Rights Agenda: Children’s Rights Edition 2014
Each year, King & Wood Mallesons and the National Children’s and Youth Law Centre, work with the Human Rights Law Centre to publish a special edition of our Monthly Bulletin, Rights Agenda, that focuses exclusively on human rights and legal issues affecting children and young people.
You can view some of the content online below.
Introduction from Matthew Keeley
Introduction from Hugh de Kretser
Winners of the 2014Children’s Law Awards
Finalists of the 2014Children’s Law Awards
Update from National Children's Commissioner, Megan Mitchell
Australia’s implementation of the Convention on the Rights of the Child
The Convention on the Rights of the Child and its new complaints mechanism – Optional Protocol 3
Give Australian children a voice: the nation’s need to ratify the third Optional Protocol to the Convention on the Rights of the Child
Australia must do more to address the over-representation of Aboriginal and Torres Strait Islander young people in youth justice systems
Forced Child Marriage in Australia: Reported incidence and responses
Naming and shaming repeat juvenile offenders
Detaining kids in Queensland
Human rights and child poverty – not seen, not heard?
Children’s e-Safety Commissioner
Potential and protection: striking a balance
‘If I were Attorney General…’ - Fairness, equality and the need comprehensive anti-discrimination laws
Children’s Rights Edition 2014
Introduction from Matthew Keeley
It is my great pleasure to present this year’s children’s rights edition of the Human Rights Law Centre Bulletin, developed in collaboration with King & Wood Mallesons and the Human Rights Law Centre. I am particularly pleased that the voice of young people comes through loud and clear in this year's edition with many of the articles written by young people under the age of 25.
This special edition is now in its fifth year. In that time it has reported on significant issues affecting children across Australia. This year’s edition continues this tradition, exploring the abuses and harms caused by forced child marriage, cyberbullying and the treatment of young people in the criminal justice system amongst other issues.
The treatment of children in Australia, and elsewhere, requires constant vigilance. We need look no further than the current Royal Commission into Institutional Responses to Child Sexual Abuse for support of that proposition. Articles such as those in this edition serve as a reminder of the many issues affecting children that we must remain attentive to.
These articles call for governments across Australia to ensure the safety and wellbeing of all children in Australia so that they can reach their fullest potential. They also recognise that positive steps have been taken in some areas, including the proposed establishment of a Children’s e-Safety Commissioner. And they call for the Commonwealth Government to grant Australian children the ability to access independent, international scrutiny of Australia’s child rights compliance by ratifying the Third Optional Protocol of the Convention of the Rights of the Child.
I thank King & Wood Mallesons and the Human Rights Law Centre for their generous support of this project. Since 2010, summer clerks and paralegals at King & Wood Mallesons have written the articles contained in these special editions and I extend my thanks to them for their diligence in shedding light on the inequalities and injustices affecting children across Australia.
The launch of this year's edition also coincides with the 2014 Children's Law Awards. As a practising children's lawyer I am inspired and optimistic for the future by the profiles on this year's finalists for the Awards found in these pages. Congratulations to the winners and all finalists!
Matthew Keeley
Director, National Children’s and Youth Law Centre
Introduction from Hugh de Kretser
The 2009 National Human Rights Consultation recommended that education be the highest priority for improving and protecting human rights in Australia. Rights Agenda is the Human Rights Law Centre’s flagship contribution in this regard.
Our annual Children’s Rights Edition is produced, like the vast majority of our work, in partnership with a leading pro bono law firm and not for profit organisation. I sincerely thank King & Wood Mallesons and the National Children’s and Youth Law Centre for their collaboration on this project.
This edition is timely as child rights are in the spotlight in Australia. The Australian Human Rights Commission’s National Inquiry into Children in Immigration Detention is highlighting the harm being inflicted on children and families by our policies of detaining asylum seekers.
Recently announced moves to release children from immigration detention on the mainland are welcome but also highlight the policy incoherence and ongoing damage being caused with over 300 children detained offshore on Christmas Island and Nauru. There is no doubt that their ongoing, indefinite detention breaches fundamental international human rights guarantees. There is no justification for these practices.
The Human Rights Law Centre is part of the legal team assisting 157 Sri Lankan Tamil asylum seekers, including 50 children as young as one, who the Australian Government intercepted off Christmas Island and detained for almost a month at sea while attempting to return them to India. We are in regular contact with our clients who are now in detention on Nauru in conditions the UNHCR has described as unsafe, inhumane and particularly inappropriate for children. Anyone working with families in this situation knows the despair of parents for their children’s wellbeing and future, and the urgent need for a better policy response.
More broadly, the HRLC is actively involved in work to promote education rights for young Aboriginal and Torres Strait Islander people, to stop the transfer of young people to adult prisons, to promote safe and humane conditions in youth justice facilities and to challenge harsh and counterproductive youth justice policies like ‘naming and shaming’, ‘boot camps’ and the removal of detention as a last resort.
The articles in this Children’s Rights Edition highlight some of the progress that has been made in securing child rights in Australia, but also the setbacks and the many challenges that remain. Importantly, the finalists and winners of the 2014 Children’s Law Awards showcase the extraordinary work of many individuals across Australia in tackling these challenges.
We hope you enjoy this special edition.
Hugh de Kretser
Executive Director, Human Rights Law Centre.
Winners of the 2014 Children’s Law Awards
Congratulations to the winners of the 2014 Children’s Law Awards:
The National Award For Outstanding Legal Representation
Winner: Unaccompanied Humanitarian Minor Consortium
Core membership: Sophie McNamara (Russell Kennedy); Renuka Senanyake (Springvale Monash Legal Service); Denise Gardner (Flemington Kensington Legal Service); and Victoria Legal Aid
Nominated by Fiona McLeay, Executive Director of Justice Connect
Many children and young people face numerous difficulties in their applications for asylum in Australia. After experiencing horrific war and dislocation, unaccompanied humanitarian minors in Australia face the prospect of being isolated from their families. This, alongside the lack of social friendships in a new country, and language and cultural barriers, makes them particularly vulnerable.
Formed in 2010, the Unaccompanied Humanitarian Minor Consortium (Consortium) was established as a response to this concern and in an effort to protect the family reunification rights of Afghan child refugees. The Consortium is a unique collaboration between over twenty pro bono lawyers, community legal centres, Victoria Legal Aid and social services. Family reunification has been recognised as one of the most important features of resettlement for young refugees. Over the past four years, the Consortium has assisted over 400 young refugees and their families. This result has only been achieved by the collaboration engaging in advocacy, strategising, developing templates, pooling together their resources, and providing emotional support for its members, amidst a changing and difficult polico-legal climate.
By using a multi-disciplinary approach to solve the problems faced by unaccompanied minors, the Consortium has exhibited a unique and exceptional collaborative method of legal representation, achieving many positive outcomes such as in the High Court case of Shahi v Minister for Immigration and Citizenship (M10/2011) in which an Afghani mother was reunited with her child who had turned 18 in Australia.
The current core membership consists of Sophie McNamara (Russell Kennedy), Renuka Senanyake (Springvale Monash Legal Service), Denise Gardner (Flemington Kensington Legal Service) and Victoria Legal Aid.
The other legal members are: Springvale Monash Legal Service, Russell Kennedy Lawyers, Hanna Jackson Lawyers, Flemington Kensington Legal Service, Springvale Community Aid and Advice Bureau, Justice Connect, Law Institute of Victoria and Law Council of Australia, VLAF, Carina Ford Immigration, and Clothier Anderson.
They are supported by: the Department of Human Services (including the Refugee Minor Program), Foundation House for Survivors of Torture, AMES, Diversitat, and Spectrum.
Past members include: Krystyna Grinberg, Dana Krause, and Helen Yandall.
