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COMMITTEE ON RIGHTS OF CHILD TAKES UP REPORTS OF AUSTRALIA
13 September 2005
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Committee on the
Rights of the Child
13 September 2005
The Committee on the Rights of the Child this morning took up the second and third periodic reports of Australia on how that country implements the provisions of the Convention on the Rights of the Child.
Presenting the reports, Mike Smith, Permanent Representative of Australia to the United Nations Office at Geneva, said they underlined Australia’s respect for its obligations, and its commitment to upholding the principles contained in the Convention. Australian Governments were responding to compelling evidence that investment in early childhood was an effective and cost-effective strategy for improving outcomes for children both now and in the future, and recognized the need for coordination of nation-wide activity to promote child development in the country. Family law reforms, which were announced in July 2005, would facilitate shared parenting, consistent with the best interest of the child, and would also address the specific needs of indigenous children in the family law system. Further developments in immigration detention policy, particularly the movement of families with children out of detention facilities into the community, ensured that the current immigration detention policy was administered with greater flexibility, fairness, and in a timelier manner.
Issues raised by Committee Experts, including Kamel Filali who served as Country Rapporteur for the reports, concerned the Government's global policy on children and families, and the role of the Human Rights and Equal Opportunities Commission as well as questions on health and education. Questions were asked on the disparity between indigenous children and non indigenous children in such areas as health, infant mortality and education. Other questions included what the country was doing to respond to the significant number of suicides among the youth of the country. Several Experts also raised the topics of mental health, obesity, malnourishment and suicide among indigenous children, and one Expert asked whether studies had been done on this last phenomenon.
In preliminary concluding remarks, Jean Zermatten, the Committee Expert serving as co-Country Rapporteur for the reports, said a new direction had been taken in Australia in terms of family policy and stronger families and communities. All these recent efforts bore witness to the interest attached by the State party in children, including those affected by the policies of the family and of the State. It was hoped the two Optional Protocols would be ratified soon. The situation needed to be improved in at least two items, particularly with regards to the disadvantages of indigenous children, as this was a source of concern for the Government, and for the status of refugee and asylum-seeking children, although a lot of progress had been made in this area in particular.
The delegation of Australia included representatives of the Attorney General’s Department, the Office of Indigenous Policy Coordination, the Department of Immigration and Multicultural and Indigenous Affairs, and the Department of Family and Community Services.
The Committee will issue its final observations and recommendations on the reports of Australia at the end of the session which will conclude on 30 September. The Committee will reconvene on Wednesday, 14 September at 10 a.m. when it will take up the second periodic report of Algeria (CRC/C/93/Add.7).
Reports of Australia
The second and third periodic reports of Australia (CRC/C/129/Add.4) demonstrate the special place that children hold in Australian society. High levels of effort and resources are committed to ensuring that Australian children are able to reach their full potential and that the rights to be found in the Convention are available to them. Most Australian children enjoy lower infant mortality rates, better health, higher educational outcomes and greater leisure opportunities than their counterparts in many other countries.
The reports show that Australian Governments have continued to seek opportunities to improve the implementation of the Convention on the Rights of the Child in Australia. One of the main achievements in the period covered by the reports has been the increased coordination of policies and monitoring mechanisms for children. The Convention is implemented by nine governments, each of which develop initiatives to implement the Convention that best meet the needs of their respective jurisdictions, which means that the Convention is implemented in a variety of ways across the country. This means that there will never be complete consistency in the manner in which it is implemented, but this is not required to implement the Convention. The report also demonstrates Australia’s commitment to children outside of Australia.
Despite the efforts on behalf of children, significant challenges remain, the reports say. Australian Governments continue to address the needs of indigenous children, particularly in the areas of health, education, family violence and the juvenile justice system; yet indigenous children continue to suffer disadvantage in these areas, compared with non-indigenous children. The child protection system is another area of concern, as despite extensive efforts since the Committee’s consideration of the initial report, including a number of reviews into the operation of child protection services in a number of States and significantly increased funding for initiatives targeted at high risk groups, the number of children in need of care and protection remains unacceptably high.
Presentation of Reports
MIKE SMITH, Permanent Representative of Australia to the United Nations Office at Geneva, said Australia had always taken, and continued to take, its obligations under the Convention and other human rights instruments with the utmost seriousness. The periodic report underlined its respect for its obligations, and its commitment to upholding the principles contained in the Convention. Australia had a federal constitutional system in which legislative, executive and judicial powers were shared or distributed between the Federal Government and those of the six States and two internal self-governing territories. Australian Governments at both a federal and state level were responding to compelling evidence that investment in early childhood was an effective and cost-effective strategy for improving outcomes for children both now and in the future. Australian Governments had also recognized the need for coordination of nation-wide activity to promote child development in Australia. Australian Governments were therefore finalizing a National Agenda for Early Childhood to better coordinate current child development activity in Australia and to guide future investment to ensure all children received the best possible start in life.
While some headway was being made, Mr. Smith said, indigenous children remained among the most disadvantaged children in Australian society. The Australian Government’s commitment to improving outcomes for these children was reflected in a new set of arrangements for the administration of indigenous affairs based on the principle of shared responsibility. The Government was also strongly committed to preventing exploitation of children, both in Australia and elsewhere. As a reflection of this commitment, the Australian Government had recently introduced several new changes to criminal laws to strengthen protection of children against trafficking, pornography and other offences.
As part of Australia’s orderly and managed migration and visa system, the comprehensive arrangements for detention of unauthorized arrivals and those who breached visa conditions had further developed such that, as of 29 July 2005, all families with children were moved from immigration detention facilities into the community. This was in line with a number of legislative changes to the Migration Act, which would ensure that the current immigration detention policy was administered with greater flexibility, fairness, and in a timelier manner. The overall intention of the package of amendments was to ensure that the best interests of children were taken into account. The family law reforms focused on shared parental responsibility and also addressed the specific needs of indigenous children in the family law system.
