Children’s Rights in Australia: looking back and moving forward

Good morning everyone. I’d like to begin today by acknowledging the traditional owners of the land, the Widjabul people of the Bundjalung nation. I acknowledge and respect their continuing culture and the contribution they make. I also pay my respects to elders past, present and emerging.

I’d also like to thank Professor Anne Graham for inviting me to speak to you today. And I also want to acknowledge all the tireless champions for children and young people in the room today. It is through your collective and individual efforts that I draw the energy to do my job to the best of my ability.

As well as the Centre for Children and Young People entering adolescence, this year marks the 30th  anniversary of the Convention on the Rights of the Child – So today I want to take the opportunity to provide you with some reflections from my perspective as Australia’s first National Children’s Commissioner – of where we have come from and where we still need to go. I have been asked to reflect of three things:

1. our strengths in promoting, protecting and realising the rights of children and young people;

2. priority areas that require urgent and ongoing attention;

3. What needs to happen to effect further change and improvement

…and I hope I will be able to do that effectively in my presentation to you today.

As you know the Convention frames and informs all of my work at the Australian Human Rights Commission, as I along with all of you seek to promote the fundamental rights of children in all aspects on work and life, and in particular in policies, programs and laws.

Australia ratified the Convention on the Rights of the Child in 1990. And as I am sure you are aware, the Convention is the most widely ratified human rights treaty in history.

The Convention marks a distinct moment in history that dramatically changed the way children were treated and viewed. Instead of seeing children as passive and in need of protection, the Convention articulated a view of childhood in which children were empowered and independent. This had the effect of re-conceptualising the traditional dichotomy between adults and children, so that children were no longer simply subject to adult control. 

The Convention has four guiding principles which work together to ensure all other rights are realised.

One of the most important of these principles is the right to be heard. The Convention also stipulates that children should have the power to participate meaningfully in decision-making processes that affect them.  Articles 12 and 13 of the Convention work in tandem  to protect the rights of children to express their views freely, to participate in decision-making processes and be provided with accurate information.

As a nation we struggle to give children a voice in any systemic way. Genuine opportunities for children’s participation in our social, cultural and political life remain limited. One reason for this is that children’s rights are not well understood within the general community. Many children themselves simply do not realise that they have rights, and many adults also fail to recognise children as rights holders. This is why human rights education is such an important element of my role, and a promise in fact to children under article 42 of the Convention.

But there are limits to what I can achieve as a single individual with a tiny budget.  Which is why I need all of you to continue to champion and promulgate children’s rights.

Despite the limitations of the role in this regard, I have consistently sought out  children’s views to keep me focused and grounded and to keep faith with our promises to children under the convention. 

One of the first things that I did when I was appointed in 2013 was to conduct a National Listening Tour called “The Big Banter”. I used this tour to speak to listen to children, young people and their advocates about what they thought were the main human rights issues affecting young Australians.

 

Here are some of the things they told me in those early days.

“Letting Australian teenagers have a bigger say in how their schools are run would be a fantastic thing to do” - 14 year old from Victoria

“Life would be better for children if adults and older people were more open to our ideas and thinking” - 12 year old from NSW

“Life would be better for children and young people if there was no hitting - child from Western Australia”

“I have Asperger’s Syndrome. Life in primary school was very difficult. Life would be better if people that were different, disabilities, races, religions and any other differences, all accepted each other. If there was no bullying. If schools were supportive of kids with disabilities, especially invisible disabilities like Asperger’s Syndrome” - 14 year old from Victoria

“I have a little sister who is 9 years old. We both know that kids and young people should be safe and be able to go to school and have food, but we’d never heard of the UN convention that puts all of this in writing. In fact, I don’t think many young people know about the Convention. But we should know because it’s important to see this in writing and for me, it was comforting to see that I and other young people are recognised this way” - 15 year old from Victoria

“Sometimes my friends need help but don’t know where to go or don’t want to make a fuss” - 16 year old from the ACT

“I’m a young Indigenous person. I’m locked up in a Youth Detention Centre. I want more staff to prevent fights between other inmates. I also want more help on the outside instead of being locked up straight away” - child from Victoria

Through the banter, I was able to identify five key themes which have played a central role in research and advocacy and continue to guide me. These are:

1. A right to be heard: elevating children’s voices and participation in decision-making.
2. Freedom from violence, abuse and neglect: ensuring safe environments and respect for the dignity of the child.
3. The opportunity to thrive: safeguarding the health and well-being of all children, particularly those who are most vulnerable.
4. Engaged citizenship: promoting children’s civic engagement and active citizenship through education and awareness-raising.
5. Action and accountability: monitoring the progress of Australia’s commitments to protect the rights and well-being of children.

