By Associate Professor Paula Gerber, Deputy Director of the Castan Centre for Human Rights Law
The UN Committee on the Rights of the Child (Committee) has just issued its five-yearly report on Australia’s compliance with the Convention on the Rights of the Child (CRC).
Although couched in diplomatic language, the report contains damning findings regarding Australia’s protection of children. One of the reasons the Committee may have been particularly critical of Australia is because we are “one of the most affluent economies of the world”. Thus, unlike many other countries, we can hardly claim lack of resources as an excuse for not achieving more when it comes to protecting our children.
The comprehensive review of Australia’s efforts includes strong criticism of the Government in a range of diverse areas including:
- Breast feeding – the Committee expressed concern that only 15% of mothers continue to exclusively breast feed until their child is six months old. It encouraged the Government to explore means of supporting breast feeding by working mothers.
- Australian mining companies – which the Committee found to have been complicit in serious violations of human rights in countries such as the Democratic Republic of Congo, the Philippines, Indonesia and Fiji, where children have been victims of evictions, land dispossession and killings.
- Juvenile justice – which still “requires substantial reform” in order to comply with international standards, including increasing the minimum age of criminal responsibility and ensuring that children with mental illness and intellectual disabilities, who are in conflict with the law, are dealt with using alternatives to judicial proceedings.
- Discrimination against gay and lesbian youth – and the need for federal legislation to protect against discrimination on the basis of sexual orientation and gender identity.
- Corporal punishment – which the Committee recommends be expressly prohibited in homes, schools, detention centres and alternative care settings.
- Bullying – the Committee recognised that the Government has taken steps to combat bullying in schools, but encouraged it to do more to train teachers to investigate and address bullying.
The strongest criticism was levelled at the Government’s performance in relation to three distinct groups of children, namely children with disabilities, Aboriginal and Torres Strait Islander children and asylum seeking children.
Children with Disabilities
The Committee found that disability services were “under-funded, unfair, fragmented and inefficient” with children “frequently failing to receive crucial and timely early intervention services”. The importance of children with disabilities being able to exercise their right to education, including mainstream education, was stressed by the Committee as was the need for legislation prohibiting non-therapeutic sterilisation, which the Committee noted was a procedure that continues to be utilised in Australia on girls with disabilities.
Aboriginal and Torres Strait Islander children
The Committee commented on the “serious and widespread discrimination faced by Aboriginal and Torres Strait Islander children”, including in accessing basic services and in their over-representation in the criminal justice system. Furthermore, aspects of the Northern Territory Emergency Response were described as punitive.
As part of the process of overcoming these problems, the Committee recommended that the Government undertake more effective and meaningful engagement with Aborigines and Torres Strait Islander people in the formation of policies that affect them.
The Committee was highly critical of the Government’s continuing policy of mandatory detention of asylum-seeking children without time limits and access to judicial review, and the failure to use the best interests of the child principle to inform asylum and refugee policies and processes.
The Committee noted the serious conflict of interest that can arise from the Minister for Immigration also being the legal guardian of unaccompanied minors, and recommended that the Government “expeditiously establish an independent guardianship/support institution for unaccompanied immigrant children”.
The Committee called on the Government to “conclusively abandon” offshore processing and the so-called ‘Malaysian solution’ in favour of adopting the UN High Commission for Refugee Guidelines on protecting children seeking asylum.
Although there were numerous strong criticisms of Australia’s efforts to protect and promote children’s rights, there was also recognition that the Government has made progress in some areas, including the announcement of a national children’s commissioner, the requirement that all legislation is now subject to a human rights compatibility assessment and family law reforms which prioritise the safety of children. But there can be no doubt that the failings of Australia’s children’s rights efforts far outweigh the successes.
The next assessment of Australia’s compliance with the CRC is not due for five years. Let’s hope that by there has been significant improvement in the protection and promotion of the rights of the most vulnerable members of our society. For as noted American Psychiatrist, Karl Menninger observed “What is done to children, they will do to society.”