Questions by Experts
KAMEL FILALI, the Committee Expert acting as Country Rapporteur for the reports of Australia, said the presence of high-level dignitaries in the delegation showed the importance that Australia gave to the Convention and to the dialogue with the Committee. The current report was a good one, and followed the guidelines, and Australia was to be commended for having given due attention to some of the previous recommendations of the Committee. Regarding progress made, the Committee took note of the creation of family relationship centres, and of the national Plan of Action launched in 2000 against the sexual exploitation of children, among other things.
However, Mr. Filali said, he remained concerned by the fact that several of the previous recommendations of the Committee remained valid today, in particular the reservation that Australia had made to the Convention, in particular as the Committee continued to believe that this reservation was an obstacle to the implementation of the Convention; the application of the general principles such as that of non-discrimination or the superior interest of the child; and the treatment of asylum seekers. Regarding this last issue, Australia was one of the only countries in the world to apply a policy of obligatory detention of illegal immigrants, and this detention had no limits in time.
Mr. Filali also noted his concern for the fact that the Ministry of Children and Youth had been relegated to the status of a Parliamentary Secretary, and had a reduced budget. Further, it appeared that the Attorney General had the power to block any decisions of the Commission on Human Rights and Equal Opportunity. The police also appeared to hold excessive powers to stop children from going to specific places, which appeared to be contrary to the right to freedom of meeting and association, as recognized by the Convention.
Questions asked by other Committee Experts were on various topics, including the ratification of the two Optional Protocols to the Convention; did the State inform indigenous and refugee children of their rights, and whether children were in a position of being heard directly by a judge; the limited circumstances under which children could lose citizenship; and what the country was doing to respond to the significant number of suicides among the youth of the country.
One Expert also raised the issue of violence, inquiring whether there was a culture of violence in the country, and asked what Australia was doing to combat violence against children, in particular with regards to indigenous children. The issue of corporal punishment in schools was also raised in the context of violence and an Expert asked whether the awareness-raising on this topic requested by the Committee after the presentation of an earlier report had taken place.
The situation of indigenous children was also a topic on which many questions were asked, including the disparity between them and children of different ethnic origins in such areas as health, infant mortality and education. An Expert also asked whether there had been an assessment of the results of a programme covering indigenous children, and if so, what were the results of this assessment.
Response by the Delegation
Responding to these questions, the delegation gave information on how the Convention was implemented in Australia, saying that the Federal system gave responsibility for implementing the Convention to the Federal Government and that of the States and territories. The Government had a number of ministerial councils across a wide range of policies at which central Governments liased regularly with their counterparts in the States and Territories in order to have a coherent approach. The National Agenda for Early Childhood had been developed after close consultation among all levels of Government and would ensure that all children had the best possible start in life, with policies targeting their needs.
Economic assistance and support was provided directly to Australian families by the Federal Government, by way of direct payments and support for childcare. This amount was not at the discretion of State Governments to redistribute, as it was paid directly to families in order to provide the best possible environment conducive to the development of their children. Regarding the incorporation of the Convention into domestic law, Australia had implemented it with the same policy that it used on all international instruments that it had ratified. As for the application of the Convention in local courts, courts had a role in interpreting domestic law and applying it, where this was clear and unambiguous, but where legislation was passed that was specifically relevant to the rights covered by an international instrument, the court would have recourse to the international instrument to resolve any ambiguities or misunderstandings in national legislation, and would do so in order to ensure that rights recognized by that Convention were applied as per international standards.
The delegation explained the independent role of the Human Rights and Equal Opportunity Commission. It noted that the Commission's Human Rights Commissioner had responsibility for children’s rights, and had produced reports, including on children of asylum seekers, and was entering into dialogues with school-children on their perception of their rights. Committee Experts raised various other issues regarding the powers of the Federal Government in relation to the States and Territories, and with regards to the National Commission on Human Rights, to which the delegation responded briefly. The Government endeavoured to persuade States of the appropriate changes required to their programs and policies in the context of the application of the Convention, the delegation said, but the Experts should bear in mind the pressure that was brought by the populations of those States in that respect.
The Minister for Family and Community Affairs was a Cabinet Minister, allowing for greater focus and importance on the issues covering children and youth. Youth Affairs now had a position in the Cabinet and had an effective role, allowing for greater focus and importance on the issues covering children and youth. The Prime Minister had declared that early childhood development was a priority for the Government. In terms of dissemination, the Judicial College played a role in educating judges with regards to the human rights of children and the Convention.
The delegation also noted that there was data in the report that was disaggregated with regards to, among other things, HIV/AIDS by age. There were reviews underway in Australia with regards to children that would provide longitudinal and cross-sectional data in many fields including parenting, health, education, and childcare.
Australia was very close to ratifying the two Optional Protocols to the Convention. A number of laws both at the Government and at the State and Territory level had required amendment in order to be in compliance with the Protocols, in particular with regard to child pornography and trafficking. The domestic processes for formal treaty ratification were underway.
Responding to the issues raised on indigenous children, the delegation said Australia had a universal social security system, which provided generous support to those unable to work, as well as to the family benefits which were referred to earlier, a health system accessible to all, and an educational system with equal access. Indigenous people benefited from those systems as did other Australians. There were also a number of indigenous-specific programmes aimed at providing for the needs of that population. Australian Governments shared concerns on the continuing disparity in the conditions that confronted indigenous Australians, but believed that this was not due to ongoing or endemic discrimination, but was due to an interaction of a complex system of cultural, historic, and social factors. The Council of Australian Governments had reaffirmed its continuing commitment to enhancing reconciliation between indigenous and non-indigenous Australians, with a national framework of principles for Governmental delivery of services to indigenous Australians.
A more coherent or integrated Government approach was being worked for in order to provide for the needs of indigenous communities, the delegation said, and trials were being undertaken in order to identify policies which worked in order to improve engagement with indigenous communities. Reports had been published which reflected a new determination by the Australian Government to address the disadvantages undergone by indigenous persons. However, it was acknowledged that this could not be achieved quickly or easily, and required long-term commitment. The extent of the challenge remained evident in the data contained in the report. The gulf between indigenous and other Australians remained unacceptably high in many areas.
