Marist Youth Care

Introduction

Thank you and good evening to everyone.

I would like to start by acknowledging the traditional owners of the land on which we are meeting today, the Wangal people, and pay my respects to elders past and present.

Thank you to the CEO of Marist Youth Care, Cate Sydes, the Chair of the Marist Youth Care Board, Mr John Cameron and the other Board members for inviting me here tonight.

While I believe most Australians wish for children in this country an equal chance at life - an opportunity to not just survive but to thrive - and to be free from violence, abuse and neglect, it is, perhaps, less understood or acknowledged that this opportunity is also the right of every Australian child.

Compared to many children in the world, Australia’s children are well placed to fully enjoy their human rights. Because of our wealth and economic opportunities, our systems of social security and health care, legal protections, access to housing, food and water and education, there are significant opportunities for all children to grow up healthy, happy and safe.

However, while there is certainly a lot to celebrate about our children, and the systems we have in place to protect children’s fundamental rights, many children in Australia are falling through the gaps in human rights protection, and their wellbeing is threatened in fundamental and serious ways.

As a specialist youth organisation, Marist Youth Care provides services for over 1,000 young people and their families every year.

Up to 100 young people (12-25 years) are in full-time care in your residential programs at any one time. Most of these young people are disengaged from their families, schools and the community.

As an organisation, you are dedicated to rehabilitating and supporting youth at risk, addressing the many complex issues and challenges faced by young people and their families.

Your clients include:

• Young people living in residential care
• Young people at risk of exclusion from mainstream education
• Early school leavers
• Homeless youth and those at risk of homelessness
• Young Aboriginal people and their families
• Pacific Islander and African refugees and youth from other culturally and linguistically diverse groups
• Young offenders
• Young people in transition from care
• Young mothers
• Unaccompanied Minors

In my role as the National Children’s Commissioner, it is the Convention on the Rights of the Child that provides me with the vision for change and the vehicle for realizing the full spectrum of children’s economic, social, civil and political rights. Promoting understanding and knowledge of the Convention and enlisting champions, like you, for children’s rights is a fundamental part of that role.

Apart 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 Convention makes clear that children have the same human rights as adults, but that they also are entitled to special protection because of their unique vulnerabilities as children. When it came into effect, children were recognised as rights-bearers for the first time in the international human rights treaty system.^[1]

In signing on to the Convention on the Rights of the Child 24 years ago, Australia promised to protect and promote the rights of children as outlined in the Convention, and is obligated to realise those rights.

In theory this should involve encapsulating children’s rights into practice, policy and legislation. However, in the Australian context it is fair to say that apart from some specific state child protection frameworks and programs, and minor references in federal laws, limited progress has been made on this score.
In 2011 Australia submitted its fourth report to the UN Committee on the Rights of the Child, on progress in implementing the Convention, and appeared before the Committee in June 2012.

In short, the UN Committee said that while Australia has made some progress, there are still many children who miss out. Organisations such as yours and the work that you tirelessly do are essential to those children who are vulnerable.

For example, the UN Committee was concerned about the number of children in out-of-home care and that the availability and quality of care remains inadequate. It recommended that Australia undertake a systemic evaluation of the efficacy of existing measures for all family types and all children, including the collection of disaggregated data, and that the findings be used to guide appropriate measures to strengthen current programs of family support.

The UN Committee highlighted the significant increase in the number of children placed in out-of-home care and the absence of data documenting the criteria and decision-making process leading to the placement. It was also concerned at reports of inadequacies and abuse occurring in the systems of out-of-home care including inappropriate placement; inadequate screening, training, support and assessment of carers; shortage of care options; poorer outcomes for children in care compared with the general population; abuse and neglect of children in care; inadequate preparation for children leaving care; and placement of Aboriginal and Torres Strait Islander children outside their communities and the need for more Aboriginal carers.

The UN Committee noted Australia’s efforts to move children and families in immigration detention facilities into alternative forms of detention, but was deeply concerned about the mandatory detention of child asylum seekers without time limits and judicial review; the best interests of the child not being the primary consideration in refugee determinations, and, when it is, not being consistently undertaken; the conflict of interest where the legal guardianship of unaccompanied minors is vested in the Minister of Immigration and Border Protection, the continuation of offshore processing of asylum and refugee claims. It recommended that Australia bring its immigrations and asylum laws into full conformity with the Convention on the Rights of the Child and other relevant international standards.

It urged Australia to:

• Reconsider its policy of detaining children who are seeking asylum, refugees and/or irregular migrants, and ensure that where detention is imposed it is subject to time limits and judicial review.
• Ensure that migration and asylum legislation and procedures have the best interests of the child as a primary consideration, and that determinations of the child’s best interests are consistently applied by trained professionals.
• Expeditiously establish independent guardianship of unaccompanied minors
• Abandon the policy of offshore processing of asylum claims and ‘refugee swaps’, and evaluate reports of hardship suffered by children returned to Afghanistan without a best interests determination.