“The UHM Consortium’s work is of profound significance for the young people who have been reunited with their families in Australia as a result. For many families it has meant the difference between safety and danger, family and loneliness…” - Quote from nominator
The National Award For Outstanding Contribution To Policy Or Law Reform
Winner: Lucas Moore and the CREATE Foundation
Nominated by Michael Hogan, Director-General at the Department of Communities, Child Safety and Disability Services (QLD)
Recent statistics show that there are over 50,000 Australian children living in out-of-home care. Furthermore, there are numerous young people each year who reach adulthood and therefore are no longer able to remain in the out-of-home care system. Behind these statistics lie the multiple everyday challenges faced by these children and their families, while living in, and after leaving, care. Government inquiries including the Wood Special Commission of Inquiry into Child Protection Services in NSW and the Carmody Inquiry have articulated these issues.
The CREATE Foundation is a national body which represents the voices of all children and young people in out-of-home care and those leaving care. Its mission is to attain a better life for the children and young people in care and CREATE achieves this through connecting children to each other, empowering them to have a voice and be heard, and advocating for the care system to be bettered. Through its Speak Up Program, Young Consultants, and Youth Advisory Groups, CREATE ensures that young people have a voice which has successfully driven change within the out of home care system. CREATE uniquely believes in ensuring the voices of children inform policy and law reform. In Queensland, the 2012/2013 Carmody Child Protection Commission of Inquiry was held. Lucas Moore, the QLD State Coordinator and the CREATE Foundation, made significant submissions to this inquiry, addressing issues which had been identified by young persons themselves as being significant. CREATE also facilitated opportunities for young people with experience in the care system, to give information directly to the inquiry.
“…CREATE [went] beyond…in terms of contributing to the inquiries through the eyes of either advocacy, criticism, or as a spectator. They actually participated as a partner with the reform, they were very fair, they advocated and spoke very passionately on behalf of children and young people in the care system, they made sure that children and young people themselves had opportunities to participate at the level they needed to. They were very constructive and creative in finding solutions, rather than just telling the Commission and the public what was wrong with the system…” - Quote from a referee
Finalists of the 2014 Children’s Law Awards
Also a big congratulations to al of the finalists of the 2014 Children’s Law Awards:
The National Award For Outstanding Legal Representation
Hayley O’Hara
Nominated by Peter Collins, Director of Legal Services at Aboriginal Legal Service of Western Australia (Inc.)
In Western Australia, Aboriginal children and young people are amongst the most imprisoned in Australia, representing the most over-policed section of the Western Australian community. The Aboriginal Legal Service of WA acts for numerous Aboriginal children in custody or often facing serious criminal offences.
Hayley O’Hara has worked as a criminal lawyer with the Aboriginal Legal Service of WA Perth office for the last four years, practicing exclusively in the Perth Children’s Court. Prior to this she worked in the Carnarvon office for several years. Hayley faces the challenges of representing these children day in and day out. She treats each Aboriginal child she represents with respect and compassion leading to her exceptional effort to ensure a just outcome for each child.
“…her absolute strength is that she's really dedicated and passionate about the young person being heard, and being the medium through which that is done….there’s no diminished treatment, she is very respectful of the young person themselves and an issue which they see as important to be raised…” - Quote from a referee
Murray Watt, Katie Robertson, Jacob Varghese and Maurice Blackburn Lawyers
Nominated by Dr Angus James Francis, Principal Solicitor at Refugee and Immigration Legal Service
Babies born in Australia to asylum-seeker parents face the legal uncertainty of being classified as “unauthorised maritime arrivals”, without ever having arrived by boat. The effect of this is the policy that these babies are sent to offshore processing centres at the age of 28 days.
Murray Watt, Katie Robertson, Jacob Varghese, together with a team from Maurice Blackburn lawyers, have been conducting landmark litigation on a pro bono basis on behalf of Baby Ferouz, an Australian-born baby, and his Rohingyan asylum-seeker family, preventing their removal to Nauru this year. The firm’s involvement in the Baby Ferouz case has resulted in Maurice Blackburn representing a further 60 children born in Australia to asylum-seeker parents.
“Had Maurice Blackburn not come in at that point, we could have lost a huge opportunity to right a wrong... This family is stateless…so, to raise expectations of those people, who have been in and out of camps for the best part of the last 20 years,…it's really dangerous. I think that the commitment to the end game is absolutely something that's very unique about Murray's contribution…” - Quote from a referee
NAAJA Youth Justice Team - Shaleena Musk, Franky Bain, Kelly Goodwin, and Terry Byrnes
Nominated by Pippa Rudd, PHD Student at Menzies School of Health Research
Aboriginal children and young people in the Top End face disadvantage, cultural barriers, and involvement in the child protection or criminal justice systems. A particular difficulty is the inability to properly understand the legal process and have appropriate support services. Without strong legal representation, these children can find themselves remanded in custody or in other tough circumstances.
The North Australian Aboriginal Justice Agency’s Youth Justice Team was formed in 2013. The collaboration of the team members in providing individual case management for children, allows the full circumstances of each young person to be taken into account by the Court. The NAAJA Youth Justice Team works tirelessly, representing Aboriginal children and since being set up, there has been a marked reduction in the number of young people remanded in custody.
“The NAAJA team has, I think, acted in that capacity to locate and bring together various services around young people in a way that the government departments have not been able to do so far... they deal with problems that other jurisdictions don't see: young people who don't speak English, who you have to find an interpreter for, who you then have to carefully take instructions from through an interpreter; trying to find family…An outstanding performance…” - Quote from a referee
The National Award For Outstanding Contribution To Policy Or Law Reform
Elizabeth Handsley
Nominated by Morry Bailes, President of the Law Society of South Australia
A challenge facing Australia is the interaction of children and young people and the media. Given the ever-changing nature of the media, the legal regime surrounding this area is very new and developing.
Elizabeth Handsley, a Professor of Law at Flinders University and the President of the Australian Council on Children and the Media since 2010, has worked tirelessly in, among other things, the creation of children’s media law as a recognised legal field including the amendment of the guidelines for MA15+ video games.
“She is such a broad minded but quite focussed academic that gets right down to the nitty gritty and is able to spell out what is necessary in terms of reform in relation to children and media...She's a very rigorous researcher. She's very principled. She is a leader in the field. The idea of children and media and keeping children's best interests at heart are central...” - Quote from a referee
Save the Children, Tasmanian Supporting Young People on Bail Program
Nominated by Stuart Oldfield, Area Manager - Community Youth Justice at the Department of Health and Human Services (TAS)
Tasmania has high rates of youth offending. Many of these children and young people are held in custody before their hearings.
In response to this, the Save the Children Supporting Young People on Bail Program in Tasmania was established. The program supports young people who are on bail by designing individual Bail Support Plans which contain goals and aspirations with regard to educational, vocational/employment and recreational activities. As a result, Tasmanian legislation was amended this year to accommodate the idea of the Bail Support Program to provide the opportunity for a Magistrate to allow a young person to engage in a process called Bail Review.
“The magistrate is placing great weight on the written Bail Support Plan and the written progress reports of…young people making proactive social steps to better themselves and keep themselves out of trouble, and not remanding many young people on bail...The numbers of youth on remand has significantly reduced over the last 3 years... by about 25%...” - Quote from a referee
Antoinette Carroll
Nominated by Peggy Cheong, President of the Law Society of the Northern Territory
On any given night in Alice Springs, close to 100% of the children and young people in detention are Aboriginal. The youth sector is severely under-resourced and governments frequently adopt strategies which are tough on youth offenders. There is therefore a significant need for independent youth justice advocacy in Central Australia.
For 15 years, Antoinette Carroll has been a strong advocate and passionate voice for the Aboriginal children in Central Australia. In 2007, she successfully obtained the funding for a program she developed, known as the Youth Justice Advocacy Project (YJAP). The YJAP is now considered a lead agency of systemic advocacy for the policy and law reform of the youth justice system by bringing together the needs and voices of Aboriginal children and alerting the government and community to these needs.
“I have worked for 17 years on and off as a youth justice lawyer among other things, but [Antoinette] taught me and has given me more perspective on seeing things from a young person’s point of view in the time that I have worked with her than I would otherwise have had…” - Quote from a referee
Bulletin Articles
Disclaimer
Please note that material in this Bulletin is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons or the views of the firm’s clients.