These themes also provided the structure for my recent report to the United Nations on Australia’s progress against the CRC. This alternative report from the AHRC as Australia’s National Human Rights Institution is submitted to the Committee on the Rights of the Child alongside a report provided by the Australian Government. The Committee then has an opportunity to hear from and engage with country based child rights advocates before the Government appears before the Committee. It is on this basis that the Committee provides the Government with a list of issues to respond to when it appears. The Commission’s report has been highly influential in this regard.

There is a 5 - 6 year cycle for reporting to the UN. The previous report was submitted by the Australian Human Rights Commission in 2011, prior to my appointment as Children’s Commissioner. Of concern is that it took until January 2018 for the Australian Government to respond to the Committee’s report and recommendations issued in 2012.

This has affirmed for me the criticality of having a children’s commissioner to take the deep dive into issues for children, to be present and active on the national and international stage, and to keep the Government to account.

My report contained 60 recommendations to advance children’s rights.

It also reflects on some of the positive developments during the reporting period - which are worth outlining as it shows us that if we work strategically and collaboratively progress can be achieved and opportunities opened up for further progress:

In terms of influencing agents and oversight bodies, since Australia last appeared before the Committee:

• National Children’s Commissioner has been established
• State commissioners
• E-Safety commissioner
• NOCS
• Office of the Data Commissioner
• Scrutiny of Bills Committee/Statements of compatibility.

Over the period there have been several significant commissions of inquiry and reviews both at a state and national level, including

• NT Royal Commission
• Royal Commission into Institutional Responses to Child Sexual Abuse
• National Inquiry into domestic violence

In addition, there have been a number of relevant national plans established or progressed, for example:

• The national plan to reduce violence against women and their children
• National framework for protecting Australia’s children
• National action plan to combat human trafficking and slavery

And lastly, new laws and policies have been introduced that have the capacity to advance the rights of children;

• Criminalisation of forced marriage
• Modern slavery act
• 17 year olds no longer in QLD adult jails
• OPCAT
• National Principles for CSOs, recently endorsed by COAG
• Human Rights jurisdictions
• Children out of detention
• Changes to family law act to better protect the rights and safety of children

Issues of concern:

While noting the positive developments and the fact that most Australian children do pretty well and enjoy good and healthy childhood, the Report also set out a number of critical concerns and recommendations to address these. 

In particular the Report noted the urgent need for policy, legal and informational architecture to underpin a child rights agenda at the national level. In Australia, this is exacerbated by the lack of a Bill or Charter of Rights, and all the scaffolding that would necessarily flow from that to protect human rights, including those of children.

Other issues highlighted included:

• The growing anxiety in Australian children and the need for greater attention and resources directed at their mental health
• The significant numbers of children exposed to family violence and abuse
• The high rates of children removed into care
• Our under-investment in early childhood, early intervention and prevention
• The over-representation of Indigenous children in the care and justice systems
• Our low age of criminal responsibility at 10
• The policy and impact of keeping children in immigration detention for any period
• The rise in child homelessness
• Recent changes to laws that diminish the rights of children and their families, for example Counter-terrorism laws extending control orders to children as young as 14.

Data can help to tell the stories of our children and their experiences. It can highlight crucial issues, tell us how big these issues are and point to which groups of children are more likely to be susceptible to certain experiences and trajectories.

The data presented on the next slide presents some of the worrying numbers that point to some of the pressing contemporary issues for Australia’s children that I highlighted in the Report. To the UN

• Suicide is the leading cause of death for children
• Self-harm rates are alarming and growing, just under 40,000 episodes resulting in hospitalisation in the ten years to 2017
• Significant proportions of men and women experience violence and abuse as a child
• 29% of homeless people are children, many escaping family violence either on their own or with their parent.

While, we have been able to source this data to tell part of the story of the experiences of Australia’s children, much is  missing.

One issue that I am passionate about is the need for Australia to collect more, higher-quality, and nuanced information about its children and young people.

At the moment, there are significant gaps relating to the wellbeing of Australian children and young people – which means that the pictures we are able to construct are often incomplete. It also means the stories of some children are not told at all.

Some of the problems that arise because of these data gaps became very clear to me when putting together the report to the UN.  In signing up to the Convention, Australia also commits to collecting data, monitoring and reporting on its progress in particular ways. At present, as a nation, we are unable to fulfil this requirement, and many many areas Australia has been asked to report on are basically blank pages.

In particular we have limited or no data about children dis-aggregated by age, location, socio-economic status, cultural background, disability, lesbian, gay, bisexual, trans and intersex (LGBTI) status in critical domains of health and well-being.

These include:

• child deaths, self-harm deaths and self-harm hospitalisations
• violence against children
• outcomes for children in or having left child protection services
• children with disability, including Fetal Alcohol Spectrum Disorder (FASD)
• school expulsions and suspensions
• drug and substance abuse.