Questions by Experts
Committee Experts then raised various other issues, including what was being done to ensure that paid maternity leave was applied everywhere and whether breast-feeding was encouraged in all regions. Issues related to education received attention from several Experts, ranging from the price of day-care in nurseries; what was being done to ensure that indigenous children had continuing access to education in the context of repeated expulsions from schools; and whether courses on indigenous history were included in the school curriculum. Questions on corporal punishment in schools and legislation on this topic also continued to be posed by Experts.
Several experts also raised the topics of mental health, obesity, malnourishment and suicide among indigenous children, and one Expert asked whether studies had been done on this last phenomenon. Experts also asked for more details with regards to reports of the sterilization of children with disabilities.
Other questions were on the possibilities available for institutionalised children to keep ties with their families; issues of domestic violence, as indigenous children were over-represented in this field as well and issues linked to an apparent increase in child abuse; and what was the policy of the Government with regard to the “export” of children who had come to Australia and were placed in nearby host countries, and what was the status of the children in those countries.
Response by Delegation
Continuing to respond to the questions, the delegation of Australia said the new arrangements for the administration of aboriginal affairs had come into effect in 2004. The Aboriginal and Torres Strait Islander Commission had been abolished, as it had become out of touch with aboriginal concerns, and 30 indigenous coordination centres had been established across the country, forming a network. An indigenous advisory group to the Government had also been created, the National Indigenous Council; it was not a representative body, but provided advice to the Government. The Government was engaging with new representative bodies as they emerged in line with the preferences of aboriginal people themselves.
Regarding the notion of shared responsibility, the Government was undertaking agreements which spelt out what all partners would contribute to ensuring long-term outcomes that would improve the situation for indigenous communities, the delegation said, and this involved the communities themselves in planning for their future. Initially, the Government had been entering into quite simple agreements on this basis, many of them going into issues aimed at improving children’s health and attendance at school.
Indigenous children were over-represented in the institutions of the country, and this was due to various socio-economic factors, the delegation said. Where these children were placed in care outside their families, a principle was followed requiring that they were either placed first with their extended family, or if not possible within their indigenous community, and if this was not possible, within another indigenous community. Under-nutrition was a recognized problem, and the causes of it were multiple, including financial constraints and environmental and social conditions. There was an action plan that provided a number of strategies for addressing these factors.
Regarding the changes that had been made in immigration detention policy, these would give much more fairness, flexibility and timeliness to the situation of those who were waiting for a solution for their problem, the delegation said. All families with children were placed in community arrangements outside detainment centres. People had freedom of movement in the community, and welfare support was fully funded by the Australian Government. Non-governmental organizations had significantly assisted the Government in implementing the arrangements and ensuring a smooth transition. Health and education services were provided.
Legislative changes had been communicated to the courts on how the issue of asylum seekers was to now be treated, the delegation said. With regards to temporary protection visa holders, these had either had a further process for being assessed for permanent visas, or were in the process of doing so. This would give access to family reunion rights for those who gained that status. The arrangements for the placement of people in the community did not include for them to be placed in specific forms of group residency. The oversight of those people was in the hands of NGO groups which provided support.
Regarding the loss of citizenship, legislation was being reviewed, with major changes expected to ensure that children could not lose their citizenship without a ministerial decision, and that citizenship would not be removed if that would render the child stateless, the delegation said. Some sweeping changes to family law had recently been announced to ensure that the child’s best interest was given primacy. The best interests of the child were the focus of the new approach to divorce proceedings, for example, although the issue of shared parental responsibility was not allowed to expose the child to violence from any parent. Regarding the changed security environment of the world, Australia was working towards enhancing national security whilst protecting fundamental rights and freedoms, in particular those of children. Children under the age of 16 could not be questioned in the case of terrorist offences, among other criteria. Legislation ensured that while all possible was done to protect the Australian community from terrorist attacks, this was not done at the expense of children’s rights.
There were no provisions in legislation directed against particular groups of the community, the delegation said, and any attempts to link ordinary Muslims to these terrorist threats were to be condemned.
Experts then asked various questions and raised points with regard to the anti-terrorist legislation, pointing out the potential for abuse of this legislation. In response, the delegation said that anti-terrorist legislation contained special protections for children. In relation to family law, all children who came through the court system were spoken to by a counsellor, who also spoke to the parents, and who could put the child’s views to the court without putting the child on the stand. A separate representative advocated for the rights and interests of the child in situations of divorce or family law. The Government recognized that there was a clear difference between the best interests of the child and the views of the child, and aimed to allow for both to be given voice.
Governments at both the Australian and State and Territory level put considerable resources into providing assistance to parents to assist them in dealing in the most effective and cooperative way with the entire gamut of the relationship between the parent and the child, the delegation said, and this included nutrition, education and supporting parental skills including communication between parents and their children in order to determine their needs and views. There was a Youth Round Table, which discussed issues that had an impact on youth, and the aim was to have a diverse group of youths on the Table so that a significant variety of experiences and viewpoints were demonstrated.
On a question regarding the family environment and alternative care, the delegation said support for early childhood was a key national Government policy, with the aim of helping families to provide a safe and caring family environment whilst balancing work and familial responsibilities. Concerning the issue of maternity leave and whether mothers could engage with their families whilst not losing their chances in the workforce, 52 weeks of unpaid parental leave were allowed. Since July 2004, all women who gave birth or adopted were entitled to a maternity payment, an amount equivalent to approximately 12 weeks of parenting payment, and it was an equivalent social benefit to paid leave.
On family violence and its impact on children, the delegation said that the Australian Government placed substantial importance on resolving the issue and it had numerous programmes to deal with it. Also, a new Women’s Safety Agenda had been announced to address domestic violence and sexual assault. The Government funded a national community crime prevention programme, which provided funding for grassroots movements working towards, among other things, preventing domestic violence. All of the family law arrangements concerning children were applicable to parents who were not legally married.
With regard to child protection issues, a commitment had been made to developing a national approach, the delegation said. Interest had been expressed in how the family courts and state and territorial courts had liased, and a project had been implemented providing intensive case management of any case involving children where there were allegations of physical or sexual abuse. The Government was currently supporting the roll-out of this programme nationally. Regarding children in institutions, only 4 per cent of children were in institutional/residential care, and this was mostly for children with complex needs that could not be met in foster care, or for large groups of siblings who needed to be kept together.