Update from National Children's Commissioner, Megan Mitchell
Now, eighteen months into my role as Australia’s first National Children’s Commissioner, I have had the chance to reflect on what I have learned and set a course for myself in the role.
My initial priority was to conduct a listening tour which I called the Big Banter - to hear directly from children and their advocates about what issues are most important for children, to inform my priorities for action, and to hear about how I could best engage in my future work.
Through this consultation process I met with well over 1,000 children face-to-face, and heard from a further 1,300 or so children online and through the post. I also heard from hundreds of children’s advocates. The Big Banter officially concluded in September last year and the Children’s Rights Report 2013 has since been tabled in Parliament. I was able to make sure the report reflected the voices of the children I met - a practical demonstration of how children’s voices can be put in front of decision makers.
What I learned from children was that they want to be with their family and with their friends, and be safe. They enjoy their freedoms and being able to play, being active and having fun, but they also appreciate fair boundaries and rules. They are particularly concerned about the level of violence, aggression and bullying in the community, and they would like to live free from drugs, alcohol and smoking.
Children worry that some children can’t afford to do or have the things they would like, and they want more things to be available for free. They also want people to show more respect for one another, and they want to be respected and listened to. And they definitely want to have a say and to have their voice heard. Many children I spoke to wanted to be more involved in decision making and political processes, and I have no doubt they would be quite capable of this.
The things that children told me directly shaped the five broad priority themes for my future program of work set out in my first report to Parliament. These were: the right to be heard and participate; freedom from violence and abuse; the opportunity for all children to thrive; engaged citizenship; and action and accountability.
As National Children’s Commissioner, the Convention on the Rights of the Child provides the main impetus for my work.
The Convention is the most ratified international human rights treaty in the world. It makes clear that children have the same human rights as adults, but that they also are entitled to special protection because of their unique vulnerabilities. By ratifying the Convention in 1990, Australia promised to protect and uphold the rights of children.
The Big Banter was intended to keep faith with Article 12 of the Convention. Article 12 of the Convention gives to every child, including very young children, the right to be taken seriously and be heard in matters affecting them. These views should be given weight in accordance with the child’s age and maturity.
Children cannot exercise their rights if they are not recognised, heard and given agency. This is why Article 12 is one of four guiding principles of the Convention. It recognises that the right of children to have their views respected is a gateway to all of the other rights in the Convention, and the key to their active citizenship.
Article 12 is fundamentally about empowerment, and in my interactions with children it is clear that even just having the knowledge that they are rights holders has an empowering effect.
As National Children’s Commissioner, I am especially interested in how we can promote meaningful participation of children in the decisions and processes that affect them.
In my 2013 report to Parliament, I made a recommendation that the Government sign on to the Third Optional Protocol to the Convention on a Communications Procedure. Signing on to this Protocol would allow individual children in Australia to submit complaints regarding specific violations of their rights across the whole spectrum of rights under the Convention.
This is especially important for children in vulnerable situations, like those involved in care and protection settings, juvenile justice systems, and family court proceedings, where the decisions that are being made have a significant impact on their lives, both immediately and in the long term.
Being able to be heard, raise concerns, and be taken seriously also acts as a strong safeguarding measure for children.
Hearing from children not only empowers and protects them, but also helps adults to get things right. Every day, policies, programs and laws are being designed and delivered that impact directly or indirectly on children. As the experts in their own lives, ignoring their experiences and perspectives will invariably lead to interventions that just don’t work for them.
Privileging the voice of children, really listening to what they have to say and taking it on board, is a powerful message to children about their value.
Children are particularly vulnerable to having their rights and freedoms abused or restricted. In this context, processes for receiving information about breaches of rights and freedoms should be accessible to children. We also need to make sure that existing mechanisms for resolving complaints and concerns are accessible and available to children.
Additionally, children should know the laws and their rights in respect of privacy, cyber-safety and bullying, how they can be protected from exploitation and abuse, and where they can go to for help.
It is my vision that every community, neighbourhood and organisation across the country takes on the challenge to be child safe and child centred. Finding ways to hear from children and genuinely engaging with them is the most fundamental of all building blocks for this to happen.
Building the agency of children goes hand in hand with the need to provide them with adequate protections as they grow and develop. For this reason I am currently undertaking a project on intentional self-harm and suicidal behaviour among children and young people. This project not only arose from some of the feedback I received during the Big Banter, but also because of the alarmingly high rates of suicide and self-harm among Australia’s young people today.
Intentional self-harm and suicidal behaviour in children and young people is a serious issue in Australia and overseas. The latest available data from 2012 shows that intentional self-harm was the leading cause of death among Australian children and young people aged 15 to 24.
For the same year, there were 10,699 instances of hospitalisation involving intentional self-harm for children aged between 5 and 24.
We know that many more children and young people intentionally self-harm than present to hospital. In 2012, the Kids Helpline responded to 15,887 contacts by children and young people aged 5 to 25 who were assessed to have self-injury and self-harming behaviours.
The aim of this project is to gain a much deeper understanding about what is happening for our young people, and what can be done to improve supportive interventions and increase help-seeking behaviour.
To date, I have received 140 written submissions, held 12 expert roundtables, conducted a range of individual consultations across Australia, undertaken a review of literature and relevant research and commissioned additional data. The results of the investigation will form the substantive content of my 2014 report to Parliament.
Megan Mitchell (National Children’s Commissioner), Australian Human Rights Commission.
Australia’s implementation of the Convention on the Rights of the Child
It’s been 24 years since Australia ratified the Convention on the Rights of the Child, but there’s still a lot of work to be done, write Erica Long and Guy Baldwin.
The Convention on the Rights of the Child plays a critical role in the international human rights treaty system by recognising that children have agency as rights holders while acknowledging children’s vulnerability as a basis for special protection. Having entered into force on 2 September 1990, its provisions enshrine a child’s rights to life, survival, development and non-discrimination, and emphasise the need to consider a child’s best interests and views in reaching decisions affecting him or her. The treaty has been widely ratified. Only the United States and Somalia have not ratified the convention, while South Sudan is not a signatory.
Australia ratified the convention in December 1990. Its ratification was subject to Australia’s reservation to article 37(c) of the convention which requires that children not be detained with adults. Due to this reservation and other ongoing issues, such as Australia’s detention of asylum seeker children, Australia’s implementation of the convention has received a mixed reception from the Committee on the Rights of the Child, the body of independent children’s rights experts tasked with monitoring the convention’s implementation.
The Committee’s Concluding Observations
The Committee monitors implementation of the convention through its reporting and Concluding Observations mechanism. The convention requires the Committee to issue Concluding Observations in response to periodic reports provided by State parties to the convention. Concluding Observations contain an assessment of the State’s record in complying with its obligations under the convention and recommend ways in which the State may enhance its implementation of the convention. Concluding Observations are an important means of stimulating systemic improvements to human rights in a State. The Committee has issued Concluding Observations on Australia’s implementation of the convention on three separate occasions – 21 October 1997, 20 October 2005 and most recently, 28 August 2012.
Positive aspects of Australia’s compliance
In its 2012 Concluding Observations, the Committee commented favourably on a number of recent developments across a range of different areas. These include:
Education: The introduction of the Education and Care Services National Law Act 2010 (Cth), which creates a national quality framework for early childhood education and care, and the Children’s Education and Care Quality Authority’s work in implementing the framework.
Bullying: Measures taken to combat bullying in schools such as the National Safe School Framework and the ‘Bullying. No Way!’ program.
Family law: Amendments made to legislation relating to family law by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) in order to prioritise the safety of children.
Data collection: Projects of the Australian Bureau of Statistics to collect data relevant to Australia’s implementation of the convention, including its Longitudinal Study of Australian Children and Longitudinal Study of Indigenous Children, and other data collection measures such as the Australian Early Development Index.
Indigenous children: Australia’s National Indigenous Education Action Plan 2012–2014 and National Partnership Agreement on Indigenous Early Childhood Development.
