Advancing the Human Rights of Children: The Australian Experience

1. Advancing the Human Rights of Children: The Australian Experience Sharon BessellDirector, Children’s Policy Centre Crawford School of Public Policy The Australian National University sharon.bessell@anu.edu.au

2. A Fertile Environment for Children’s Human Rights? Areas of particular concern Indigenous Children Child mortality 3 times higher than other groups 24 more times likely to go to jail 10 times more likely to be in out of home care. Child Asylum Seekers Children in Out-of-Home Care • A wealthy country with a high standard of living • Ranked 2nd on the Human Development Index • Social commitment to egalitarianism and equality

3. POVERTY STRUCTURES MANY CHILDREN’S LIVES 1 in 6 of children live below the poverty line (17.3% of children)

4. Legal Consciousness Legislative and policy changes that have incorporated either ideas of children’s human rights or the United Nations Convention on the Rights of the Child. Social Consciousness Broad-based understanding of, support for and commitment to the human rights of children, as an agreed principle in daily life.

5. Legal Consciousness of Children’s Human Rights Emerging Particularly evident in policy around out-of-home care Somewhat ad hoc Politically divided Limited translation into practice Social Consciousness of Children’s Human Rights Largely underdeveloped

6. Australia ratified the United Nations Convention on the Rights of the Child in 1990 (Hawke Labor Government) Little consultation, discussion or debate Treaties not automatically incorporated into law Opposition called for reservations on articles 12-16 (participation articles)

7. 1998 Joints Standing Committee on Treaties Inquiry into the UN Convention on the Rights of the Child: Dissenting Report ‘Australian should agitate for substantial amendments to the CRoC to clearly spell out the pre-eminent role of the family and the rejection of the “autonomous child” concept.’ Eric Abetz (Liberal Senator for Tasmania), Peter McGauran (National Party MP) and William O’Chee (National Party Senator for Queensland) , Members of the Commonwealth Parliament’s Joint Standing Committee on Treaties JSCT 1998, p. 463.

8. AT STATE LEVEL: CHARTERS OF RIGHTS FOR CHILDREN AND YOUNG PEOPLE IN OUT OF HOME CARE • Queensland • New South Wales • Victoria • South Australia • Western Australia • Tasmania • Australian Capital Territory

9. Rights that appear in 4 or more State and Territory Charters Rights that appear in all State and Territory Charters To receive culturally appropriate care To be safe To be consulted on decisions To maintain relationships with family and friends To receive medical care Privacy Support in transitioning from care To receive an education Fair treatment or to be treated in a non-discriminatory manner To make complaints

10. Silences in the Charters of Rights Having a choice of case workers • Having a say on whom you are placed with, and in particular being able to veto carers Being placed with siblings THREE ISSUES CHILDREN IDENTIFY AS FUNDAMENTALLY IMPORTANT

11. National Framework for Protecting Australia’s Children – 2009 ‘Principles to guide our actions Children have a right to be safe, valued and cared for. As a signatory to the United Nations Convention on the Rights of the Child, Australia has a responsibility to protect children, provide the services necessary for them to develop and achieve positive outcomes, and enable them to participate in the wider community. In line with Australia’s obligations as a signatory to the UN Convention, the National Framework is underpinned by the following principles....’

12. Overarching principles for National Standards for out-of-home care – 2011 Children and young people in out-of-home care have their rights respected and are treated in accordance with the United Nations Convention on the Rights of the Child. National Standards for out-of-home care Standard 2 Children and young people participate in decisions that have an impact on their lives. http://www.fahcsia.gov.au/sites/default/files/documents/pac_national_standard.pdf

13. 2012 Amendment to the Family Law Act (in relation to parenting arrangements) ‘An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.’ ‘What Parliament seems to have intended was to launch a ship of interpretation onto the high seas, knowing not its destinations, and allowing the wind and currents to carry it where they will. It is questionable whether this is a good way of promoting human rights.’ Patrick Parkinson

14. A NATIONAL CHILDREN’S COMMISSIONER ‘For the first time, Australia will have a dedicated advocate focussed on the human rights of children and young people at the national level. The Children’s Commissioner will ensure the voices of children and young people are heard in the development of Commonwealth policies and programs.’ Nicola Roxon, Attorney General, 29 April 2012