Regarding the subject of childcare and its costs, the Government was increasing the number of places, and was conscious of the need to continue to provide these to ensure that women’s workforce participation was not impeded. A 30 per cent rebate on the cost of childcare was also provided to help families cover it. Corporal punishment was prohibited in all Government schools, and in some states also in non-Governmental schools. While individual non-government schools determined their own policies, corporal punishment was viewed as a last-resort measure to only be applied under the gravest of circumstances. Outside of schools, while the rules were diverse among the States, at least one jurisdiction had codified what did not count as reasonable correction.
A question was posed by an Expert on whether there was awareness-raising in Australia on the effects of corporal punishment and whether parents and teachers were informed of the negative effects of it in the context of a campaign, and the delegation responded that Australian agencies had a range of information available for parents with the aim of enhancing their parenting skills, and this included information on managing conflict within the family and dealing appropriately with demands and behaviour from children.
Responding to further questions on whether the Government was doing anything to get rid of corporal punishment on a legal basis, and whether the Government recognized different types of punishment such as psychological, the delegation said there was a need for and already was an extensive community debate on discipline and the appropriate means for managing it within the family. The Government was of the opinion that prohibiting corporal punishment without the approval of the community would not be the most effective means for this. There was considerable repugnance for child abuse throughout the community, and therefore it was expected for the issue to continue to progress.
Continuing on the field of health, the delegation said the Australian Government was concerned at the rate of the spread of sexually transmitted infections, and had launched its first national strategy on this topic in June 2005. The Government had also spent substantial funds on obesity and malnutrition research in order to develop guidelines so that all young persons and children had access to information on their needs with the aim of improving the nutritional health of all Australians. There were also breast-feeding promotion initiatives with the aim of educating mothers and counsellors about the advantages of breast-feeding. Commitment to breast-feeding among Australian mothers remained high, and the Government supported and encouraged women to breast-feed in order to give their children that important start in life.
With regards to mental health and the availability of resources to children and young people and the issue of suicide, the delegation said the Government had a wide range of strategies on mental health, including on children, as well as those who also had drug and alcohol problems. There was a national plan recognising the importance of mental health issues, and this from infancy, and it specifically focused on strengthening interaction in relevant other sectors of Government including housing and social welfare. Health services and programmes catered for all people at all stages of their lives.
On suicide in particular, the delegation said Australia had had encouraging results in reducing youth suicide through a national strategy. Suicide rates had declined significantly, but the Government remained committed to continuing to strengthen the resilience of young people and to address risk and protective factors for youth, thus continuing its fight against the phenomenon of suicide. The aims of the national suicide prevention strategy were to reduce all forms of suicidal behaviour, and to enhance resilience, respect and mental health in young people, families and communities, and many others including a community-wide approach sensitising all to the factors surrounding suicide. The delegation also explained that the disparity in figures between male and female suicides was due to the fact that women more frequently did not succeed in their suicide attempts, when compared to attempts by men.
States and Territories as well as the Government had a range of alcohol and other drug prevention and sensitisation services for youth and other population groups in order to address substance and alcohol abuse across the country, the delegation said. On the sterilisation of people with disabilities, the Government had been very proactive to ensure appropriate decision-making, and considered illicit sterilisation as a very serious matter. There was a nationally consistent approach to the lawful sterilisation of minors with a decision-making disability. Students with disabilities were also covered by programmes with the aim of balancing their needs with those of the education provider.
The delegation also clarified the issue of the minimum age of criminal responsibility, pointing out that the child’s individual capacities were taken into account between the ages of ten and fourteen. An Expert asked why this was a special category, and the delegation said for children under 10, criminal law did not recognise the child’s capacity of understanding their act. Between 10 and 14, there was a refutable presumption against criminal responsibility, and it depended on the individual capacities of the child to understand the meaning of their action before they could come within criminal law. There was an unacceptably high rate of indigenous children in detention, the delegation said, but the news on this topic was not all bad as there had been a significant decline in the rate over the last ten years.
On the reservation of Australia to article 37 of the Convention, the delegation said this related to the physical and geographical particularities of the country, which meant that in rural and remote areas it was not feasible to have separate detention facilities for adults and children. The Government believed it was more appropriate for juvenile detainees to be able to retain contact with their families. Experts in response urged the delegation to narrow their reservation down in this respect so that it only covered this particular point.
Preliminary Concluding Remarks
JEAN ZERMATTEN, Committee Expert serving as co-Country Rapporteur for the reports, speaking in preliminary concluding remarks, thanked the delegation for having answered the questions. Today’s dialogue had made it possible for the Committee to ask a number of questions that had remained pending and to obtain more information, as well as to allow the State party to express its opinion. The delegation was thanked for its openness and precise work, and the State party was to be congratulated on the number of recent legislative amendments it had undertaken, including the spectacular change made to legislation in the area of immigration. When it came to the setting up of new bodies, including the ministerial task force on indigenous matters, the State party was to be commended.
A new direction had been taken in terms of family policy and stronger families and communities, Mr. Zermatten said. All these recent efforts bore witness to the interest attached by the State party in children, including those affected by the policies of the family and of the State. It was the wish of the Committee that the State Party would make a commitment soon with regards to treaties, and would reduce its reservation to article 37 of the Convention. It was hoped the two Optional Protocols would be ratified soon. The situation needed to be improved in at least two items, particularly with regards to the disadvantage of indigenous children, as this was a source of concern for the Government, and for the status of refugee and asylum-seeking children, although a lot of progress had been made in this area in particular.
MIKE SMITH, Permanent Representative of Australia to the United Nations Office at Geneva, expressed the appreciation of the delegation for the spirit in which the dialogue had been held, and for its productive and constructive approach. If all treaty bodies were to adopt this approach, then there would be far fewer problems in the treaty body system. That the Committee had recognised areas where Australia had done well was appreciated, and that it had suggested constructive methods had strengthened the recommendations that had and would be made. It was an important role of the Committees to take note of such things and to pass them on to other States when they were appearing before the bodies. In areas where the Committee continued to have concerns, it was hoped that the information provided today would convince it that all the Australian Governments were committed to resolving these issues. Positive trends would continue to be accelerated, and work towards protecting the rights of children would continue.