Privacy: The Office of the Australian Information Commissioner’s guidelines on handling the personal information of children, pursuant to the Privacy Act 1988 (Cth).
Disability: The assessment of the disability support system conducted by the Productivity Commission in July 2011.
Paid parental leave: Australia’s implementation in 2011 of a paid parental leave scheme, although the Committee expressed concern that the scheme was ‘fixed at the national minimum wage’ and ‘is shorter than the required six months to exclusively breastfeed children’.
Since the 2012 Concluding Observations, further initiatives have been undertaken to advance Australia’s implementation of the convention, including:
Big Banter Tour: The inaugural listening tour of the National Children’s Commissioner, Megan Mitchell, which was intended to assist the Commissioner to understand the issues important to children, increase her profile across the nation and facilitate the input of children’s voices in setting human rights priorities. The tour should aid Australia in meeting its obligations under article 12 of the convention, which protects the right of children to express their views freely in all matters which affect them.
Sex Discrimination Act 1984 (Cth) amendments: The Commonwealth Government’s amendment of the Sex Discrimination Act 1984 (Cth) to include discrimination on the basis of sexual orientation, gender identity and intersex status (addressing past criticism from the Committee about the lack of such protection).
Areas requiring improvement
Australia has been heavily criticised in respect of some aspects of its implementation of the convention. Two of the most discussed issues are those of asylum seeker children and children detained with adults (addressed below).
In the 2012 Concluding Observations, the Committee reiterated numerous concerns which have failed to be addressed notwithstanding the Committee’s previous Concluding Observations. These concerns include:
Child rights legislation: The absence of comprehensive child rights legislation at the national level giving full and direct effect to the convention in Australia’s national law. Two states have passed such legislation which has resulted in what the Committee describes as ‘fragmentation and inconsistencies in the implementation of child rights across its territory’. The implication of this is that children in similar situations across Australia are subject to variations in the fulfilment of their rights depending on the state or territory in which they reside.
Disaggregated data: The lack of disaggregated data on children, analysed according to ‘ethnicity, refugee, migrant and internally displaced children, child abuse and neglect and children who are victims of sexual exploitation’.
Aboriginal and Torres Strait Islander children: The continuing ‘serious and widespread discrimination’ faced by Aboriginal and Torres Strait Islander children, including discrimination in relation to the provision of and accessibility to basic services, their significant overrepresentation in the criminal justice system and in out-of-home care, and their treatment under the Northern Territory intervention legislation (discussed in further detail below).
In addition, the Committee noted other areas where action was required, including:
National plan of action: The lack of a national plan of action for implementing the convention.
Violation of child rights by Australian companies: Reports of Australian companies’ involvement in violations of children’s rights in the Democratic Republic of Congo, the Philippines, Indonesia, Fiji and Thailand.
Corporal punishment: The continuing lawfulness of corporal punishment under the defence of ‘reasonable chastisement’, a practice which has come under continued criticism domestically, including from the Royal Australasian College of Physicians.
Mental health: The low funding level for mental health, with the Australian Institute of Health and Welfare in 2010 highlighting mental health as a leading issue for children.
Queensland’s criminal punishment of young people: The criminal punishment of 17-year-olds in the adult justice system in Queensland. Since the 2012 Concluding Observations were released, Queensland has made amendments to the Youth Justice Act 1992 (Qld) which, among other things, remove the principle that detention is a last resort (see article “Detaining kids in Queensland” in this Bulletin).
Aboriginal and Torres Strait Islander children
The Committee highlighted specific concerns surrounding Australia’s protection of Aboriginal and Torres Strait Islander children including:
- The inadequacy of Aboriginal and Torres Strait Islander representation in the existing children’s rights independent monitoring mechanisms and other related institutions such as Children’s Commissioners or independent guardians.
- The allocation of resources and the lack of budget dedicated to children in disadvantaged situations such as Aboriginal and Torres Strait Islander children.
- The punitive nature of Australia’s Northern Territory Emergency Response Bill 2007 (Cth) which allowed for punitive reductions to welfare payments for parents whose children truanted.
- The inadequate consultation and participation of Aboriginal and Torres Strait Islander persons in the policy formulation, decision-making and implementation processes of programmes affecting them.
- The difficulties faced by Aboriginal persons in relation to birth registration such as those who are illiterate or are unable to meet the administrative costs of birth registration.
- The large numbers of Aboriginal and Torres Strait Islander children who are being placed into out-of-home care.
The Committee consequently reiterated that Australia must regularly evaluate disparities in the enjoyment by children of their rights and combat discriminatory disparities.
Asylum seekers
The Committee has expressed ‘deep concern’ about the use of mandatory detention for children who are seeking asylum; the failure to take into account the best interests of the child as the primary consideration in asylum determinations; the attempted ‘Malaysia solution’ of the former Federal Labor Government; and the risk of conflict of interest when guardianship of unaccompanied minors is vested with the Minister for Immigration and Border Protection. Since the Concluding Observations were issued, the Immigration (Guardianship of Children) Act 1946 (Cth) has been amended so that the Minister is not the guardian of unaccompanied minors moved to a ‘regional processing country’ under the Migration Act 1958 (Cth).This has not solved the issue, but rather shifted the responsibility to another country.
The Migration Act provides that children should be detained as a last resort, but in practice the system requires children to remain in closed immigration detention until they are removed from Australia or granted a visa, unless the Minister determines that they are allowed to live in community detention. As at 31 May 2014, there were 775 children in immigration detention facilities and 1,507 children in community detention in Australia. Pleasingly, on 19 August 2014, the Minister for Immigration & Border Protection announced that all children under 10 years of age and their families in detention will be released into the community. Nevertheless, young persons still remain in detention, which is problematic. This problematic nature of detention is compounded by the risk of mental harm to children, which has led to attempts of suicide in extreme cases.
Separation of children from adults in detention
The Committee has repeatedly called for Australia to withdraw its reservation to article 37(c) of the Convention, which requires that children in detention be ‘separated from adults unless it is considered in the child’s best interests not to do so’. Australia has defended its reservation, claiming that Australia’s geography and demography make it difficult to always detain children in juvenile facilities while also allowing children to maintain contact with their families.
The Committee’s view is that the reservation is ‘unnecessary’ because Australia’s concerns ‘are well addressed by article 37(c)’, specifically the ‘best interests’ exception and the statement that the child ‘shall have the right to maintain contact with his or her family’.
Conclusion
The Committee’s Concluding Observations provide a valuable means by which Australia’s compliance with its obligations under the convention may be assessed. In recent years, the Australian Government has taken a number of positive steps towards implementing its treaty obligations, including by facilitating better communication with children, promoting non-discrimination and facilitating paid parental leave. However, the Committee’s Concluding Observations indicate that substantial work remains to be done. Further change is needed in a range of areas, including Australia’s treatment of asylum seekers, the detention of minors and the disparity in the enjoyment of rights for Aboriginal and Torres Strait Islander children, in order to give effect to international human rights norms and protect children in Australia.
Erica Long and Guy Baldwin (summer clerks), King & Wood Mallesons.
The Convention on the Rights of the Child and its new complaints mechanism – Optional Protocol 3
Aleks Sladojevic and Rebecca Stanley take a look at the nuts and bolts of a new complaints mechanism under the convention.
The Convention on the Rights of the Child is the most widely ratified treaty in the world. It is therefore perhaps surprising that it was only relatively recently that a complaints mechanism has been adopted. This mechanism, known as Optional Protocol to the Convention on a Communications Procedure (OP3), allows children whose rights have been infringed to communicate and seek an investigation of those alleged violations by the Committee on the Rights of the Child.
Background
The convention came into force on 2 September 1990 and there are currently 194 United Nations (UN) member States that are parties to the convention. It is the “most widely accepted international human rights instrument” and only three States are still yet to ratify the convention: the United States, Somalia and South Sudan.
