Committee on the Rights of the Child hears report of Australia

5 June 2012

The Committee on the Rights of the Child this morning concluded its review of the fourth periodic report of Australia on its implementation of the provisions of the Convention on the Rights of the Child.

Introducing the report, Peter Woolcott, Permanent Representative of Australia to the United Nations Office at Geneva, said that Australia had made considerable progress in improving its national approach to protecting and promoting children’s rights since 2008. This included the institution of the National Children’s Commissioner, introduction of the first national paid parental leave, legal reform to strengthen penalties for child exploitation offences, and the expansion of community-based accommodation for children asylum-seekers. Australia worked with States and Territories, civil society, families and communities to try innovative approaches and break the cycles of disadvantage and inequality faced by children, particularly indigenous children and children in out-of-home care.

Marta Mauras, Committee Expert acting as Rapporteur for the report of Australia, welcomed the intention of this country to increase its official development assistance to 0.5 per cent of the gross national product in 2015-2016 and commended the National Plan Against Violence 2010-2022 which had a considerable preventative approach particularly in dismantling attitudes and behaviours and in the action to reduce gender inequalities. Ms. Mauras voiced the concerns of the Committee regarding handling of budgetary resources for childhood issues and the activities of Australian mining companies which had been accused of complicity in human rights violations, for example in the Democratic Republic of the Congo and in Fiji.

Hiranthi Wijemanne, Committee Expert acting as Co-Rapporteur for the report of Australia, said that corporal punishment seemed to still happen inside homes, school and institutions of residential and foster care, while there was no national legislation protecting children from that form of violence.

Other Experts asked the delegation about coordination in the context of Federal Government, measures to reduce discrimination against and the disadvantage in health and education of the Aboriginal and Torres Straight Islander populations, children asylum-seekers, early childhood development, support to children with disabilities, and the system of juvenile justice in Australia.

The Committee and delegation will make concluding remarks on the review of the report of Australia under the Convention on the Rights of the Child at the end of the meeting this afternoon after it considers Australia’s initial report on the Optional Protocol on the sale of children, child prostitution and child pornography and the Optional Protocol on the involvement of children in armed conflict. The Committee’s concluding observations and recommendations on the three reports will be released towards the end of the session, which will conclude on 15 June 2012.

The delegation of Australia included representatives of the Department of Attorney-General, Department of Families, Housing, Community Services and Indigenous Affairs, Department of Immigration and Citizenship, Department of Education, Employment and Workplace Relations, Department of Defence and the Permanent Mission of Australia to the United Nations Office at Geneva.

The Committee will resume its work at 3 p.m. when it will examine Australia’s initial reports on the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (CRC/C/OPSC/AUS/1) and on the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (CRC/C/OPAC/AUS/1).

Report

The fourth periodic report of Australia can be read here: (CRC/C/AUS/4).

Presentation of the Report

PETER WOOLCOTT, Permanent Representative of Australia to the United Nations Office at Geneva, said that Australia had made considerable progress in improving its national approach to protecting and promoting children’s rights. There had been strong cooperation between all levels of Government and civil society. Australia was committed to using its 2010 Human Rights Framework as a working tool to protect and promote children’s rights. The nine Governments in Australia shared responsibility in implementation of the Convention. The Government worked closely with State and Territory governments to further develop cooperative and coordinated approaches to improving children’s well-being. The Government also worked closely with the Australian Human Rights Commission and with the civil society, whose shadow report indicated that some children faced barriers to full participation in the community and that those were disproportionately borne by children with disability, Aboriginal and Torres Straight Islands children, children in remote areas and children from families experiencing stress or breakdown. The Government had announced the institution of the National Children’s Commissioner in April 2012, who would be a member on the Australian Human Rights Commission and would be empowered to focus on children facing particular disadvantages or vulnerabilities. The Government had instituted the first national paid parental leave in January 2011 which provided parents, usually mothers, with 18 weeks paid leave to bond with babies and establish breastfeeding.

