"Monitoring Implementation of the Convention on the Rights of the Child: challenges for Australia: Dr Sev Ozdowski (2002)

"Monitoring Implementation
of the Convention on the Rights of the Child: challenges for Australia"

Dr Sev Ozdowski, Human Rights
Commissioner

Keynote presentation delivered
at PLAN International Australia conference, St Vincents Hospital, Mary
Aikenhead Conference Centre, 27 Victoria Parade, Fitzroy

Wednesday 17 April 2002

Acknowledgements

I am delighted to
be invited to speak today at the Plan International Australia conference
on using rights to advance child centred development.

Thank you Mr Wishardt
for your invitation and kind introduction. I would like also to acknowledge
Ms Wendy McCarthy, under whose stewardship PLAN is sure to go from strength
to strength.

I would like to acknowledge
the Wurundjeri people, the traditional custodians of the land on which
we stand.

Introduction

I am especially
pleased to be given the opportunity to speak at this conference on the
rights-based approach to improving children's lives.

Consulting and partnering
with key child rights NGOs such as you is a central plank of the Commission's
goal in promoting the human rights of children and young people in Australia.
It is your invaluable day to day dedication and expertise in children's
rights which brings the Convention on the Rights of the Child to life.
Today I acknowledge and applaud your ongoing commitment in building a
world fit for children.

The Convention
on the Rights of the Child

I am going to speak
about the subject I know best: monitoring the Australian government's
implementation of the Convention on the Rights of the Child (CROC). This
treaty is the pre-eminent international human rights instrument dealing
with children's rights. Its coverage is wide: everything from the child's
right to protection from sexual exploitation to the right to play. It
covers civil, political, economic, social and cultural rights. Australia
ratified the CROC over eleven years ago, in December 1990; it was scheduled
to the Human Rights and Equal Opportunity Act in 1993.

HREOC's role

As Human Rights Commissioner,
it is my task to promote and protect the human rights of all people in
Australia. In particular, the Commission can:

• monitor implementation
  of the Convention on the Rights of the Child in Australia;
• inquire into
  acts or practices that may violate children's human rights, in two ways:

(i) by investigating
individual children's complaints of violations of their rights under
the Convention;(ii) by broader Inquiries into systemic violations
by or on behalf of the Commonwealth, for example, my current National
Inquiry into Children in Immigration Detention;

• make recommendations
  to the Federal Parliament on measures needed to prevent future violations
  and/or remedy past breaches;
• review new legislation
  and policy to check CROC compatibility;
• report on any
  actions that should be taken by Australia in order to comply with the
  human rights treaties that it has agreed to be bound by; and
• conduct public
  education campaigns on children's rights, e.g. "Youth Challenge:
  teaching human rights and responsibilities" on the Commission's
  web site at http://www.humanrights.gov.au/youthchallenge/index.html

Australia's record
so far

So what can we say
about the situation of children and young people in Australia? Overall
we lead the world in protection of children. We do not face challenges
such as widespread problems of malnutrition, child labour and child prostitution.
We have no military conscription of under-18s.

In the past decade,
significant progress has been made domestically. For example, immunisation:
according to Government figures, in 1996, only 56% of one-year olds had
been immunised against diphtheria, pertussis, tetanus, polio, measles,
TB. By March 2002, immunisation coverage of one year olds had risen to
90.5%.

There are similar
improvements in other areas, eg. school retention rates.

However the progress
is not uniform. Some children still fall through the cracks. We still
need to address the serious problems faced by:

• Indigenous children
  (high rate of incarceration in juvenile justice centres; low health
  standards; low school retention rates);
• children in state
  care, and in particular in immigration detention centres;
• the nearly 15%
  of children living below the poverty line; [1] and
• possible budget
  cuts that will affect the availability of services to children with
  disabilities.

Too often, some of
Australia's children slip through the net. This is just not good enough.