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This press release is not an official record and is provided for public information only.
Rights of the Child
13 September 2005
The Committee on the Rights of the Child this morning took up the second and third periodic reports of Australia on how that country implements the provisions of the Convention on the Rights of the Child.
Presenting the reports, Mike Smith, Permanent Representative of Australia to the United Nations Office at Geneva, said they underlined Australia’s respect for its obligations, and its commitment to upholding the principles contained in the Convention. Australian Governments were responding to compelling evidence that investment in early childhood was an effective and cost-effective strategy for improving outcomes for children both now and in the future, and recognized the need for coordination of nation-wide activity to promote child development in the country. Family law reforms, which were announced in July 2005, would facilitate shared parenting, consistent with the best interest of the child, and would also address the specific needs of indigenous children in the family law system. Further developments in immigration detention policy, particularly the movement of families with children out of detention facilities into the community, ensured that the current immigration detention policy was administered with greater flexibility, fairness, and in a timelier manner.
Issues raised by Committee Experts, including Kamel Filali who served as Country Rapporteur for the reports, concerned the Government's global policy on children and families, and the role of the Human Rights and Equal Opportunities Commission as well as questions on health and education. Questions were asked on the disparity between indigenous children and non indigenous children in such areas as health, infant mortality and education. Other questions included what the country was doing to respond to the significant number of suicides among the youth of the country. Several Experts also raised the topics of mental health, obesity, malnourishment and suicide among indigenous children, and one Expert asked whether studies had been done on this last phenomenon.
In preliminary concluding remarks, Jean Zermatten, the Committee Expert serving as co-Country Rapporteur for the reports, said a new direction had been taken in Australia in terms of family policy and stronger families and communities. All these recent efforts bore witness to the interest attached by the State party in children, including those affected by the policies of the family and of the State. It was hoped the two Optional Protocols would be ratified soon. The situation needed to be improved in at least two items, particularly with regards to the disadvantages of indigenous children, as this was a source of concern for the Government, and for the status of refugee and asylum-seeking children, although a lot of progress had been made in this area in particular.
The delegation of Australia included representatives of the Attorney General’s Department, the Office of Indigenous Policy Coordination, the Department of Immigration and Multicultural and Indigenous Affairs, and the Department of Family and Community Services.
The Committee will issue its final observations and recommendations on the reports of Australia at the end of the session which will conclude on 30 September. The Committee will reconvene on Wednesday, 14 September at 10 a.m. when it will take up the second periodic report of Algeria (CRC/C/93/Add.7).
Reports of Australia
The second and third periodic reports of Australia (CRC/C/129/Add.4) demonstrate the special place that children hold in Australian society. High levels of effort and resources are committed to ensuring that Australian children are able to reach their full potential and that the rights to be found in the Convention are available to them. Most Australian children enjoy lower infant mortality rates, better health, higher educational outcomes and greater leisure opportunities than their counterparts in many other countries.
The reports show that Australian Governments have continued to seek opportunities to improve the implementation of the Convention on the Rights of the Child in Australia. One of the main achievements in the period covered by the reports has been the increased coordination of policies and monitoring mechanisms for children. The Convention is implemented by nine governments, each of which develop initiatives to implement the Convention that best meet the needs of their respective jurisdictions, which means that the Convention is implemented in a variety of ways across the country. This means that there will never be complete consistency in the manner in which it is implemented, but this is not required to implement the Convention. The report also demonstrates Australia’s commitment to children outside of Australia.
Despite the efforts on behalf of children, significant challenges remain, the reports say. Australian Governments continue to address the needs of indigenous children, particularly in the areas of health, education, family violence and the juvenile justice system; yet indigenous children continue to suffer disadvantage in these areas, compared with non-indigenous children. The child protection system is another area of concern, as despite extensive efforts since the Committee’s consideration of the initial report, including a number of reviews into the operation of child protection services in a number of States and significantly increased funding for initiatives targeted at high risk groups, the number of children in need of care and protection remains unacceptably high.
Presentation of Reports
MIKE SMITH, Permanent Representative of Australia to the United Nations Office at Geneva, said Australia had always taken, and continued to take, its obligations under the Convention and other human rights instruments with the utmost seriousness. The periodic report underlined its respect for its obligations, and its commitment to upholding the principles contained in the Convention. Australia had a federal constitutional system in which legislative, executive and judicial powers were shared or distributed between the Federal Government and those of the six States and two internal self-governing territories. Australian Governments at both a federal and state level were responding to compelling evidence that investment in early childhood was an effective and cost-effective strategy for improving outcomes for children both now and in the future. Australian Governments had also recognized the need for coordination of nation-wide activity to promote child development in Australia. Australian Governments were therefore finalizing a National Agenda for Early Childhood to better coordinate current child development activity in Australia and to guide future investment to ensure all children received the best possible start in life.
While some headway was being made, Mr. Smith said, indigenous children remained among the most disadvantaged children in Australian society. The Australian Government’s commitment to improving outcomes for these children was reflected in a new set of arrangements for the administration of indigenous affairs based on the principle of shared responsibility. The Government was also strongly committed to preventing exploitation of children, both in Australia and elsewhere. As a reflection of this commitment, the Australian Government had recently introduced several new changes to criminal laws to strengthen protection of children against trafficking, pornography and other offences.
As part of Australia’s orderly and managed migration and visa system, the comprehensive arrangements for detention of unauthorized arrivals and those who breached visa conditions had further developed such that, as of 29 July 2005, all families with children were moved from immigration detention facilities into the community. This was in line with a number of legislative changes to the Migration Act, which would ensure that the current immigration detention policy was administered with greater flexibility, fairness, and in a timelier manner. The overall intention of the package of amendments was to ensure that the best interests of children were taken into account. The family law reforms focused on shared parental responsibility and also addressed the specific needs of indigenous children in the family law system.
Questions by Experts
KAMEL FILALI, the Committee Expert acting as Country Rapporteur for the reports of Australia, said the presence of high-level dignitaries in the delegation showed the importance that Australia gave to the Convention and to the dialogue with the Committee. The current report was a good one, and followed the guidelines, and Australia was to be commended for having given due attention to some of the previous recommendations of the Committee. Regarding progress made, the Committee took note of the creation of family relationship centres, and of the national Plan of Action launched in 2000 against the sexual exploitation of children, among other things.