Australia planned to fundamentally reform disability care and support and had committed to increase spending and to develop an approach to providing services and funding in a way that gave persons with disabilities the power to make their own decisions and participate in the community. In 2010, Australia had reformed laws to strengthen penalties for child exploitation offences such as slavery and sex tourism. Changes had been made to the treatment of children who arrived to Australia without documentation, including the expansion of community-based accommodation in October 2011. Australia remained concerned at the rates of children in out-of-home care and acknowledged difficulties they faced, and that indigenous children were disproportionately entering the juvenile justice system and the disruption this caused to their education, relationships and future. Australia worked with States and Territories, civil society, families and communities to try innovative approaches, to try and break the cycles of disadvantage and inequality faced by children. Further, Australia was committed to developing an anti-racism strategy, to improving the cultural awareness of police, public officials and the community, and to public health and education programmes in areas such as child health and development, suicide prevention, HIV prevention and substance abuse.

Questions by Experts

MARTA MAURAS, Committee Expert acting as Rapporteur for the Report of Australia, recognized the challenges arising from the federal Government system in Australia and said that Council of Australian Governments was a significant forum in which decisions could be taken to ensure there was a comprehensive implementation of the Convention on the Rights of the Child. The strategic framework to 2020 was a national framework; was there a thematic and territorial framework and how was coordination and monitoring done to ensure there were no gaps and duplications?
Concerning independent monitoring, Ms. Mauras welcomed the institution of the Child Commissioner and asked whether the Paris Principles criteria had been met, such as provision of an independent budget for the Commissioner, specialised staff for the Office of the Child Commissioner, and jurisdiction on the whole territory of the Office. The Committee was concerned about the handling of budgetary resources for childhood issues and about the activities of Australian mining companies which had been accused of complicity in human rights violations, for example in the Democratic Republic of the Congo, Fiji and elsewhere. The State needed to ensure the adherence of companies to codes of conduct such as Enduring Values. The Committee welcomed the intention of Australia to increase its official development assistance to 0.5 per cent of the gross national product in 2015-2016 and agreed with the concern that human rights approaches must be adopted in the increase of percentage of official development assistance. The National Plan Against Violence 2010-2022 had a considerable preventative approach particularly in dismantling attitudes and behaviours and in the action to reduce gender inequalities. Could the delegation provide further concrete examples of this plan and the evidence of the progress made in the first year of the implementation?

HIRANTHI WIJEMANNE, Committee Expert acting as Co-Rapporteur for the Report of Australia, noted the three times higher infant mortality rates among the indigenous populations and welcomed the attention of Australia to this issue. Also welcomed was the attention of Australia given to the situation of irregular migrants and how children were looked after. The Aboriginal and Torres Straight Island populations seemed to have less access to health and education. Birth registration was an important fundamental children’s right; unfortunately among some population groups there were children who were unable to get their births registered. Corporal punishment seemed to still happen inside homes, schools and institutions of residential and foster care, while there was no national legislation protecting children from that form of violence.

Were there specific changes in social, economic and children’s rights since the new Government was in place? Australia had provided assistance to developing countries and the Committee would like that official development assistance represent 0.7 per cent of the gross national product. Another Expert said that the Committee needed to raise the bar for Australia which was a promoter of human rights and one of the most developed countries in the world; that was why it was hard to understand that such a country did not have a legislation to prohibit corporal punishment. Initiatives promoting positive parenting were not enough.

There were some good examples of consulting the affected children to make policy recommendations in Australia, but it seemed that structures as Australian Youth Forum were mostly for older children while younger ones complained about being left out of the decision-making processes. What system was in place to ensure they were involved, together with children harder to hear such as Aboriginal or disadvantaged children? How did Australia ensure that children were not only heard but listened to in its policy and practices?

