policy and the implementation of legislation across
Australia to ensure the best life chance for every child.

7 Conclusion

It is almost 20 years since Australia ratified the Convention on the Rights
of the Child. While most children in Australia enjoy the full range of human
rights, we are aware that there are significant groups of vulnerable children
and young people for whom adequate human rights protection remains a difficult
challenge.

Australia can do a better job of protecting these children’s
fundamental human rights. We can do a better job of ensuring their optimal
survival and development. Indigenous children, children with a disability,
children experiencing mental ill-health, young people experiencing homelessness
and other vulnerable children are entitled to the full protection of their
fundamental human rights.

Let us continue to strive for the world envisaged by Save the Children: a
world in which every child has a healthy and safe childhood, the opportunity to
learn and a voice to speak for themselves. And let us continue to call our
governments to account – to call on them to fulfil their obligations to
respect, promote and protect the rights of all children.

Together we can create an environment in which all children in Australia are
able to thrive.

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^[1] Australian Bureau of
Statistics, Australian Census Analytic Program: Counting the Homeless, 4
September 2008.

^[2] Australian
Bureau of Statistics, Australian Census Analytic Program: Counting the
Homeless, 4 September 2008.

^[3] United Nations, Convention on the Rights of the Child (CRC), http://www.unicef.org/crc/.

^[4] Assembly of the League of
Nations, Declaration of Geneva,
1924

^[5] Sharon Detrick, A
Commentary on the United Nations Convention on the Rights of the Child,
Kluwer Law International, the Netherlands,1999,
pp130-131.

^[6] Manfred Nowak,
Article 6: the Right to Life, Survival and Development (Commentary on the United
Nations Convention on the Rights of the Child), July
2005.

^[7] Indigenous People’s
Organisations Network of Australia, Submission to the Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous people –
Australian mission, August 2009, http://www.humanrights.gov.au/social_justice/publications/srip_2009/index.html.

^[8] Prime Minister of Australia,
‘$58.3m boost for Indigenous eye and ear health’, Media Release, 26
February 2009.

^[9] Senate Community
Affairs References Committee, Hear Us: Inquiry into Hearing Health in Australia,
‘Indigenous hearing health and the criminal justice system’, 13 May
2010, para 8.10, available at
http://www.aph.gov.au/senate/committee/clac_ctte/hearing_health/report/…

^[10] Indigenous People’s Organisations Network of Australia, Submission to the
Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people – Australian mission, August 2009, http://www.humanrights.gov.au/social_justice/publications/srip_2009/index.html.

^[11] Senate Community Affairs References Committee, Hear Us: Inquiry into Hearing
Health in Australia, ‘Indigenous hearing health and the criminal justice
system’, 13 May 2010, available at http://www.aph.gov.au/senate/committee/clac_ctte/hearing_health/report/c08.htm#anc4

^[12] Howard, Damien, and
Hampton, Dianne, Ear Disease and Aboriginal Families, Aboriginal and Islander
Health Worker Journal July/August 2006, Vol 30 – Number
3.

^[13] World Health
Organisation, Strengthening Mental Health Promotion’, Fact Sheet
no. 220, Geneva, 2001.

^[14] Brian
Graetz et al., KidsMatter: A population Health Model to Support Student Mental
Health and Well-being in Primary Schools, International Journal of Mental
Health Promotion, Volume 10 Issue 4, November
2008.

^[15] Mark Colvin interview
with John Mendoza, PM, 21 June 2010,transcript available at http://www.abc.net.au/pm/content/2010/s2932959.htm.

^[16] Richard Reading, Susan Bissell, Jeffrey Goldhagen et al., Child Maltreatment:
Promotion of children’s rights and prevention of child maltreatment, The Lancet, Vol. 373, 24 January
2009.

^[17] Homelessness
Taskforce, Department of Families, Housing, Community Services and Indigenous
Affairs, The Road Home: A National Approach to Reducing Homelessness,
2008.

^[18] Homelessness
Taskforce, Department of Families, Housing, Community Services and Indigenous
Affairs, The Road Home: A National Approach to Reducing Homelessness,
2008.

^[19] Term borrowed from
Submission From The Salvation Army Australia Southern Territory To The House Of
Representatives Standing Committee On Family, Community, Housing And Youth
Inquiry Into Homelessness Legislation, August 2009.

^[20] Human Rights Law Resource
Centre, Special Children’s Rights Edition Bulletin, April 2010.