In addition to the convention itself, there are three Optional Protocols that have been ratified by some member States. The first two protocols entered into force in 2002. They are the Optional Protocol to the convention on the Involvement of Children in Armed Conflict (OPAC) and the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography (OPSC). The third is OP3, which came into force on 14 April 2014. OP3 was adopted by the UN General Assembly in December 2011, however it required 10 ratifications before coming into force. It was only on 14 January 2014 that Costa Rica became the tenth country to ratify the Optional Protocol and as a result it became operative in April 2014. Monitoring the implementation and adherence to the convention and its Optional Protocols is the Committee. The Committee consists of 18 independent experts who receive and evaluate reports from States regarding their compliance with the convention and its Optional Protocols. Following the third Optional Protocol’s entry into force in April 2014, the Committee also has the additional role of managing a complaints process. The complaints process established by OP3 allows children and their advocates to submit to the Committee “complaints regarding specific violations of their rights” under the convention, OPAC and OPSC.
Optional Protocol 3 – an international complaints mechanism
OP3 is a mechanism for enforcing countries’ commitments to uphold the rights enshrined in the convention and its Optional Protocols. It gives the Committee the jurisdiction to investigate complaints and provide reports in relation to:
- individual complaints made by a child or a group of children and their advocates (within the jurisdiction of a state party to OP3) to allege they are the victims of a breach by that State of the convention, or either OPAC or OPSC;
- confidential inquiries by the Committee into alleged grave or systematic violations of the convention, OPAC or OPSC concerning the sale of children, child prostitution and child pornography or on the involvement of children in armed conflict;
- the investigation of a communication by one State party into the conduct of another State party where there is concern that that state has not been acting in conformity with its child rights obligations.
Limitations on complaints
The individual complaints mechanism established by OP3 is not without its limitations. Of particular importance is article 7, which deals with the admissibility of complaints and provides that a complaint to the Committee will not be admissible unless all domestic remedies have been exhausted or the application of domestic remedies has been unreasonably prolonged or is unlikely to bring effective relief. Other limitations on the admissibility of complaints include that complaints cannot be anonymous, must be in writing, repeat complaints are not permitted, ill-founded or unsubstantiated complaints will not be investigated, and alleged violations that occurred before the entry into force of OP3 by the particular state concerned are not admissible. Further, complaints must be submitted within a year of the exhaustion of domestic remedies.
Functions of the Committee
In investigating a complaint (assuming its admissibility), the Committee has several procedures and functions including:
- making a request of a State to implement interim measures pending the investigation of the complaint, to avoid irreparable harm to the victims of the alleged violation;
- making its offices available with a view to reaching a settlement;
- examining the complaint in closed meetings, as quickly as possible, and then transmitting the Committee’s views and recommendations to the parties concerned; and
- inviting the State party to follow up upon consideration of the Committee’s views.
Where are we now?
As noted above, in April 2014 a milestone was reached with the tenth country to ratify OP3 signifying its entry into force. However, for OP3 to operate as an effective global forum for the investigation and assessment of complaints about children’s rights, many more countries need to sign up and ratify this important instrument. Indeed, as explained in our article on the nation’s need to ratify OP3 in this Bulletin, Australia is one such country that disappointingly has not yet signed up to OP3. Without the commitment of nations worldwide, including those who are apparent human rights leaders, it cannot be ensured that children can have access to justice at the international level.
Aleks Sladojevic and Rebecca Stanley (summer clerks), King & Wood Mallesons.
Give Australian children a voice: the nation’s need to ratify the third Optional Protocol to the Convention on the Rights of the Child
Do Australian children have adequate complaint procedures available to them to enforce their rights? Aleks Sladojevic and Rebecca Stanley outline why Australia needs to ratify optional protocols to the Convention.
The protection of children’s rights does not only involve the enshrinement of those rights in international instruments and domestic legislation. The power that attaches to those rights is significantly lessened if there are not accessible mechanisms that allow those rights to be enforced. Disappointingly, Australia is still yet to ratify the Optional Protocol to the Convention on a Communications Procedure (OP3). Moreover, with the lack of sufficient complaints procedures in Australia, it is vital for Australian children to have recourse to an independent international arbitrator such as the Committee.
Why Australia should ratify OP3
It is concerning that the OP3 still awaits Australia’s ratification given over two years have passed since its adoption by the UN General Assembly. Importantly, OP3 does not create new substantive rights for Australia to uphold; it merely creates a mechanism by which to redress violations of rights that Australia has already committed to protect.
The Committee’s most recent report to Australia highlights a number of areas in which the country needs to improve, including: the lack of comprehensive child rights legislation at the national level; the “widespread” discrimination against Aboriginal and Torres Strait Islander (ATSI) children; the treatment of asylum-seeker and refugee children, particularly those kept in detention; the continued lawfulness of corporal punishment; discrimination against children with disabilities; child and youth homelessness; and problems with the administration of juvenile justice.
In 2012, the Australian Government made the claim that it “strongly supports the global campaign for the universal ratification of the convention and its Optional Protocols”. To demonstrate its commitment to upholding children’s rights and that the nation remains a leader in protecting human rights, Australia should move promptly to ratify OP3.
According to the Australian Government, children “are the heart of Australia’s social policy agenda”; yet failing to ratify the OP3 and allowing children recourse to international remedies appears contrary to this sentiment. Children have a “special and dependant” status which may make it challenging for them to pursue remedies when their rights are violated, and domestic remedies may not always be adequate for rights violations. A crucial element of the OP3 complaints mechanism is recourse to remedies in instances where domestic remedies are entirely exhausted, unduly prolonged or not likely to bring effective relief. Moreover, OP3 is drafted and designed to operate in such a way that it complements and supports domestic measures and procedures.
A further reason why Australia should ratify OP3 is the low burden and cost of implementation in doing so. Australia is already party and subject to a number of international human rights treaties with complaints procedures. No new obligations are placed on Australia in ratifying OP3 aside from a “commitment to co-operate” in both the communication and inquiry procedures. The implementation costs are low and ratification is unlikely to lead to an influx of complaints against Australia as the admissibility requirements for a complaint are quite strict.
Ratifying OP3 would help Australia uphold its obligations and commitments under the convention and its Optional Protocols. Under article 3 of the convention, Australia has made a commitment to having the “best interests of a child” as the primary consideration “in all actions concerning children”. Ensuring access to a mechanism enabling Australian children to voice rights, violations can convincingly be construed as within the “best interests” test of article 3. Ratifying OP3 would also assist Australia in meeting its obligation under article 42 of the convention, namely that it “undertake[s] to make the principles and provisions of the [convention] widely known…to adults and children alike.” The reason being is that, as the complaints mechanism becomes utilised, and awareness of the complaints process conceivably increases, it is more likely that the public will seek and acquire knowledge on the content of the rights contained in the convention and its Optional Protocols.
Australia’s hesitancy to ratify OP3
Perhaps one of the reasons Australia has not yet ratified OP3 is because the Government anticipates that it will generate increased pressure to change its policy in areas that have been identified by the Committee as problematic, including the standard of living for Aboriginal and Torres Strait Islander children and the treatment of asylum-seeker and refugee children.
The Committee has expressed concern at the “widespread” discrimination against Aboriginal and Torres Strait Islander children. Australia’s historical and present treatment of its Indigenous population continues to attract both attention and scrutiny on the international level. The risk of OP3 creating greater scrutiny on the international stage may form one part of the Government’s reluctance to ratify.
The treatment of asylum seeker children is also a likely roadblock to the Government’s ratification of OP3. The 2004 report by the National Inquiry into Children in Immigration Detention found that Australia’s immigration laws and their application created a detention system that “is fundamentally inconsistent with the convention”. The Committee has also expressed its concern about Australia’s “inadequate understanding and application of the principle of the best interests of the child in asylum-seeking, refugee and / or immigration detention situations”. Perhaps in the case of asylum-seeker children who have been detained, there is the very real potential that a number of individual complaints will be lodged against Australia. Notwithstanding, if Australia truly seeks to remain a leader in international human rights discourse, it should ratify OP3 and transparently address the situations and policies that currently stand in breach of the convention.