There were multiple and significant obstacles in the birth registration of Aboriginal children, including the payment of prescribed fees and complex bureaucracy. What measures were taken to facilitate birth registration, issue a birth certificate for all children born in Australia without any exception, and to ensure free and universal birth certification? Another Expert asked what concrete measures were being taken to ensure that the Convention and children’s rights were better known by children, families and communities? Were there any specific programmes on dissemination and awareness building about the Convention among disadvantaged communities and immigrants? A Committee Expert said that the rights of the child to be heard was embedded in the law but only in case of divorce of parents and asked if a child could challenge procedures in which that child had not been heard?

JEAN ZERMATTEN, Committee Chairperson, asked for comments concerning the impact of the anti-terrorist laws on the exercise of the rights of children.

Response by Delegation

The coordination in the Australian federal system was indeed a complex issue; there were nine governments and federal and state laws and practices to respect. There were a range of different responsibilities for children in the Government, from different levels of government to different Ministries within the Commonwealth Government. In each of the States and Territories there was a Minister who had primary responsibility, and in some States there were two. The Council of Australian Governments had a number of Standing Councils which addressed specific issues. When those were asked to produce plans of actions, each would indicate who was working on issues and how those issues could be brought together on strategic and practical levels. The Child and Family Roundtable comprised of 14 experts who met regularly and consulted with relevant ministries or institutions. The body that managed the implementation of the National Framework was a tri-partite body of national and state governments and the representatives of civil society.

There had been a conscious decision to spread responsibility for human rights issues within the federal Government and this was also the case for the Convention on the Rights of the Child. This was a reflection of the belief that sharing responsibilities amongst all Ministers would make it more likely that action was taken. Further, the establishment of the National Children Commissioner would contribute to improving cooperation and collaboration between States and would complement the work of Children Commissioners that already existed in each State of Australia.

A Committee Expert noted that the National Children Commissioner, which was in fact a children’s ombudsman from the point of view of the Convention, needed to be autonomous, independent and enabled to receive complaints; its purpose was not to complement executive functions and therefore could not contribute to coordination within the Government. The Committee Chairperson asked how Australia ensured equal rights for all children throughout its territory and what happened if a State law was not in conformity with the international treaties. Australia did not have a Charter for Rights on the federal level applicable on all the territory, noted another Expert.

In response, the delegation said that running Australia was a complex business. The lack of a Bill of Rights was a subject of debate in Australia and required a constitutional revision to pass; an attempt had been made in the 1980s and had not been successful as historically it had been very difficult to change the Constitution. The approach chosen by Australia was to increase the power of elected Parliaments and to incorporate human rights early in promulgation of legislation. Before Australia signed and ratified an international treaty, it made sure that State laws were in conformity with that treaty. Australia had a long standing commitment to human rights commissioners and emphasized their strong and fierce independence. The National Children’s Commissioner would not be a part of the executive or of the national coordination mechanism, but would be the advocate for children’s right and would push the Government to deliver on its obligations. The Commissioner’s budget was 3.5 million AUD over the next four years and she or he would be independent in picking out the staff. If a piece of State legislation was not compatible with human rights, a statement of incompatibility would be made for the Parliament and the Parliamentary Human Rights Committee would enquire into those issues and report back to the Parliament before the voting on the law happened.

‘Closing the Gap’ in health and education of indigenous people ran throughout a number of policies in Australia; social policies were aiming to better engage and give more voice to indigenous children, while listening to voices of indigenous families was a strong design feature of early childhood policies. Australia was looking into Constitutional recognition of the First Peoples, was focused on reconciliation issues and had established the National Congress of the First Peoples. In addition, clear and measurable targets had been set for early childhood and primary education, employment and other sectors in order to reduce levels of disadvantage of the Australia’s First Peoples. It was important that children were aware of their rights and that was the first step in enabling them to take action in claiming those rights.

An Expert asked if the new curriculum being drafted in Australia was considering human rights to be included as a core element of the curriculum.

Responding to the question, the delegation said that the Australian Curriculum, Assessment and Reporting Agency was an independent body in charge of curriculum revisions which would consider the inclusion of human rights and children’s rights into the national curriculum, probably in the third phase of this work.

