A national approach to child
rights

Speech by the Honourable Catherine
Branson QC, for panel discussion at child rights event: Do We Listen to Our
Children

Tuesday, 26 July 2011

at Mallesons Stephen Jaques Sydney

Introduction

Thank you, Tim, for your introduction.

I would like to acknowledge the traditional owners of this land, the Gadigal
people of the Eora nation, and to pay my respects to their elders both past and
present.

I would also like to thank Mallesons Stephen Jaques, the National
Children’s and Youth Law Centre and UNICEF, for inviting me to speak at
this event.

As my fellow panelists 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, such as
children who are in out-of-home care and children who are homeless.

Child rights approach

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

The current consideration of Australia’s performance in respecting,
protecting and promoting children’s rights by the United Nations Committee
on the Rights of the Child is the perfect opportunity for us to consider whether
these rights are being protected as fully as possible in Australia. It is an
opportunity to call our Government to account for any failure to live up to the
standards set out in the Convention.

And there is no doubt that, despite some positive measures to improve the
well-being of children, too many children fall through the gaps. It is not good
enough in a wealthy, democratic country such as Australia, that significant
numbers of children are the victims of violence and abuse, and others do not
have a stable roof over their heads.

National Children’s Commissioner

We have been asked to consider what Australia should do to improve the rights
of children.

Obviously, it is impossible here to refer to the full range of
recommendations made by the Commission in our submissions to the Committee on
the Rights of the Child. Instead, I thought I would discuss the need for a
national approach, more specifically the benefits of a national Children’s
Commissioner.

The Commission believes that a national Children’s Commissioner would
make an important contribution to monitoring children’s rights and to
making sure that areas where children’s rights are under threat are on the
national agenda.

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
• provide a coordinated approach to children’s rights
• develop mechanisms to secure the participation of children in decisions that
  affect them.

A national advocate

As a national advocate for children’s rights, 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 coordinated approach

A national Children’s Commissioner would also 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
important services that are essential to children such as education, health
services, public transport and other community services.

However, 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.

Further, 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.

To illustrate this point, some children I have been particularly concerned
about over the past several years are the significant numbers of young asylum
seekers who arrive in Australia without their parents, and who are subsequently
detained under our mandatory immigration detention system.

One of our key concerns is that the Minister for Immigration and Citizenship
– or an officer of the Department of Immigration and Citizenship –
is their legal guardian. The Commission believes this creates a fundamental
conflict of interest. It is not possible for the Minister, or an officer of
DIAC, to ensure the best interests of the child is a primary consideration in
decision-making when they are simultaneously the child’s guardian, the
detaining authority and the visa decision-maker. The care of these children
falls through the gaps of our child protection system. It is a federal
responsibility, and a national Children’s Commissioner could play an
effective role in advocating for children under federal responsibility.

Participation of children

Importantly, a national 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 involved in
decision-making processes. All children have a right to participate in decisions
affecting their lives.

Although there are some encouraging examples of child participation
facilitated by both government and non-government agencies, there are still many
opportunities to improve the participation rights of children in Australia,
especially for children from vulnerable backgrounds including children in
out-of-home care, homeless children, Aboriginal and Torres Strait Islander
children and children with a disability.

Conclusion

The appointment of a properly-funded, independent and rights-based national
Children’s Commissioner is one important way to ensure a national approach
to children’s rights.

I do not wish to close without acknowledging that there have been some
promising governmental developments at the federal level with respect to
children’s rights. In particular, the National Framework for Protecting
Australia’s Children and the National Plan to Reduce Violence against
Women and their Children are positive national mechanisms, which we hope will
deliver better coordinated and targeted protection of the rights of vulnerable
children in Australia. And at the state level, it is commendable that every
state and territory now has a children’s commissioner or guardian.

I believe that in Australia we have begun to recognise that the protection of
children’s rights is a national priority; that we need to continue to
strive for an environment in which all children are able to thrive. Let us
continue to call our governments to account – to call on them to fulfil
their obligations to respect, protect and promote the rights of all
children.