However, Mr. Filali said, he remained concerned by the fact that several of the previous recommendations of the Committee remained valid today, in particular the reservation that Australia had made to the Convention, in particular as the Committee continued to believe that this reservation was an obstacle to the implementation of the Convention; the application of the general principles such as that of non-discrimination or the superior interest of the child; and the treatment of asylum seekers. Regarding this last issue, Australia was one of the only countries in the world to apply a policy of obligatory detention of illegal immigrants, and this detention had no limits in time.
Mr. Filali also noted his concern for the fact that the Ministry of Children and Youth had been relegated to the status of a Parliamentary Secretary, and had a reduced budget. Further, it appeared that the Attorney General had the power to block any decisions of the Commission on Human Rights and Equal Opportunity. The police also appeared to hold excessive powers to stop children from going to specific places, which appeared to be contrary to the right to freedom of meeting and association, as recognized by the Convention.
Questions asked by other Committee Experts were on various topics, including the ratification of the two Optional Protocols to the Convention; did the State inform indigenous and refugee children of their rights, and whether children were in a position of being heard directly by a judge; the limited circumstances under which children could lose citizenship; and what the country was doing to respond to the significant number of suicides among the youth of the country.
One Expert also raised the issue of violence, inquiring whether there was a culture of violence in the country, and asked what Australia was doing to combat violence against children, in particular with regards to indigenous children. The issue of corporal punishment in schools was also raised in the context of violence and an Expert asked whether the awareness-raising on this topic requested by the Committee after the presentation of an earlier report had taken place.
The situation of indigenous children was also a topic on which many questions were asked, including the disparity between them and children of different ethnic origins in such areas as health, infant mortality and education. An Expert also asked whether there had been an assessment of the results of a programme covering indigenous children, and if so, what were the results of this assessment.
Response by the Delegation
Responding to these questions, the delegation gave information on how the Convention was implemented in Australia, saying that the Federal system gave responsibility for implementing the Convention to the Federal Government and that of the States and territories. The Government had a number of ministerial councils across a wide range of policies at which central Governments liased regularly with their counterparts in the States and Territories in order to have a coherent approach. The National Agenda for Early Childhood had been developed after close consultation among all levels of Government and would ensure that all children had the best possible start in life, with policies targeting their needs.
Economic assistance and support was provided directly to Australian families by the Federal Government, by way of direct payments and support for childcare. This amount was not at the discretion of State Governments to redistribute, as it was paid directly to families in order to provide the best possible environment conducive to the development of their children. Regarding the incorporation of the Convention into domestic law, Australia had implemented it with the same policy that it used on all international instruments that it had ratified. As for the application of the Convention in local courts, courts had a role in interpreting domestic law and applying it, where this was clear and unambiguous, but where legislation was passed that was specifically relevant to the rights covered by an international instrument, the court would have recourse to the international instrument to resolve any ambiguities or misunderstandings in national legislation, and would do so in order to ensure that rights recognized by that Convention were applied as per international standards.
The delegation explained the independent role of the Human Rights and Equal Opportunity Commission. It noted that the Commission's Human Rights Commissioner had responsibility for children’s rights, and had produced reports, including on children of asylum seekers, and was entering into dialogues with school-children on their perception of their rights. Committee Experts raised various other issues regarding the powers of the Federal Government in relation to the States and Territories, and with regards to the National Commission on Human Rights, to which the delegation responded briefly. The Government endeavoured to persuade States of the appropriate changes required to their programs and policies in the context of the application of the Convention, the delegation said, but the Experts should bear in mind the pressure that was brought by the populations of those States in that respect.
The Minister for Family and Community Affairs was a Cabinet Minister, allowing for greater focus and importance on the issues covering children and youth. Youth Affairs now had a position in the Cabinet and had an effective role, allowing for greater focus and importance on the issues covering children and youth. The Prime Minister had declared that early childhood development was a priority for the Government. In terms of dissemination, the Judicial College played a role in educating judges with regards to the human rights of children and the Convention.
The delegation also noted that there was data in the report that was disaggregated with regards to, among other things, HIV/AIDS by age. There were reviews underway in Australia with regards to children that would provide longitudinal and cross-sectional data in many fields including parenting, health, education, and childcare.
Australia was very close to ratifying the two Optional Protocols to the Convention. A number of laws both at the Government and at the State and Territory level had required amendment in order to be in compliance with the Protocols, in particular with regard to child pornography and trafficking. The domestic processes for formal treaty ratification were underway.
Responding to the issues raised on indigenous children, the delegation said Australia had a universal social security system, which provided generous support to those unable to work, as well as to the family benefits which were referred to earlier, a health system accessible to all, and an educational system with equal access. Indigenous people benefited from those systems as did other Australians. There were also a number of indigenous-specific programmes aimed at providing for the needs of that population. Australian Governments shared concerns on the continuing disparity in the conditions that confronted indigenous Australians, but believed that this was not due to ongoing or endemic discrimination, but was due to an interaction of a complex system of cultural, historic, and social factors. The Council of Australian Governments had reaffirmed its continuing commitment to enhancing reconciliation between indigenous and non-indigenous Australians, with a national framework of principles for Governmental delivery of services to indigenous Australians.
A more coherent or integrated Government approach was being worked for in order to provide for the needs of indigenous communities, the delegation said, and trials were being undertaken in order to identify policies which worked in order to improve engagement with indigenous communities. Reports had been published which reflected a new determination by the Australian Government to address the disadvantages undergone by indigenous persons. However, it was acknowledged that this could not be achieved quickly or easily, and required long-term commitment. The extent of the challenge remained evident in the data contained in the report. The gulf between indigenous and other Australians remained unacceptably high in many areas.
Questions by Experts
Committee Experts then raised various other issues, including what was being done to ensure that paid maternity leave was applied everywhere and whether breast-feeding was encouraged in all regions. Issues related to education received attention from several Experts, ranging from the price of day-care in nurseries; what was being done to ensure that indigenous children had continuing access to education in the context of repeated expulsions from schools; and whether courses on indigenous history were included in the school curriculum. Questions on corporal punishment in schools and legislation on this topic also continued to be posed by Experts.