Was there a body in the Parliament and in the executive in charge of cross cutting issues, such as discrimination of Aboriginal population, and that could also receive complaints, an Expert asked?

The delegation said that two aspects of the Government had the responsibility; the Council of the Australian Government and the Cabinet of the Prime Minister at the federal level. Australia was very good at doing the “whole of Government” approach which was a modern day challenge for a number of cross cutting policy issues. The Minister for Indigenous Affairs assisted the Prime Minister in the management of the indigenous people’s portfolio.

A Committee Expert asked for clarification on how data collection was organized and noted that the National Congress of Australia’s First Peoples was a success; how were the members chosen and were there any children members?

Getting the data was one of the most difficult issues, said the delegation. Australia was making progress in disaggregated data collection, particularly in relation to children, and several steps were being taken to strengthen it, such as data collection related to juvenile justice, data on children’s social, emotional and cognitive development and others. Australia was aware of lack of data related to children with disabilities and this would be addressed with the new national policy on children.

Questions by Experts

In a second round of questions and comments, HIRANTHI WIJEMANNE, Committee Expert acting as Co-Rapporteur for the Report of Australia, noted an increase in the number of children in out-of-home and alternative care and asked whether there were preventative programmes which supported families so that children did not get into the institutions in the first place? What monitoring programmes were in place for institutions and how were children followed up after leaving alternative care? In terms of adoption, what were the systems in place and how was monitoring carried out? How was access to health services ensured for children with disabilities and what was the system in place to prevent disabilities? Breastfeeding initiation rates were rather high but declined later on and Ms. Wijemanne asked about policies to support breastfeeding and help mothers to exclusively breastfeed for six months.

Some reports indicated that 12 per cent of the Australian population were poor; what was the poverty reduction strategy of the Government and what specific policies were in place to address youth unemployment, paid maternity leave, homelessness and others? What was the progress in the implementation of the law on packaging of cigarettes without advertising? The Government had taken measures to reduce the number of immigrant children in detention centres and this was welcome; what measures were being taken to expedite visa and residence permits for children and their families in order to reduce time spent in detention centres.

Sterilization should not be practiced on a child under any circumstances, not even in connection with disability; did the delegation have figures about the sterilization of children with disabilities? Did Australia still maintain that sterilizations should not be absolutely prohibited? What preventive measures were in place to protect students from being sexually abused and what liability was borne on abusive parents? How were children consulted in the design of child protection policies and what was the effectiveness of those policies? Did professionals working with the children have an obligation to report abuse to the authorities? Policy seemed to focus on crisis management rather then on prevention; what was the Government doing to change this approach? What were root causes of abuse?

Disparity in ages was a factor that added to difficulty in understanding the operation of juvenile justice system in Australia, an Expert said, as it appeared that there were three different brackets of ages that were linked to criminal responsibility of lack of thereof. Was there a mediation mechanism that was used instead of a court? How was judicial cooperation organized between different States when an offender, after committing a crime in one State fled to another State? What were detention conditions of juvenile offenders? What was the minimum age of criminal responsibility?

Another Expert evoked the discussion of immigrant children and children asylum-seekers and welcomed the new policy of Australia to keep those children in the least restrictive environments. Still the Australian Human Rights Commission noted that there were a number of children detained in secure facilities. Was there a possibility of a further review of the Migration Act? What was the fate of those whose asylum applications had been rejected?

The Committee recognized and commended the focus of Australia on early childhood development and the investment being made in this area; still, the focus seemed to be on four year olds, while studies showed that it was already late as brain development took place by the age of three. Support to parenting under the age of three was important and provided gains in future socio-economic development of children. Around 76 per cent of early childhood development in Australia took place in private institutions, which meant it was out of reach for many families. What measures could be taken to ensure universal early childhood education and to ensure that learning a second language was facilitated in the multicultural society such as the Australian one? What was the funding status of community-based schools? What was the status of bilingual education for Aborigine and Torres Straight Islander children?