Current complaints procedures available to Australian children
While Australia has not ratified the OP3, children and young people have to rely on the domestic measures that are currently in operation. These include the making of complaints to National, State or Territory Commissioners for Children and Child Guardians and to the Australian Human Rights Commission.
State and Territory Commissioners for Children and Child Guardians
All states and territories in Australia have passed legislation creating a Commissioner or Guardian whose role it is to promote and protect the rights and well being of children and young people. Unfortunately, the functions given to these positions are not uniform across the country. Commissioners and Guardians in New South Wales, South Australia and Western Australia are limited to monitoring complaints and cannot act on individual complaints. In Tasmania, the Commissioner can investigate complaints when requested to do so by the Minister for Children. Only Commissioners in the Australian Capital Territory, Northern Territory, Queensland and Victoria have power to investigate and respond to individual complaints related to children. However, the scope of complaints investigated by these Commissioners varies according to the legislative provisions of each state and territory, though generally investigations are limited to services relating to children and young people. While some states have a broad focus, including all children, others are responsible only for children who are at risk or who are vulnerable. In general, the Commissioner will refer young people to an alternative service provider if the Commissioner is unable to deal with the complaint directly. Complaints can usually be lodged by either a young person or an adult on behalf of the child in person, by telephone or by writing to the Commissioner.
National Children’s Commissioner
In 2012 the Australian Federal Government passed legislation establishing a National Children’s Commissioner. The National Children’s Commissioner was appointed to the Australian Human Rights Commission. While the National Commissioner does not directly handle complaints and does not deal with individual children, the Australian Human Rights Commission does hear individual complaints.
The Australian Human Rights Commission
The Australian Human Rights Commission is an independent body that investigates discrimination and human rights breaches, including complaints involving children. The Commission’s complaints process aims to be as accessible as possible – individuals can submit written complaints via post or online in any language.
Conclusion
Australia has still not yet ratified OP3 and its reluctance to do so likely stems from contentious policies on and increasing international attention around the treatment of ATSI children and asylum-seeker and refugee children. However, ratifying OP3 is something Australia needs to do, not only to protect the welfare and rights of Australian children but to revive the nation’s status as an international human rights leader. OP3 establishes an important complaints procedure that complements Australia’s domestic avenues for recourse to alleged violations of children’s rights.
Aleks Sladojevic and Rebecca Stanley (summer clerks), King & Wood Mallesons.
Australia must do more to address the over-representation of Aboriginal and Torres Strait Islander young people in youth justice systems
Half of the young people in detention in Australia are Aboriginal and Torres Strait Islander. The HRLC’s Ruth Barson looks at the facts, and argues that affected communities must be consulted to find a solution.
Aboriginal and Torres Strait Islander young people are 31 times more likely to be detained, and are 4.5 times more likely to have contact with the criminal justice system (i.e. be subject to police cautioning, police referred conferencing, or court appearances), than the general youth population.
While overall detention rates for young people have remained stable over the four years to 2013, detention rates for Aboriginal and Torres Strait Islander young people continue to increase: the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs found that Aboriginal and Torres Strait Islander young people ‘are more likely to be incarcerated today than at any other time since the release of the Royal Commission into Aboriginal Deaths in Custody final report in 1991.’
Accordingly, it is critical to consider ways that the youth criminal justice system can continue to improve, so that reductions in youth detention rates can be celebrated by all.
Too many young people are on remand
For some offences, police will arrest a young person and detain them. Bail is the release of the person from detention upon their agreement to return to court to respond to the charges against them. Various bail conditions may be imposed.
If police refuse to grant bail, the young person must apply to a court for bail. If the court refuses to grant bail, the person will be held in detention – “on remand” – until they either successfully apply for bail or until the conclusion of their case (where, if they are found guilty they may be sentenced to a further period of detention).
Approximately half of the young people in detention nationally are on remand, waiting for their case to be finalised. Over half of the young people on remand are Aboriginal and Torres Strait Islander. These high rates of youth remand contrast with the adult jurisdiction, where approximately 24 per cent of the total prison population is on remand. The fact that so many young people are remanded suggests that bail systems are either not operating effectively for young people, or are being used for punitive purposes.
Remand should not be used for punishment or deterrent purposes: it should only be used to protect the community from further offending; to protect the individual if they pose a serious risk; and to guard the integrity of the trial process. Bail and remand practices should reflect the presumption of innocence and the important weight given to the right to liberty. This is particularly important because the consequences of early exposure to detention can be adverse: removal of liberty without having been found guilty; removal from family and community life; exposure to criminogenic factors in custody; and disruption to school attendance.
High youth remand rates are also concerning because young people on remand do not receive many of the therapeutic or education programs that sentenced prisoners receive, and are often housed in worse conditions. Further, they are often remanded due to unrealistic and onerous bail conditions, which prove very difficult for young people to comply with. For example, curfew conditions requiring a young person to remain within the home throughout the night, do not allow for young people exposed to problematic home environments to take protective measures, such as leaving the house at night when there is fighting or alcoholism present. Likewise, young people might cycle in and out of youth detention, being remanded for a breach of bail conditions, and subsequently re-bailed once conditions have changed. Cycling in and out of custody is highly intrusive on young people’s school attendance and social development.
Specific jurisdictional examples
Some jurisdictions have particularly problematic youth justice practices. In all jurisdictions, other than Queensland, a young person is defined as being a person aged between 10 – 17 years, whereas in Queensland, a young person is defined as a person aged between 10 – 16 years. The nature and characteristics of youth offending are different to that of adult offending, and therefore young people should not be exposed to the less rehabilitative adult jurisdiction earlier than is necessary.
Additionally, both Queensland and the Northern Territory allow for the ‘naming and shaming’ of young people: that is, media outlets are permitted to publish the names of accused and convicted young people. Naming and shaming offends young people’s internationally established rights to privacy at all stages of youth justice proceedings. Further, the naming and shaming of young people is likely to undermine their rehabilitative efforts and taint them with criminality.
Critically, Queensland has recently removed the provision in the Youth Justice Act 1992 (Qld) which requires that detention only be considered as a matter of last resort. In Queensland, Aboriginal and Torres Strait Islander young people are 15 times more likely to be in detention than the general youth population. Accordingly, these amendments have a disproportionate impact on Aboriginal and Torres Strait Islander young people.
Conclusion – we need to do better
The over-representation of Aboriginal and Torres Strait Islander young people in the criminal justice system has been an issue of national concern for a number of years. Unfortunately, respective governments’ tough on crime policies entrench rather than address over-representation. To address the over-representation of Aboriginal and Torres Strait Islander young people in detention, governments should be looking to active crime prevention and early intervention strategies; the implementation of non-custodial sentencing options; the provision of community-based dispositions; the resourcing of therapeutic court practices; and they should commit to addressing the underlying socio-economic reasons for offending in the first instance.
Importantly, all Government initiatives should be culturally relevant, and allow for self-determination by ensuring that all programs and policies are developed and implemented in proper consultation with Aboriginal and Torres Strait Islander communities. It is only by working with affected communities that Aboriginal and Torres Strait Islander youth detention rates will decrease.
Ruth Barson is a Senior Lawyer at the Human Rights Law Centre.
Forced Child Marriage in Australia: Reported incidence and responses
How common is forced child marriage in Australia and what legal and practical frameworks inform responses? Mel Pudig and Jackie Vorreiter take a look.
In 2011, a 16 year old girl applied to the Australian Federal Magistrates Court to stop her parents from taking her overseas to be married. Against her wishes, her parents had arranged for her to travel to Lebanon to marry a man who she had only met once. By court order, the girl’s parents were restrained from removing (or attempting to remove) her from Australia, her passport was surrendered and her name was placed on the Australian Federal Police’s airport watch list. This case was one of attempted forced child marriage and was described by presiding Federal Magistrate Harman as ‘one that is becoming increasingly common’.