Australia has obligations to children who arrive in Australia unaccompanied, especially those who are seeking asylum, to ensure that they receive special protection and assistance. Australia has an obligation under the Convention on the Rights of the Child to ‘ensure alternative care’ for these children. I know that you as an organisation provide an unaccompanied minors program.

An important element of the care of unaccompanied minors is effective guardianship. In the absence of their parents, the legal guardian of an unaccompanied minor has the ‘primary responsibility for the upbringing and development of the child’, and is under an obligation under the Convention to act in the best interests of the child. Under Australian law, the Minister is the legal guardian of ‘non-citizen’ unaccompanied minors.

The Commission has a range of concerns relating to unaccompanied minors in immigration detention.

Most significantly, the Commission is concerned that the Minister’s role as guardian of unaccompanied minors is problematic, as the Minister is also responsible for administering the immigration detention regime under the Migration Act and for making decisions about granting visas.

Given these multiples roles, it is difficult for the Minister, or his delegate, to make the best interests of the child the primary consideration when making decisions concerning unaccompanied minors.

The Commission has consistently recommended that an independent guardian be appointed for all unaccompanied minors in immigration detention, including in the community, to ensure that their rights are protected. In 2012 the Parliamentary Joint Select Committee on Australia’s Immigration Detention Network also recommended that the legal guardianship of unaccompanied minors in immigration detention be transferred from the Minister.

In April 2013, the numbers of children in closed immigration detention began reaching unprecedented levels in Australia’s history (over 1,600 on 30 April 2013, and reaching 1,992 in July 2013). In light of the significant increase in the numbers of children being detained, the Commission began planning an investigation into what has changed in terms of the situation for children in detention in the 10 years since A last resort?

The purpose of this current inquiry is to investigate the ways in which life in immigration detention affects the health, well-being and development of children. The inquiry will assess the impact on children by seeking the views of people who were previously detained as children in closed immigration detention and by assessing the current circumstances and responses of children to immigration detention.

To date the Commission, led by President Gillian Triggs has visited Christmas Island, Darwin, Melbourne, Sydney and Adelaide. I have participated in Darwin, Melbourne and Adelaide. I visited Pontville as part of my listening tour last year. On the visits we are given a tour of the facilities including accommodation, health services, dining areas, classrooms, and play areas. We then interview children and families who wish to talk to us and tell us their story, their perspectives on the conditions they are living under and the concerns they may have.

While the department is doing what it can to provide basic support and reasonable living conditions, these children are impacted negatively by living in a detention environment. These centres all have high wire fences around them, and both children and their parents frequently report feeling like they are criminals and in a prison. Rooms are regularly searched and headcounts undertaken, including very late and early, children’s bags are searched going to and from school, and boat numbers are regularly used to identify people.

In general children and families who have had prolonged detention histories are experiencing a range of mental and physical issues. The uncertainly of their situation and the lack of ordinary freedoms and cramped living conditions, necessarily limit families capacity to adequately parent, for example prepare meals and feed their children when they need it. A number of babies have now been born in detention. A number of mothers have post natal depression and related issues. Some children have become withdrawn and scared. The teenagers are generally despondent and withdrawn. Sleep is a particular problem and many reports being awake at night through worry.

While most children are now attending school, there have been delays in some cases linking children into school. I am aware that all children in your Unaccompanied Minors Program attend school. Many parents are worried that their children are behind on reading, writing and numeracy. On Christmas Island, in particular, the schooling is limited and the classroom conditions difficult, especially for primary school students. Some centres are better equipped than others in respect of toys and play equipment and the department is endeavouring to improve that.

A common feature has been a lack of access to lawyers, or information about how to access a lawyer. The Commission has been providing referral information where we can.

Another issue is the limited opportunities available to go outside the centres. Despite regular excursions being organised not everyone is accessing these, with a number of people having been in a centre for many months, and never having been outside.

The Commission will report on the Inquiry findings towards the end of this year.
I may examine as a part of a future statutory report to parliament, the issue of unaccompanied minors living in the community. I believe that this is a neglected area, one which definitely warrants looking at.

I look forward to working more closely with you as I progress this possibility.

Once again thank you for asking me to join you this evening and I congratulate you on the worthwhile work that you are doing to promote the human rights of children and young people.

^[1] Stuart Hart, Yanghee Lee and Marie Wernham, ‘A New Age for Child Protection – General Comment 13: Why it is Important, How it was Constructed, and What it Intends?’ (2011) 35 Child Abuse and Neglect 973.