A Committee Expert asked how Australia ensured that the best interest of the child was taken into account in the repatriation of refugee children, particularly in cases of return of children to Afghanistan. Turning to the subject of paid parental leave, an Expert asked how it was decided to limit it to18 weeks and whether there were any discussions on extending it in line with World Health Organization’s recommendations on exclusive breastfeeding for newborns and infants. How did the Government intervene and complement incomes of families where the parental leave pay, which was at the level of guaranteed minimum wage, was not sufficient? Where were children placed at the end of parental leave; placing them in institutional day care was a scary option for babies aged 18 weeks? How was the quality of care guaranteed in privately run day care centres, which were set up on for-profit basis? What measures were in place to address school violence?

Response by Delegation

In response to these questions and others, the delegation of Australia said that the Labor Government had been elected in 2007 and like any new Government it had brought changes and new policies. These changes would be set out in detail for the Committee. Australia’s legislation to implement the plain packaging of tobacco products would start in October this year; this was one of the measures Australia undertook to reduce smoking, including teen smoking, and complemented other measures such as internet-based and social medias campaign, price hikes, smoking bans and others.

Turning to Australia’s official development assistance, the delegation said that it would be increased to 5.2 billion AUD this year, representing a considerable increase of nearly 2 billion AUD since 2008. Australia remained committed to eventually reaching an ODA target of 0.7 per cent of the gross national product. The aid programmes promoted children’s rights by ensuring access to basic services such as health and education, and supporting the work of grassroots organizations. In concrete terms, this meant that by 2015-2016, 10 million children would be vaccinated, 8.5 million people would be provided with access to clean drinking water and more than one million births attended by birth attendants, to mention some.

Australia appreciated the supportive views of the Committee concerning community-based detention for care of children asylum-seekers. More that 4,000 people had been approved for community-based detention and more than half of them had already been granted visas. Australia was well aware that this system was not a final arrangement. Applications from children and in particular from unaccompanied minors were expedited. Children could be interviewed separately in instances where it was deemed necessary. Wherever a child was an applicant for a visa or asylum, the interview would take place, particularly in case of unaccompanied minors all of whom were provided with free and independent legal assistance. In addition, special 24 hours live-in care was provided, as were education and mental and physical health services. Australia was aware of the perceived conflict of interest between the Minister’s responsibilities under the Guardianship Act and the Migration Act and had sought expert advice as part of considering guardianship arrangements to ensure that the needs of children continued to be well met.

An Expert noted that half of children in alternative detention had received visas and that it had been done rapidly. How long were the procedures? Another Expert said that it was hard to understand how guardianship over children could be given to a Ministry, whose interest was not that of the child and was not the best solution.

In response to those questions, the delegation said that the interests of children were taken seriously by the Department of Immigration and Citizenship and that it saw their care as a clear responsibility, and recognized the concern of the Committee. It was important that the focus on children was the best that Australia could deliver and that the highest quality services and care were delivered to the children. The value of community arrangements in this respect have been acknowledged by the Australian Human Rights Commission, United Nations High Commissioner for Refugees and the National Immigration Ombudsmen. Processing of children applications was longer than the Government wanted; the basic and fundamental problem was that applicants came undocumented and establishing identity took time. Those who arrived by mid-February had already moved to community-based detention; this meant that it took less than 90 days for all the necessary checks to take place. The number of people who had arrived by boat to Australia was 4,562 in 2011 and 3,700 by June 2012. In 2011, Australia had granted 4,820 visas and by June 2012 it had granted 1,570. Persons with disabilities could migrate to Australia; all migrants had to meet health requirements in order to protect the Australian public and manage public spending on health. Persons with disabilities were not refused automatically.

An Expert said that in 2010 there was a well known case of a German doctor not accepted by immigration because his child had Down syndrome which was not a contagious disease, but would present a burden to public health system. The immigration system seemed to be discriminatory against children with disabilities.

The delegation was aware of this case, but could not provide further details at this stage.