15. ‘We see it as an entirely unnecessary expansion of the existing very health human rights bureaucracy – unnecessary because there is no function that the proposed Children’s commissioner would discharge which is not already dealt with by like offices in the states and territories.’ George Brandis, Shadow Attorney General, 25 June 2012

16. I do not know any children who would have opinions on such matters. Organisations that represent them might but I very much doubt that the children would, to be perfectly frank. Senator Gary Humphries in response to the suggestion that children and young people be consulted on the appointment of a commissioner for children Official Committee Hansard, Senate, Legal and Constitutional Affairs Legislation Committee, Australian Human Rights Commission Amendment (National Children’s Commissioner) Bill 2012, 8 June, 2012, p. 3

17. Children and Young People’s Experiences Two Studies Total of 62 children and young people with experience of out of home care THE PROMISE THE REALITY CHILDREN AND YOUNG PEOPLE’S EXPERIENCES RHETORIC OF HUMAN RIGHTS

18. POLICIES CHILDREN AND YOUNG PEOPLE’S EXPERENCES Often long waiting periods and complicated processes to access benefits and services ‘I went through winter with thongs [lightweight sandals] and then got shoes in summer.’ ‘You have to ask for clothing vouchers and the workers can’t give them straight away. The big boss has to sign off. I have to wait three weeks for a $50 clothing voucher – and I really needed it.’ • Access to and support for health care and basic needs

19. POLICIES CHILDREN AND YOUNG PEOPLE’S EXPERENCES Concerned about treatment at school, choice of school ‘There are bullies in school – and it can be much worse for kids in care.’ ‘I had to change schools, and I have to leave my friends – the only ones I could count on when stuff was bad.’ • Focus on access to education, completion of schooling

20. POLICIES CHILDREN AND YOUNG PEOPLE’S EXPERENCES No choice on the things that matter: Choice of case worker Choice of placement Choice of carer Placement with siblings • Right to participate, to be consulted or to ‘have a say’ • ‘The only choice you have when you’re a kid in care is to run away’

21. THE GAP BETWEEN THE PROMISE OF HUMAN RIGHTS AND THE REALITY THE PROMISE THE REALITY NOT COMPETENT TO EXPRESS A VIEW RIGHT TO EXPRESS A VIEW

22. I do not know any children who would have opinions on such matters. Organisations that represent them might but I very much doubt that the children would, to be perfectly frank. Senator Gary Humphries

23. THE GAP BETWEEN THE PROMISE OF HUMAN RIGHTS AND THE REALITY THE PROMISE THE REALITY Reasonable chastisement as a defence Acceptance of ‘reasonable’ corporal punishment Protection from degrading or cruel punishment

24. ‘The use of physical force towards a child for the purpose of control and/or correction, and as a disciplinary penalty inflicted on the body with the intention of causing some degree of pain or discomfort, however, mild.’ Australian Institute of Family Studies ‘Smacking’

25. Most sensible people ‘know a light, occasional smack done by a loving parent is not damaging and can effectively deter a child from problem behaviour. Many people find the idea of a government banning parents from using smacks to be an over-reaction.’ Mark Dadds, Professor of Psychology, University of New South Wales

26. Beazely, Bessell, Ennew, Waterson, 2006, P.191 ‘With these two hands, my mother holds me, cares for me: this I love’ ‘With these two hands, my mother hits me: this I hate’ Vu Thanh Quyen, Vietnam

27. ‘No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.’ UNCRC, Article 37a Is smacking cruel or degrading treatment or punishment? What do children think?

28. THE GAP BETWEEN THE PROMISE OF HUMAN RIGHTS AND THE REALITY THE PROMISE THE REALITY Excluded from indicators of ‘social inclusion’ A member of society with rights

29. Headline Indictors of Social Inclusion • Support from family/friends in time of crisis • Autonomy – having a voice in the community •  Autonomy – having a voice in family •  Contact with family/friends •  Participation in community groups • Participation in community events NOT MEASURED FOR YOUNGER CHILDREN 15 plus or 18 plus only

31. REPORT CARD SUBJECT COMMENT GRADE Still developing Legal Consciousness D+ Not Yet Evident Social Consciousness F

32. Moving Forward in Australia and Globally? • Translating children’s human rights into the vernacular • Overcoming conceptions of children and childhood that undermine the idea of rights • Reframing children’s rights/child rights as the human rights of children • Recognising children as full members of society and as citizens