Several experts also raised the topics of mental health, obesity, malnourishment and suicide among indigenous children, and one Expert asked whether studies had been done on this last phenomenon. Experts also asked for more details with regards to reports of the sterilization of children with disabilities.
Other questions were on the possibilities available for institutionalised children to keep ties with their families; issues of domestic violence, as indigenous children were over-represented in this field as well and issues linked to an apparent increase in child abuse; and what was the policy of the Government with regard to the “export” of children who had come to Australia and were placed in nearby host countries, and what was the status of the children in those countries.
Response by Delegation
Continuing to respond to the questions, the delegation of Australia said the new arrangements for the administration of aboriginal affairs had come into effect in 2004. The Aboriginal and Torres Strait Islander Commission had been abolished, as it had become out of touch with aboriginal concerns, and 30 indigenous coordination centres had been established across the country, forming a network. An indigenous advisory group to the Government had also been created, the National Indigenous Council; it was not a representative body, but provided advice to the Government. The Government was engaging with new representative bodies as they emerged in line with the preferences of aboriginal people themselves.
Regarding the notion of shared responsibility, the Government was undertaking agreements which spelt out what all partners would contribute to ensuring long-term outcomes that would improve the situation for indigenous communities, the delegation said, and this involved the communities themselves in planning for their future. Initially, the Government had been entering into quite simple agreements on this basis, many of them going into issues aimed at improving children’s health and attendance at school.
Indigenous children were over-represented in the institutions of the country, and this was due to various socio-economic factors, the delegation said. Where these children were placed in care outside their families, a principle was followed requiring that they were either placed first with their extended family, or if not possible within their indigenous community, and if this was not possible, within another indigenous community. Under-nutrition was a recognized problem, and the causes of it were multiple, including financial constraints and environmental and social conditions. There was an action plan that provided a number of strategies for addressing these factors.
Regarding the changes that had been made in immigration detention policy, these would give much more fairness, flexibility and timeliness to the situation of those who were waiting for a solution for their problem, the delegation said. All families with children were placed in community arrangements outside detainment centres. People had freedom of movement in the community, and welfare support was fully funded by the Australian Government. Non-governmental organizations had significantly assisted the Government in implementing the arrangements and ensuring a smooth transition. Health and education services were provided.
Legislative changes had been communicated to the courts on how the issue of asylum seekers was to now be treated, the delegation said. With regards to temporary protection visa holders, these had either had a further process for being assessed for permanent visas, or were in the process of doing so. This would give access to family reunion rights for those who gained that status. The arrangements for the placement of people in the community did not include for them to be placed in specific forms of group residency. The oversight of those people was in the hands of NGO groups which provided support.
Regarding the loss of citizenship, legislation was being reviewed, with major changes expected to ensure that children could not lose their citizenship without a ministerial decision, and that citizenship would not be removed if that would render the child stateless, the delegation said. Some sweeping changes to family law had recently been announced to ensure that the child’s best interest was given primacy. The best interests of the child were the focus of the new approach to divorce proceedings, for example, although the issue of shared parental responsibility was not allowed to expose the child to violence from any parent. Regarding the changed security environment of the world, Australia was working towards enhancing national security whilst protecting fundamental rights and freedoms, in particular those of children. Children under the age of 16 could not be questioned in the case of terrorist offences, among other criteria. Legislation ensured that while all possible was done to protect the Australian community from terrorist attacks, this was not done at the expense of children’s rights.
There were no provisions in legislation directed against particular groups of the community, the delegation said, and any attempts to link ordinary Muslims to these terrorist threats were to be condemned.
Experts then asked various questions and raised points with regard to the anti-terrorist legislation, pointing out the potential for abuse of this legislation. In response, the delegation said that anti-terrorist legislation contained special protections for children. In relation to family law, all children who came through the court system were spoken to by a counsellor, who also spoke to the parents, and who could put the child’s views to the court without putting the child on the stand. A separate representative advocated for the rights and interests of the child in situations of divorce or family law. The Government recognized that there was a clear difference between the best interests of the child and the views of the child, and aimed to allow for both to be given voice.
Governments at both the Australian and State and Territory level put considerable resources into providing assistance to parents to assist them in dealing in the most effective and cooperative way with the entire gamut of the relationship between the parent and the child, the delegation said, and this included nutrition, education and supporting parental skills including communication between parents and their children in order to determine their needs and views. There was a Youth Round Table, which discussed issues that had an impact on youth, and the aim was to have a diverse group of youths on the Table so that a significant variety of experiences and viewpoints were demonstrated.
On a question regarding the family environment and alternative care, the delegation said support for early childhood was a key national Government policy, with the aim of helping families to provide a safe and caring family environment whilst balancing work and familial responsibilities. Concerning the issue of maternity leave and whether mothers could engage with their families whilst not losing their chances in the workforce, 52 weeks of unpaid parental leave were allowed. Since July 2004, all women who gave birth or adopted were entitled to a maternity payment, an amount equivalent to approximately 12 weeks of parenting payment, and it was an equivalent social benefit to paid leave.
On family violence and its impact on children, the delegation said that the Australian Government placed substantial importance on resolving the issue and it had numerous programmes to deal with it. Also, a new Women’s Safety Agenda had been announced to address domestic violence and sexual assault. The Government funded a national community crime prevention programme, which provided funding for grassroots movements working towards, among other things, preventing domestic violence. All of the family law arrangements concerning children were applicable to parents who were not legally married.
With regard to child protection issues, a commitment had been made to developing a national approach, the delegation said. Interest had been expressed in how the family courts and state and territorial courts had liased, and a project had been implemented providing intensive case management of any case involving children where there were allegations of physical or sexual abuse. The Government was currently supporting the roll-out of this programme nationally. Regarding children in institutions, only 4 per cent of children were in institutional/residential care, and this was mostly for children with complex needs that could not be met in foster care, or for large groups of siblings who needed to be kept together.