Therefore I am delighted
to learn that Australia's first Minister for Children, the Hon. Larry
Anthony, will be leading Australian delegation to the UN Special Session
on Children next month in New York. This will send a strong signal to
the world that the Australian government takes children's rights seriously.
It will hopefully provide an opportunity to renew our commitment to the
rights of children in Australia. It should give an impetus to development
of a new national plan of action for children in Australia for next decade
- a plan which is practical and has achievable goals.

Consultations
with children and young people

Last year I conducted
a series of consultations around the country on the challenges facing
children and young people today. These consultations were to precede the
planned UN Special Session on Children which was to take place in New
York in September but postponed due to the tragic events in that city.
The Special Session was to evaluate the 10 years since the World Summit
for Children, and to set new goals for the survival and development of
all children. The Special Session will now take place in three weeks'
time, and I will be taking Australian children and young people's concerns
there.

Some common themes
emerged during my consultations. The first one is participation, which
is one of the four overarching principles of the Convention on the Rights
of the Child, enshrined in article 12. It is crucial that children and
young people have a meaningful say in those issues that affect them on
a daily basis. Even very young children can express their views; the key
is finding ways for them to do so. Where children are involved in the
decision-making, it greatly increases the chances of programs actually
working.

Participation by
young people in decisions about their education is vital. Young people
tell me that they need more civics and democracy education in Australian
schools. They need more information and guidance on how to participate
effectively in the democratic processes.

Culturally appropriate
and flexible schooling that takes into account of the needs of children
with behavioural problems or language difficulties can go a long way to
addressing low school retention rates. Rather than trying to mould the
child to fit the system, the system must be changed to fit the child.
The child's right to education is protected by articles 28 and 29 of the
Convention.

There was criticism
of the legal system in some states for providing inadequate protection
and claims that the standards of proof for cases of child sexual abuse
were too high and the sentences too light.

Regarding young people's
relationship with police, participants in my consultations complained
of police 'move-on' powers being applied more rigorously to groups of
young people of Indigenous or Asian background.

In many states, young
people raised the need for an advocacy structure for children to be put
in place. Participants at the consultations recommended the creation of
Children's Commissions at the State and Federal level, as well as an independent
office for children which could monitor and collect data on children's
well-being and rights.

Children in immigration
detention

One of my priorities
is the care and protection of children and young people in immigration
detention. These children are among the most vulnerable in Australia today,
especially those who have come here without their parents. Many of these
children are asylum seekers who have fled situations of war and persecution.
They have arrived in a strange country after a long journey, where a different
culture, language and religion are often practised. Confronting and traumatic
as these experiences are for adults, how much more so must they be for
children?

Under Australian
law, all "unauthorised arrivals" (people who arrive without
visas) are placed in mandatory and non-reviewable administrative detention.
This is despite the fact that they have not committed any crime by seeking
asylum in Australia. It is their right to seek asylum under the 1951 Refugees
Convention, to which Australia is a party. The policy of detaining during
the processing of applications applies to both children with their family
and unaccompanied children. Detention, which can be for a period of over
one year, continues until the child is recognised as a refugee or deported.
Under new laws in September 2001, children who arrive at "excised
offshore places" are unable to apply for any visa and may be removed
to a "declared country" (eg. PNG, Nauru).

The precise number
of children held in Australia's immigration detention centres will vary
from week to week. However, it is possible to say that over the past few
years, approximately five hundred children have been held at any one time
and that the figures are comparable to the country's entire juvenile detention
population.

National Inquiry
into Children in Immigration Detention

During 2002, I am
conducting a major national Inquiry into the human rights of children
in immigration detention centres. Among other human rights issues, the
Inquiry will cover the conditions under which children are detained, their
health and education in detention and the impact of detention on their
well-being.

Over the course of
the Inquiry we will

• receive submissions,
  of which we now have approximately 70;
• hold public hearings
  in capital cities;
• inspect immigration
  detention centres;
• conduct focus
  groups with children who have been in immigration detention;
• examine individual
  children's cases for possible breaches of their human rights;
• conduct research
  on what is needed to ensure the well-being of children in immigration
  detention.

I hope to report
on the results of the Inquiry to the federal Parliament by the end of
2002.