A number of reforms had been recently adopted in order to support families, which included paid parental leave, tax breaks, support for low income earners and others. While social security was a major component of the support system, there was also support to access to health, support to education, employment security and high minimum age, subsidized child care, employment assistance, public housing and a number of others. Family tax benefit was a scheme to help families raise dependent children; from 2013, a new school kids bonus would be paid out to more one million families. In addition, the Government was providing an 8 billion tax revision which would enable tax cuts from mid-2012 for low and middle-income families. There was a comprehensive system to support job-seekers, linked with the policy of Learn and Earn for young people.

The Government did not endorse corporal punishment and was not permitted in government schools. The Government was aware of only a few non-governmental schools where corporal punishment was still practiced. Corporal punishment was banned and prohibited in child care centres, detention centres and institutions. It remains a contentious issue in Australia.

Following up, an Expert said that violence against women and children in general was quite high in Australia; there was just a small step separating authorised corporal punishment, even with all caveats, from violence against women and children.

Responding, the delegation said that the Government actively promoted Positive Parenting and anti-violence programmes, while early childhood programmes aimed at better informing and educating children with a focus on minimizing domestic violence and violence against women and children. Programmes in schools encouraged children to speak up if they experienced bullying and violence, including at home.

Turning to questions related to children with disabilities, the delegation said they were under-represented in child care services, while a significant proportion of children with disabilities were in mainstream school. Curriculum development was done for all children and was adjusted for circumstances of children. The Government had a significant reform agenda around disabilities including the current review of the disability standards within education. The review had been completed with the aim to adjust consistency and equity of the system. Further, the Council of Australian Governments had agreed on a long-term National Disability Strategy to reform disability, which had been prepared with the participation of persons with disabilities and had six major areas of intervention including accessibility, employment and security and special programmes to support children with disabilities in health and education. Another major event was a fundamental review of the disability system in Australia which would put disabled individuals at the centre and represented a major investment by states and the Commonwealth. There was an overarching national policy encouraging children with disabilities to be included in mainstream schools and it was more likely that such a child was in a mainstream school and not in a special needs school.

The Australian Government recognized the right of persons with disabilities to preserve their right to fertility. Requests to sterilize a minor required court agreement and its decision must be based on the best interest of the child. There was less than one application filed annually with the Family Court for the last ten years.

There was a range of programmes to support children with mental health problems, such as a pilot programme to train child care professionals to identify children with such problems in order to facilitate early intervention. There was a comprehensive set of strategies across the lifecycle from early childhood and throughout schooling and education. Mental health was another area of reform and the Government was now in the process of developing a ten-year road map. A range of mental health services had been funded including 4 million AUD for “Kid Matters”, and there were other programmes such as early intervention, checks for three-year olds, and “Head Space” programme (200 million AUD) to help youth 16 to 25 and consulted with youth on mental health awareness and to deliver effective models. Australia provided high level support for breastfeeding as attested by high initiation rates. In 2011 the Government had amended the law to prohibit discrimination at work against breastfeeding women.

Australia had a national portfolio on early childhood development and education. The national plan for indigenous peoples’ education was a comprehensive and detailed strategy implemented at the national level and tailored to specific needs of states and territories. The policy of the Northern Territory to provide tuition in English was being examined at the moment. The question of access to quality education in the Northern Territory was one of the major reasons for the Northern Territory Stronger Futures agenda of the Government which had committed considerable resources for education in this jurisdiction, with particular focus on enrolment and attendance of both Indigenous and Australian children.

In all jurisdictions in Australia the minimum age of criminal responsibility was 10 years. A child aged 10 to 14 was considered criminally responsible only when the prosecution could prove that the child knew that the act was criminal. Australia had a process of extradition between States and a child could be returned to a jurisdiction of a State where the child committed a crime. The juvenile justice system promoted rehabilitation and alternative sentencing rather than punishment, and court was the last resort. For many children the pathway to juvenile justice was through the child protection system and that was why it was important to deal with issues through that system that arose early. All children were detained separately from adults throughout the territory and usually remained in the juvenile justice system until the age of 21.
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