Dis-aggregated data across different age ranges is not readily available. For example, payment data on the National Disability Insurance Scheme (NDIS) is only provided in two cohorts, 0–9 years and 10–19 years. These cohorts include children across a wide range of developmental ages, as well as adults, and are too broad to be helpful.

As I noted in the report these data gaps impede Australia’s capacity to monitor and report on child well-being, and its ability to understand when and how best to intervene in ways that will support all children to thrive. 

Of course, another critical aspect of telling the story of our kids, is accessing their voices, insights and wisdom. In the lead up to the Report, I managed to connect in face to face with around 450 children about what they liked about living in Australia, what worries them, and what gets in the way of them claiming their rights. I was also able to run a survey in partnership with the University of Melbourne and the ABC television program, Behind the News.

The key themes that emerged from discussions with younger children were that they enjoyed being with their families and friends, loved to play, and appreciated Australia’s natural environment. Aboriginal and Torres Strait Islander children in this age-group highlighted connection to culture and cultural activities as important, and those in remote communities emphasised the significance of a safe home.

Older children also loved our good weather, access to the bush and the beach, and the fact that we have strong gun control laws, free health and education. Consultations conducted with teenagers revealed that they have a keen understanding of areas in which the Australian Government could improve its performance in terms of its obligations under the CRC. Many cited mental health as a significant issue. Other issues highlighted by teenagers included: the lack of education about rights in Australian schools; frustration about their inability to participate in politics; the lack of capacity for schools to respond to individual learning needs; and social structures that diminish the agency of children.

Aboriginal and Torres Strait Islander teens talked about the importance of maintaining connections to culture and language, with one young person saying ‘Cultural background is key to feeling like you belong to something more’.

All up, 22,700 children aged from 6-17 years completed the BTN on line survey. They came from every state and territory, and we also had respondents from regional and remote areas. Aboriginal and Torres Strait Islander children comprised 6% of the survey’s respondents, while 13.7% came from families where English was not the main language spoken at home.

The rights that children ranked as most important were: being safe; having a home and being cared for; and having a clean environment. Older children ranked getting an education in their top three rights.

I’m pleased to report that the majority of children felt that their rights were being met most of the time. However, the survey also revealed that access to accurate information, being treated fairly, and being able to participate in decisions that affect them were the rights least likely to be met. This was most pronounced among children from culturally and linguistically diverse (CALD) backgrounds and Aboriginal and Torres Strait Islander children.

At the end of the survey, we asked children if there was anything specific that they’d like me to tell the UN on their behalf. This section elicited a wonderfully diverse array of comments, which I think speak loudly and clearly to the capacity of children to be thoughtful, politically engaged and compassionate citizens.

These comments also constitute a very astute reflection on the status of children’s rights in Australia at this particular in moment in time:

• All the poor people should have clean water and food and have a better home. (11 years old)
• Australia is great, but i think we can do more for the homeless and think about using more renewable energy, other than that, Australia is awesome! (12 years old)
• Children need more sleep. Less technology. (11 years old)
• Allow refugees to come in so we can know to do the right thing. (11 years old)
• Australia is home to many people of many origins and I was taught that they all deserve that best we can give them. (11 years old)
• Children 11 or older should be able to vote on things like the same sex marriage survey. (11 years old)
• Children are strong people and they deserve to be heard. (10 years old)
• Children don't get a very large say in divorce: like which parent they want to live with. (12 years old)
• Children like me who come from single parent families are doing it hard because there is never enough money. (14 years old)

So building on these ideas where to we need to direct our efforts in order to help children to claim and realise their rights.

I recently took part in an event called shaping Sydney and was reminded of the child friendly cities initiative popular a little while ago. In relooking at the framework set out by UNICEF to become a child friendly city or community I think it is worth revisiting the components as we plan the next steps for Australia in its child rights journey.

Much of this - having child focused plans, budgets, laws and oversight reflects what I refer to as the ‘missing architure’ needed to embed child rights in the Australian context at the National level.

In the report to the UN I recommended among other things a comprehensive national plan for child wellbeing, based on the domains of the CRC, and supported by a national children’s data framework. I also recommended the adoption of child impact assessments of all major policies and strategies, and a program of child rights education. Other ideas that should be on the table for advocacy and action include a human rights act, a children’s act, and a minister for children. 

Dome of these might seem ambitious or out of reach at this time, but initiatives to improve the lives of children don’t need to be advanced in a vacuum, there are a number of live opportunities to leverage off.

One such opportunity is the national work on child safe organisations I have had the privilege to drive forward.

This stemmed from the deliberations of Royal Commission into institutional responses to child sexual abuse whose Terms of Reference, in addition to looking into historical abuses of children,  asked that they consider ‘what institutions and governments could do to better protect children against child sexual abuse and related matters in institutional contexts in the future.’