CROC and children's
rights in immigration detention

Australia has international
obligations to protect these children as outlined in the Convention on
the Rights of the Child.

According to CROC,
the detention of a child shall only be used as a measure of last resort
and for the shortest appropriate period of time (article 37(b), CROC).

Even when it is absolutely
necessary to detain a child, under the Convention Australia must ensure
that the conditions and treatment of children in immigration detention
respects their human rights. This includes their right to education (article
28 and 29), to the highest attainable standard of health (article 24),
to practise their culture, language and religion (article 30) and their
right to family life (articles 5, 9, 18).

One thing is clear:
if Australia decides to detain children, it must accept that this policy
brings with it certain obligations to do right by the children.

During the course
of the Inquiry we will cover in detail all aspects of the human rights
of children in immigration detention.

However, at these
early stages it is possible to see a few main issues emerging.

The threats to the
mental health of children in immigration detention in particular were
made especially apparent to me during a Commission visit to Woomera facility
in January this year. That visit confirmed that there had been a number
of incidents of self-harm by children in the facility at the time of the
hunger strike. Children were responding to the "atmosphere of despair"
in which they lived in the facility. A full report on this visit to Woomera
will be sent to the Attorney-General in the next month.

I wish to emphasise
that immigration detention centres do provide health, education and other
services, but I am not convinced these services are sufficient to meet
their needs or indeed their rights under the Convention. Children whose
parents arrive on a tourist visa and then seek refugee status are able
to attend school in the Australian community and receive support services
such as counselling. However, children in immigration detention centres
are reliant on DIMIA and the detention service providers to provide these
services. In general, during my consultations and general inspections
to detention facilities, I have found these services are not available
to the same degree.

What concern me greatly
are the cases of long-term detention, where children and their families
cannot go backward or forward. Their refugee application may drag on and
on. They may be rejected but the family cannot be deported to another
country because of the difficulty of procuring travel documents or because
they come from a country such as Afghanistan or Iraq where people cannot
be practically returned at the present time. During the impasse they remain
in detention for months, sometimes years. It is important to remember,
too, that children in immigration detention have already seen, heard,
learnt, feared and faced an incredible array of challenges before reaching
Australia.

I will tell you a
story that might assist in understanding the human face behind all this
talk about detention policy.

During an inspection
visit of the Villawood immigration detention centre last year, I met with
a number of families who are detained there. I will call one young person
we interviewed "Lisa". Lisa is 13 years old and arrived with
her family from Iran earlier this year. We asked Lisa what she was learning
at school. She learns English, maths and handicrafts, but not geography.
"What do you want to be when you grow up?" we asked her. "A
doctor", she replied instantly, her face lighting up. At that moment,
Lisa's father smiled at his daughter and this image of what the future
might bring.

Now I will not say
that Lisa and her family have a good claim for protection as refugees
as I am unfamiliar with their claims. Nor will I say whether Lisa should
become a doctor in Australia or in Iran or a third country. But what I
will stress is that Lisa is a child. She is a child who, during her time
in Australia, is entitled to all the rights children are entitled to in
this country. And it is the responsibility of all of us to ensure that
the children like Lisa in immigration detention receive the care and protection
they are entitled to, and that under no circumstances should detention
further harm children's well-being.

Conclusion

In conclusion, Australia
has a proud record with children's rights, but noblesse oblige.
And there are areas where Australia needs to improve, as I have indicated
in my address.

Australians, through
our governments, community and professional organisations, schools and
businesses need to take greater responsibility to ensure that no child
misses out on the enjoyment of her or his inherent human rights.

Although we in Australia
have many things to be proud of, there is much work needed to ensure that
all children's rights are respected throughout the country, without discrimination
of any kind.

I hope that the UN
Special Session on Children will provide a unique opportunity to focus
on how best to improve children's rights in Australia and the world.

ENDNOTE

1. According
to the Smith Family and NATSEM's "Financial Disadvantage in Australia
1990-2000: the persistence of poverty in a decade of growth", 28
November 2001. See
http://www.natsem.canberra.edu.au/pubs/poverty01.html

Last
updated 26 April 2002