Definition
Forced marriage is where a person is coerced, threatened or deceived into entering a marriage. It is different from arranged marriages (where the prospective spouses consent to the arrangements) and sham marriages (where marriage is used as a vehicle to help a person migrate to Australia as a spouse or partner) due to the lack of consent on the part of the victim. Forced marriage is an offence in Australia and while all instances of forced marriage are concerning, they are particularly so when the victim is a child.
Australian law provides that it is an offence to marry a person under the age of 18 unless that person is aged 16 or 17 and there is both parental and court consent (which will only be granted in exceptional circumstances). The marriage of a person under the age of 18 obtained through coercion, threat or deception constitutes forced child marriage and is an aggravated forced marriage offence, which attracts a penalty of up to seven years imprisonment.
Incidence
Internationally, forced marriage mainly affects young girls, particularly those in poor and rural parts of developing countries. A 2012 report published by the United Nations Population Fund reveals that 33 per cent of girls in developing countries will be married before they turn 18. These figures suggest that by 2030 there will be 15.1 million child marriages globally each year.
In Australia, there is currently no comprehensive research dedicated to the extent of forced child marriage. As a result, knowledge is predominantly derived from anecdotal reports, reports from community workers and a handful of cases that have reached the courts.
A recent case to come before the Australian courts concerned a young Australian woman who had been married in India to a man chosen by her parents. The woman’s parents had convinced her to travel to India under false pretences, had confiscated her passport, and had threatened to kidnap and rape the sister and mother of the man she loved in Australia. On an application by the young woman to the Family Court of Australia, the marriage was declared void. Kreet v Sampir (2011) 252 FLR 234
In 2013, the National Children's and Youth Law Centre (NCYLC) published Australia's first research examining the reported incidence of forced child marriage in Australia. From a relatively small sample of service providers across the country, the NCYLC found approximately 250 cases of forced child marriage reported to Australian agencies within a 12 month period. The NCYLC also recommended that further research be commissioned to develop knowledge about the nature and prevalence of forced child marriage in Australia and what would be effective to prevent its occurrence and to respond to individual cases.
International and national laws addressing forced child marriage
Forced child marriage is not explicitly addressed in the United Nations Convention on the Rights of the Child, but the convention does require the best interests of children to be the ‘primary concern in making decisions that may affect them’ and provides that governments should make sure that children are not abducted or sold. The convention is supplemented by the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography, to which Australia is a party, which requires parties to stop the sexual exploitation and abuse of children.
In recognition of its obligations under these international instruments (amongst others), and in response to the occurrence of forced marriages in Australia, the Commonwealth Parliament enacted the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Cth) in February 2013. The Act amended the Criminal Code Act 1995 (Cth) to make it an offence to cause ‘another person to enter into a forced marriage as the victim of the marriage’ or to be a party (other than the victim) to a forced marriage. Penalties include imprisonment for four years or seven years for an aggravated offence (which would cover the forced marriage of a child). While the amendments provided for in the Act were not specifically directed at forced child marriage, the Explanatory Memorandum to the Bill stated that the Australian Government sought to promote the rights of the child through the Bill and the additional offences.
The forced marriage of a child, and the behaviours associated with it, may also constitute a range of offences under other Commonwealth, state and territory laws. In particular, forced child marriage may involve indecent, sexual or physical assault, rape, false imprisonment, emotional or psychological abuse, kidnapping or abduction. These types of behaviours, when perpetrated against a child, constitute child abuse and are mandatory reporting issues for those mandated to report under state and territory child protection laws (for example, doctors and teachers). Once a report has been made, the child protection authorities can implement measures to keep the child safe.
In addition to contacting child protection authorities or police, any person concerned with the welfare of a child – or the child him or herself – can also make an application to the Family Court of Australia for an order dealing with “any aspect of the care, welfare or development of the child” including an order setting out measures to protect the child from forced marriage. Such measures may include that the child be taken into care of the relevant authority, that the parents hand over the child’s passport and that the child’s details be placed on the airport watch list.
Best practice in identifying and dealing with forced child marriage
What constiutes best practice is likely to depend on the particular circumstances in which forced child marriage has occurred or may occur, and the steps for dealing with one situation may be inappropriate for dealing with another. In January 2013, the NCYLC issued draft Best Practice Response Guidelines for Australia (available here). Internationally, the UK Government’s Forced Marriage Unit has published guidelines on what it considers to be best practice for dealing with forced child marriage (available here) and the AHA Foundation in the U.S. has compiled a training curriculum on the topic for law enforcement and child protection professionals (available here).
While there are differences between the principles put forward by each of these organisations – with the AHA focusing on forced child marriage in the context of honour violence, the NCYLC identifying specific steps to be taken where a child is going to be (or has been) sent overseas for the purpose of a forced marriage, and the UK Government’s Forced Marriage Unit setting out particular steps to be taken by specific agencies and organisations in situations of forced child marriage – they are generally quite similar in their approaches and reflect the fact that, in dealing with forced child marriage, the child’s best interests should be paramount.
Some of the key principles that come out of the organisations’ guidelines include:
- taking complaints seriously and not minimising the fears of the child or young person;
- ensuring that the child or young person is seen immediately, on their own and in a safe place where a confidential conversation can be had;
- explaining all of the options available to the child or young person including, for example, developing a safety plan, giving them safety advice and advising them not to travel overseas;
- maintaining communication with the child or young person and reassuring them of the confidentiality of that communication;
- refraining from contacting the child or young person’s family or community members;
- ensuring that the child or young person is not placed in foster care with members of their family or persons from the same cultural community; and
- reporting the matter to trained specialists, child protection authorities or police (where appropriate).
International action
In September 2013, the United Nations Human Rights Council (UNHRC) passed a resolution requesting a report to guide discussion on the challenges, achievements, best practices and implementation gaps for preventing and eliminating child marriage. The UNHRC recognised that the occurrence of forced child marriage is widespread and that the collaborative effort of governments, law makers, law enforcement officials, judicial authorities, traditional and religious leaders and others is required to deal with the issue.
The Office of the High Commissioner for Human Rights (OHCHR) prepared the report and it was submitted to the UNHRC at its 26th session in June 2014. The report addressed the factors that contribute to child, early and forced marriage and its impact on the realisation and enjoyment of girls’ and women’s rights. Using the report as background, a panel discussion was convened at the UNHRC’s 26th session to discuss how to prevent and eliminate child, early and forced marriage. Following on from this, the OHCHR has been tasked with drafting a summary of the panel discussions that will be submitted to the UN General Assembly, at its sixty-ninth session, and to the UNHRC, at its 27th session, in September 2014.
Going forward
Establishing global best practice principles is likely to be a difficult task. While persons responsible for forced child marriage and associated violence should arguably be punished, highlighting criminality and retribution to a victim may not always be best practice and could potentially impede investigations. It is possible that children and young people might be dissuaded from reporting incidents of forced child marriage and related violence because the perpetrators are often family members or people the victims do not wish to see punished. The same issue could arise in respect of civil penalties and protection orders as children and young people may be disinclined to seek such orders against their parents and the effectiveness of a protection order relies on the victim reporting a breach, which might be unlikely.
At the international level, it remains to be seen how the UN General Assembly and the UNHRC will respond to this issue following the panel discussion at the UNHRC’s 26th session. At the national level, the NCYLC’s draft guidelines are currently being finalised following a period of public consultation. Through the publication of these guidelines, it is to be hoped that Australia, at least, will soon have the necessary guidance to assist non-government and government agencies to deal with individual incidents of forced child marriage wherever in Australia they arise.
Mel Pudig and Jackie Vorreiter (summer clerks), King & Wood Mallesons.
Naming and shaming repeat juvenile offenders
Queensland’s new ‘name and shame’ laws targeting young people are in stark opposition and undermine well‑established children’s rights principles found in the Convention on the Rights of the Child of which Australia is a signatory, write Elouise Flowers and Sarah Hammond.
In September 2013, Queensland’s Attorney-General, the Hon. Jarrod Bleijie announced a plan to name and shame juvenile offenders in an overhaul of the Youth Justice Act 1992 (Qld) (the Act). These reforms were enacted in February 2014, as part of the Newman Government election promise to crack down on youth crime.