Regarding the subject of childcare and its costs, the Government was increasing the number of places, and was conscious of the need to continue to provide these to ensure that women’s workforce participation was not impeded. A 30 per cent rebate on the cost of childcare was also provided to help families cover it. Corporal punishment was prohibited in all Government schools, and in some states also in non-Governmental schools. While individual non-government schools determined their own policies, corporal punishment was viewed as a last-resort measure to only be applied under the gravest of circumstances. Outside of schools, while the rules were diverse among the States, at least one jurisdiction had codified what did not count as reasonable correction.
A question was posed by an Expert on whether there was awareness-raising in Australia on the effects of corporal punishment and whether parents and teachers were informed of the negative effects of it in the context of a campaign, and the delegation responded that Australian agencies had a range of information available for parents with the aim of enhancing their parenting skills, and this included information on managing conflict within the family and dealing appropriately with demands and behaviour from children.
Responding to further questions on whether the Government was doing anything to get rid of corporal punishment on a legal basis, and whether the Government recognized different types of punishment such as psychological, the delegation said there was a need for and already was an extensive community debate on discipline and the appropriate means for managing it within the family. The Government was of the opinion that prohibiting corporal punishment without the approval of the community would not be the most effective means for this. There was considerable repugnance for child abuse throughout the community, and therefore it was expected for the issue to continue to progress.
Continuing on the field of health, the delegation said the Australian Government was concerned at the rate of the spread of sexually transmitted infections, and had launched its first national strategy on this topic in June 2005. The Government had also spent substantial funds on obesity and malnutrition research in order to develop guidelines so that all young persons and children had access to information on their needs with the aim of improving the nutritional health of all Australians. There were also breast-feeding promotion initiatives with the aim of educating mothers and counsellors about the advantages of breast-feeding. Commitment to breast-feeding among Australian mothers remained high, and the Government supported and encouraged women to breast-feed in order to give their children that important start in life.
With regards to mental health and the availability of resources to children and young people and the issue of suicide, the delegation said the Government had a wide range of strategies on mental health, including on children, as well as those who also had drug and alcohol problems. There was a national plan recognising the importance of mental health issues, and this from infancy, and it specifically focused on strengthening interaction in relevant other sectors of Government including housing and social welfare. Health services and programmes catered for all people at all stages of their lives.
On suicide in particular, the delegation said Australia had had encouraging results in reducing youth suicide through a national strategy. Suicide rates had declined significantly, but the Government remained committed to continuing to strengthen the resilience of young people and to address risk and protective factors for youth, thus continuing its fight against the phenomenon of suicide. The aims of the national suicide prevention strategy were to reduce all forms of suicidal behaviour, and to enhance resilience, respect and mental health in young people, families and communities, and many others including a community-wide approach sensitising all to the factors surrounding suicide. The delegation also explained that the disparity in figures between male and female suicides was due to the fact that women more frequently did not succeed in their suicide attempts, when compared to attempts by men.
States and Territories as well as the Government had a range of alcohol and other drug prevention and sensitisation services for youth and other population groups in order to address substance and alcohol abuse across the country, the delegation said. On the sterilisation of people with disabilities, the Government had been very proactive to ensure appropriate decision-making, and considered illicit sterilisation as a very serious matter. There was a nationally consistent approach to the lawful sterilisation of minors with a decision-making disability. Students with disabilities were also covered by programmes with the aim of balancing their needs with those of the education provider.
The delegation also clarified the issue of the minimum age of criminal responsibility, pointing out that the child’s individual capacities were taken into account between the ages of ten and fourteen. An Expert asked why this was a special category, and the delegation said for children under 10, criminal law did not recognise the child’s capacity of understanding their act. Between 10 and 14, there was a refutable presumption against criminal responsibility, and it depended on the individual capacities of the child to understand the meaning of their action before they could come within criminal law. There was an unacceptably high rate of indigenous children in detention, the delegation said, but the news on this topic was not all bad as there had been a significant decline in the rate over the last ten years.
On the reservation of Australia to article 37 of the Convention, the delegation said this related to the physical and geographical particularities of the country, which meant that in rural and remote areas it was not feasible to have separate detention facilities for adults and children. The Government believed it was more appropriate for juvenile detainees to be able to retain contact with their families. Experts in response urged the delegation to narrow their reservation down in this respect so that it only covered this particular point.
Preliminary Concluding Remarks
JEAN ZERMATTEN, Committee Expert serving as co-Country Rapporteur for the reports, speaking in preliminary concluding remarks, thanked the delegation for having answered the questions. Today’s dialogue had made it possible for the Committee to ask a number of questions that had remained pending and to obtain more information, as well as to allow the State party to express its opinion. The delegation was thanked for its openness and precise work, and the State party was to be congratulated on the number of recent legislative amendments it had undertaken, including the spectacular change made to legislation in the area of immigration. When it came to the setting up of new bodies, including the ministerial task force on indigenous matters, the State party was to be commended.
A new direction had been taken in terms of family policy and stronger families and communities, Mr. Zermatten said. All these recent efforts bore witness to the interest attached by the State party in children, including those affected by the policies of the family and of the State. It was the wish of the Committee that the State Party would make a commitment soon with regards to treaties, and would reduce its reservation to article 37 of the Convention. It was hoped the two Optional Protocols would be ratified soon. The situation needed to be improved in at least two items, particularly with regards to the disadvantage of indigenous children, as this was a source of concern for the Government, and for the status of refugee and asylum-seeking children, although a lot of progress had been made in this area in particular.
MIKE SMITH, Permanent Representative of Australia to the United Nations Office at Geneva, expressed the appreciation of the delegation for the spirit in which the dialogue had been held, and for its productive and constructive approach. If all treaty bodies were to adopt this approach, then there would be far fewer problems in the treaty body system. That the Committee had recognised areas where Australia had done well was appreciated, and that it had suggested constructive methods had strengthened the recommendations that had and would be made. It was an important role of the Committees to take note of such things and to pass them on to other States when they were appearing before the bodies. In areas where the Committee continued to have concerns, it was hoped that the information provided today would convince it that all the Australian Governments were committed to resolving these issues. Positive trends would continue to be accelerated, and work towards protecting the rights of children would continue.
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