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Association of Childrens Welfare Agencies Conference

Rights and Freedoms

Association of Childrens Welfare
Agencies Conference

"What Works? Evidence Based Practice in Child and Family Services

Swiss Grand, Bondi Beach

3 September 2002

Keynote presentation

"Lessons from the UN Special Session on Children"

Dr Sev Ozdowski OAM, Human Rights Commissioner

I am delighted to
be invited to speak today at the Biennial Conference of the Association
of Childrens Welfare Agencies, in association with partner organisations
dedicated to the wellbeing of children.

Thank you Nigel (Nigel
Spence, CEO of Association of Childrens Welfare Agencies) for your invitation
and Kelly (MC Kelly Trewin) for your kind introduction.

I would like to acknowledge
the Dharawal people, part of the Eora nation, the traditional custodians
of the land on which we stand. I particularly like to do this as it reminds
us that Australia is blessed by having one of the oldest surviving cultures
in the world.

I am especially pleased
to be given the opportunity to speak to members of children's welfare
associations and agencies. Consulting and partnering with professionals
such as you is a central plank of the Commission's goal in promoting the
human rights of children in Australia. It is your invaluable day to day
dedication and expertise in children's rights which brings the Convention
on the Rights of the Child to life.

Today I acknowledge
and applaud your ongoing commitment. In particular I would like to mention
the welfare sector's role in providing first-hand testimony to the National
Inquiry into Children in Immigration Detention. Ex-Detention Centre social
workers, psychologists and others have testified about their experiences
and State children's and community services officers have generously shared
their time and expertise.

Turning for a moment
to that Convention over which I have jurisdiction, namely the Convention
on the Rights of the Child (CROC). Let me refresh your memories:

  • this treaty is
    the pre-eminent international human rights instrument dealing with children's
  • its subject matter
    is wide, covering everything from the child's right to protection from
    sexual exploitation to the right to play;
  • it covers civil,
    political, economic, social and cultural rights;
  • it is the world's
    most ratified Convention;
  • Australia ratified
    the CROC over eleven years ago, in December 1990; it was scheduled to
    the Human Rights and Equal Opportunity Act in 1993;
  • CROC establishes
    the minimum benchmark for the way children are to be treated.

As you would be aware
the main distinguishing feature of CROC is that it recognises the right
of all children to participate meaningfully in all matters affecting them.
This emphasis has quite profound implications in the way adult society
must now negotiate its way through issues involving children.

We at the Human Rights
Commission are a statutory body, completely independent of Government.
As Human Rights Commissioner, it is my task to promote and protect the
human rights of all people in Australia.

In particular, the
Commission monitors implementation of the Convention on the Rights of
the Child in Australia and has the capability to inquire into acts or
practices by Federal Government agencies that may violate children's human

This we can do in
two ways. By investigating individual children's complaints of violations
of their rights under the Convention or by conducting broader inquiries
into systemic violations by or on behalf of the Commonwealth, for example,
my current National Inquiry into Children in Immigration Detention, about
which more later.

Overall Australia
leads the world in protection of children: we do not face widespread malnutrition,
child labour and child prostitution; we have no military conscription
of under-18s.

In the past decade,
significant progress has been made domestically. For example with regard
to immunisation - according to Government figures, in 1996 only 56% of
one-year olds had been immunised against diphtheria, pertussis, tetanus,
polio, measles, TB, but by March 2002, immunisation coverage of one year
olds had risen to 90.5%. In education, high school retention rates overall
have vastly improved.

However the progress
is not uniform. Some children still fall through the cracks, and here
I would like to mention three particular categories of children. Firstly
indigenous children, who show a high rate of incarceration in juvenile
justice centres, low health standards and lower school retention rates.
Secondly, children in state institutional care, and in particular babies
and children in immigration detention centres. And thirdly the 15% of
children living below the poverty line.

When asked where
we could improve - there is a range of common themes that have emerged
during my ongoing consultations with children and young people around
the country. These include:

  • children's desire
    to participate in decisions affecting them;
  • a lack of harmonisation
    of laws and practices in relation to juvenile justice in the eight state/territory
    jurisdictions - for example with regard to police move-on powers;
  • the need for
    more civics and democracy education;

There were also some
calls for the creation of a Federal Children's Commissioner.

The information obtained
during my consultations proved to be very useful when I was invited to
attend the UN General Assembly Special Session on Children on 8-10 May
2002 as a member of the Australian Government delegation.

I participated in its work, including representing the leader of the delegation,
The Hon. Larry Anthony, Minister for Children and Youth Affairs at the
Gate Foundation Concert "Turn This World Around - Leadership for
Children" on 9 May 2002.

I am pleased to report
that both the Australian delegation and NGOs have played a positive role
in negotiations on the final document. I was particularly pleased that
Minister Anthony's statement delivered on behalf of Australia to the 27th
Special Session of the General Assembly on Children mentioned the work

I also represented
Australia at the first meeting of Independent National Human Rights Institutions
regarding the protection and promotion of the rights of the child. This
was held

on 7 May 2002, prior to the UN Special Session. 17 countries sent their
representatives (Australia, Belgium, Bolivia, Canada, Columbia, Denmark,
France, Iceland, Macedonia, NZ, Nicaragua, Northern Ireland, Norway, Poland,
South Africa, Spain and Sweden) and 3 observers.