AS part of that remit The Royal Commission developed a framework containing ten elements designed to make institutions ‘child safe’ which were set out in its interim. And final report.

 The Human Rights Commission in concert with the Australian Government had begun consulting on draft child safe principles prior to the finalisation of the RC Report.

The Royal Commission recommended that the Child Safe Standards should apply to institutions that engage in child-related work and that they should be adopted as part of the new National Statement of Principles for Child Safe Organisations. (Rec 6.7) and that the principles should guide organisations in how to prevent, identify and improve responses to all forms of abuse and neglect.  

From the Human Rights Commission’s perspective Child safe frameworks should also help organisations to ensure children’s well-being more broadly. A focus on children’s rights, well-being and voice is the fundamental platform for keeping children safe.

This kind of approach recognises the strengths of organisations that deliver services to children, and the benefits that children themselves can gain from being part of organisations of various kinds.

The National Principles, endorsed by COAG in February this year, are relevant to organisations of all different sizes and across all sectors. They apply to all organisations with a duty of care to children and young people – from volunteer playgroups and local sporting clubs to recreation, education and faith-based services, and cover all forms of potential harms to children.

The ten principles collectively show that a child safe organisation consciously and systematically:

• Creates an environment where children’s safety and well-being is at the centre of thought, values and actions
• Places emphasis on genuine engagement and valuing of children and their rights
• Creates conditions that reduce the likelihood of harm to children and young people
• Creates conditions that increase the likelihood of identifying any harm
• Responds to any concerns, disclosures, allegations or suspicions of harm.
• As you can see from the Wheel of Safety, starting from the top and moving right:
• The first four principles emphasise getting the organisational culture right, including committed leadership and appropriate governance mechanisms. Children learning about their rights and being empowered to speak out, addressing children’s diverse needs, and involving families.
• Principles 5, 6 and 7 are about the organisation’s processes for recruiting, training and supporting staff and dealing with concerns, complaints and incidents.
• Principle 8 focuses on managing risks to children in physical and online environments.
• The final two principles focus on the need for current, accessible child safety and well-being policies and procedures, and the need for them to be regularly reviewed and improved.

One of the profound learnings from the Royal Commission is that silencing children, not providing them an avenue to be heard or believed, does not protect them – in fact it does the opposite. Silenced children are never protected children.

I consulted with Children in the developing the principles, and they identified a a number of promises they wanted from organisations to keep them safe - in particular - to be treated equally and fairly, to be welcome and feel they belong, for adults to help them with their hopes and dreams, to be responsive to individual needs, to be able to have a say and in multiple ways, for adults to be good at what they do, for the environment to be comfortable and clean, to be able to get care and help when they needed it, and for adults to not just listen but to act.

Apart from finalising the principles the Australian Human Rights Commission has been busily developing practical tools and resources to help organisations implement the National Principles. These include:

• A Child Safe Organisations website
• An introductory video
• A self-assessment tool
• a Charter of Commitment for and with children and young people.
• An example Code of Conduct
• A template for a Child Safety and Wellbeing Policy
• A digital safety checklist developed in partnership with the e-Safety Commissioner.
• a guide for parents and carers, to help them consider whether an organisation is child safe.
• Online training modules for each principle.
• The implementation of the National Principles across all Australian organisations presents an amazing opportunity in relation to building and embedding and appreciation of child rights and creating cultural at the organisational level that puts children at the centre of thought, values and action.

And there are many other opportunities before us which the people in this room have helped create.

In particular we have the opportunity to turn the national framework for protecting Australia’s children into something that is not grounded in a child protection perspective, but something that goes to the wellbeing of all children, addressing things like early intervention, child homelessness, poverty, and mental health. This year the Commission is also facilitating a dialogue on human rights, which will have a significant child and youth focus, this is a very real opportunity to refocus Australian society on the needs of children and the importance of a good childhood.

 

Australia’s appearance before the UN committee later in the year, and the committee’s subsequent report and recommendations is another significant opportunity to put pressure on the government to lift its game in relation to child rights and well-being. I hope to play a part in that by producing a public facing report on the state of child rights in Australia to coincide with the 30th anniversary of the CRC in November, hopefully incorporating the committee’s recommendations, and seeking a commitment for a timely and comprehensive governmental response.

But our greatest resource and our greatest opportunity lies in young people themselves, they continually demonstrate their capacity for wisdom and activism, listening to them, honoring and encouraging them must be our number one priority.

It is up to us and our friends and colleagues in conjunction with young people around the country, to seize these and other opportunities where it makes sense to do so, and to create others if we need to. I very much look forward to canvassing how we can collectively and strategically do this today in this year of the 30th anniversary of the CRC and beyond. At this time, I truly believe there is fertile ground on which to advance and grow a children’s rights agenda and the future is ours to grasp for our children and young people. So happy birthday to the centre and happy birthday to the CRC!

Thank you.