During the meeting
the institutions shared information on their strategies, activities and
challenges to their work. In this context, I gave a report on Australia's
progress regarding the rights of children and outlined the functions and
structure of the Commission. I also spoke about the role of the Asia-Pacific

The Meeting agreed

  • urge Governments
    and the UN system to mainstream and give a priority to children's rights
    and to develop appropriate mechanisms, including legislation to advance
    children's rights;
  • support development
    of children's independent human rights institutions in every State;
  • call on the UN
    system to give formal recognition to independent human rights institutions
    to enable them to be active participants in all UN proceedings;
  • develop a list
    of long term follow-up and commitments, including a commitment to establish
    a global network of independent human rights institutions for children
    and the organisation of regular meetings and exchanges of information.

In addition, during
the visit to New York, I conducted a number of consultations with Australian
and other NGOs present at the Session and with UNICEF officials.

Turning now to the
other issue that has been consuming my time this year, namely the National
Inquiry into Children in Immigration Detention.

The Terms of Reference
are broad and include child asylum seekers' health and education needs;
legal status, mental health and development and overall treatment by staff.

The methodology is
very thorough, involving:

  • over 290 submissions
    received from health, education, welfare and legal professionals as
    well as members of the public, including refugees;
  • inspections of
    detention centres which include interviews with detainee children, young
    people and their families;
  • public hearings
    (DIMIA and ACM outstanding);
  • focus groups with
    ex-detainee children and young people;
  • examination of
    DIMIA/ACM documents.

On a number of occasions
I have expressed a concern about the human rights of children in immigration
detention. Clearly these children in immigration detention are among the
most vulnerable in Australia today, especially those who are unaccompanied
minors. Many of these children have fled situations of war and persecution.
They have arrived in a strange country after a long journey; for adults
these are confronting and traumatic experiences, how much more so must
they be for children?

Under Australian
law, all "unauthorised arrivals" (people who arrive without
visas) are placed in mandatory, non-reviewable and often long-term administrative
detention. This is despite the fact that they have not committed any crime
by seeking asylum in Australia. It is their right to seek asylum under
the Refugee Convention, to which Australia is a party.

Father Frank Brennan
gave the following analogy: "We are not to punish them for having
the temerity to turn up without a visa. This defect is the equivalent
of not having a parking permit when you have entered the carpark while
fleeing a bush fire."

The policy of detaining
during the processing of applications applies to both children with their
family and unaccompanied children. Detention, which can be for a period
of over one year, continues until the asylum seeker is recognised as a
refugee or deported. Under new laws in September 2001, asylum seekers
who arrive at "excised offshore places" are unable to apply
for any visa and may be removed to a "declared country" (eg.
PNG, Nauru).

The precise number
of children held in Australia's immigration detention centres will vary
from week to week. However, it is possible to say that over the past few
years, at least five hundred children have been held at any one time and
that the figures are comparable to the country's entire juvenile detention
population. I am pleased to say that at present the number of children
in detention in Australia has reduced to about one hundred and twenty,
but I would still argue that it is one hundred and twenty too many. And
this figure does not include children in Manus and Nauru.

Australia has international
obligations to protect these children as outlined in the Convention on
the Rights of the Child. According to CROC, the detention of a child shall
only be used as a measure of last resort and for the shortest appropriate
period of time (article 37(b), CROC).

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

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

This poses the greatest
problem in the cases of long-term detention, where children and their
families cannot go backward or forward. The family may be rejected but
cannot be deported to another country because of the difficulty of procuring
travel documents or because they come from a country such as Iraq where
they cannot be returned at the present time. During the impasse they remain
in detention for months, sometimes years.

The effects of this
were never more evident than in my most recent visit to Woomera detention
centre in June 2002. I was deeply concerned by what I saw and heard. Many
children were on hunger strike and all were despairing. We were told that
children self-harm now on a weekly basis, and that the mental health of
all families has deteriorated markedly in the past six months.

An earlier visit
of my officers last January confirmed that there had been a number of
incidents of self-harm by children in the facility at the time of the
January hunger strike. Children were responding to the "atmosphere
of despair" in which they lived in the facility. Five months later,
the situation had deteriorated much further. The families that I interviewed
have been existing in detention centres for 15 to 20 months. Woomera in
particular now looks like a psychiatric hospital, but with no facilities
or appropriate staff, instead there are prison guards whose primary experience
has been securing adult penal institutions.

I can make no final
judgement in the middle of my Inquiry, however I can report that some
of the emerging themes, are:

  • the despair of
    those long-term detainees who can't understand why they are being detained
    when they only came here for protection;
  • the lack of adequate
    education - however I wish to acknowledge the recent move to use outside
    school facilities - this seems to be the right way to go;
  • health and mental
    care is still a concern with a lack of appropriate or timely medical
    and psychological care;
  • there is limited
    access to services for children with disabilities;
  • there is limited
    availability of child specific nutrition, for example, an unreliable
    supply of infant formula milk;
  • no adequate protection
    from witnessing of self harm or violence.

What I was also concerned
with during the public hearings was that a number of witnesses requested
in-camera hearings because of fear of speaking publicly. These included
not only detainees and ex-detainees, but visitors, volunteer workers and
ex ACM and DIMIA workers.

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

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

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

I urge you to inform
yourselves further about the situation of asylum-seeking children in this
country. I urge you to inform other Australians, especially your professional
colleagues, about the issues associated with long-term mandatory detention.
We are a democratic country and we need to change public opinion to secure
policy change.

I thank you very
much for listening and wish you all the best in your vital work with children
and young people.

updated 5 September 2002