The amendments to the Act allow the media to publish identifying details such as names and photos of repeat offenders between 10 and 16 years of age (as in Queensland a child is considered an adult at 17 years, not 18). This includes details of bail hearings where the child appears, which occur before any trial and before the child has even been found guilty or not.
The publication of young offenders’ details violates a child’s right to privacy, which is recognised by the convention. This is heightened by the fact that these days most publications occur online, making the information accessible by the international community and increasing the risk and scope of potential damage to a young offender’s reputation.
Consequences of reforms
Deterring, rehabilitating and essentially ‘improving’ a young person’s behaviour is the primary objective of the juvenile justice process. But publicly naming and shaming a young offender jeopardises these objectives and could cause the young offender’s reputation to become irreversibly tainted. For example, naming and shaming could reduce the child’s chances of employment and education. The spoiling of a young offender’s reputation is likely to occur in varying degrees, depending on where he or she lives and the size of the child’s community. Furthermore, the inability of a young person to find employment and engage with his or her community may operate to increase repeat offences by young persons, rather than encourage them to make positive changes.
Such reforms are reactive rather than preventative and do not have regard to the differing size and demographics of communities. A young offender in a smaller community who is exposed to these reforms is likely to be substantially more disadvantaged than a young offender in a much larger community. Whilst the impact of the laws may vary, it is undeniable that they undermine the well-established principle that the best interests of the child are to be at the forefront of all decision making.
The regime is not supported by evidence that it will decrease young-offenders reoffending. Indeed, as children are highly impressionable, labelling may cause them to identify with such a label. This is supported by anecdotal evidence from the Northern Territory that suggests naming and shaming can actually increase and embolden reoffending through a ‘badge of honour’ effect. Anti-social behaviour may be cemented, preventing children from making efforts to alter their behaviour.
Were such reforms necessary?
It is questionable whether such reforms were required. Although media coverage of juvenile crime has contributed to a belief that such crime is prevalent in Queensland, statistics revealed by Gregory Shadbolt, the Principal Legal Officer for the Queensland Aboriginal and Torres Strait Islander Legal Service, demonstrate that between the 2010 and 2012 financial years, the number of young people who appeared before the Children’s Court of Queensland and the Children’s Magistrates Court was actually 8.6% and 6.9% less than previous years.
Further, a NSW Parliamentary report conducted in 2008 found that the punitive measure of naming and shaming a young offender did not recognise the inherent impulsivity of a child, and their reduced capacity to fully comprehend the consequences of their actions.
A crime survey undertaken in July 2013 by the Queensland Government showed that 49.9% of respondents believe that naming offenders would be effective in preventing youth crime. This is primarily because some people believe that the threat of public shame will deter young people from committing crime. This argument fails to address the fact that children often act impulsively. The argument also fails to consider the research conducted in the Northern Territory in 2012, which suggests that the ultimate effect of naming and shaming a child will result in children living up to their already tarnished reputations. As part of their rehabilitation, young offenders need to engage with the community, rather be ostracised.
Another reason given in support of naming and shaming young offenders is that it gives the community control. Community members can feel informed, be involved in the surveillance of offenders and it can reassure the community that something is being done about juvenile crime. However, naming and shaming an alleged child offender seems to be clearly against the best interests of the child principle protected in the convention. Children can be put in danger of vigilante revenge, and public identification could negatively affect their ability to engage with the community and reduce their education and employment opportunities in the future. Naming and shaming may also operate to encourage further community scrutiny than is necessary. Such scrutiny may also extend to a young offender’s family and friends, who may be ‘shamed by association’. One Northern Territory case involved a 13 year old boy who was arrested for shoplifting and a photo of him and his sister was published in the local newspaper. Three years later the sister reported that some people still recognised her and believed she was the offender. Similarly, in the Northern Territory, the Department of Housing tried to evict a mother from her public housing after her son was charged with burglary. Exposing family members and friends to scrutiny by association effectively allows the media to single out and attack certain young people and families, based on ‘news value’, which is likely to have a disproportionate effect on vulnerable youth such as Aboriginal and Torres Strait Islander young people. Again, anecdotal evidence from the Northern Territory suggests Indigenous people are over-represented in those singled out for public identification.
Other offending states and territories
The Northern Territory and Western Australia are the only other jurisdictions that currently allow young offenders to be named and shamed in Australia. By virtue of Queensland adopting a similar stance, Australia is at risk of further international scrutiny by virtue of its non-compliance with the convention.
In the Northern Territory the media can publish both names and photos of accused young people. In Western Australia there is a much more limited system where serial anti-social offenders aged over 16 can be placed on a Prohibited Behaviour Order (PBO). If placed on a PBO the name, town and photo of the person is published online and anyone is free to republish that information. Similar punishments fail to acknowledge a child’s best interests and also abuse a child’s right to privacy.
Reforms are likely to have the opposite effect
The amendments to the Act, and the current laws in Western Australia and Northern Territory, which provide for the naming and shaming of young offenders are inconsistent with the convention. Further, research suggests that the reforms and laws are counterproductive to achieving the objectives of rehabilitation, deterrence and reducing recidivism.
The measures are not in the best interests of the child by virtue of their abuse of a child’s right to privacy. The reforms not only highlight Australia’s failure to adhere to its international child rights obligations, but also reflect a general lack of understanding and research into the psychological development of a child. A further concern of these reforms is their varying degrees of detrimental impact across communities, according to their demographic and size. The potential and very real threat for these laws to negatively impact on a child’s right to education and prospects of employment pose a threat to the wellbeing of the local community, and the community at large. It is clear that these reforms are counter to the well-established principle that a child’s best interests should be at the forefront of decision making. The Queensland community is likely to feel the negative consequences of these reforms, rather than the beneficial effects they attempt to achieve.
Elouise Flowers (intern), National Children and Youth Law Centre and Sarah Hammond (summer clerk), King & Wood Mallesons.
Note: In July 2013, the Human Rights Law Centre made a submission to the Queensland Government opposing the ‘naming and shaming’ of young offenders and other proposed punitive reforms. You can read the media release and submission here.
Detaining kids in Queensland
Locking children up should only be a measure of absolute last resort, but proposals in Queensland will result in prison being the norm, rather than the exception, Melanie McLean and Sian McLachlan report.
The Queensland Newman Government proposed a number of reforms in the Safer Streets Crime Action Plan in order to “crack down on crime”. This was part of the Government’s Six Month Action Plan (January to June 2013) in which the Government committed to a review of the Youth Justice Act 1992 (the Act). One of the proposed reforms in the plan was to amend the Act by removing the statutory principle of reserving detention as a last resort when sentencing a child. This is inconsistent with Australia’s obligations under the Convention on the Rights of the Child.
Law as it formerly stood
Queensland legislation formerly stated that a detention order should only be imposed on a youth as a last resort and for the shortest appropriate period (Last Resort Principle). This conforms with Article 37(b) of the convention, which states:
The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
UNICEF has summarised this Article to mean that a child should only be arrested or put in prison as a last resort and for the shortest possible time.
Legislative reform
The Queensland Government commenced a formal review of the Act, including the launch of a public survey and discussion paper into the ways Queensland should respond to youth crime. The results of these consultations are being used to develop a ‘Blueprint for the Future of Youth Justice’.One of the discussion points in the Blueprint was whether there should be a removal of the Last Resort Principle.
The Youth Justice and Other Legislation Amendment Bill 2014 was passed on 18 March 2014 and came into force ten days later. This Bill amended the sentencing principles under section 150 to read:
This section overrides any other Act or law to the extent that, in sentencing a child for an offence, the court must not have regard to any principle that a detention order should be imposed only as a last resort.
This amendment not only removes the express legislative reference to the Last Resort Principle as a sentencing principle, but goes even further to expressly oust the Last Resort Principle when sentencing a child. This amendment ensures that the corresponding common law principle is not revived by the courts in sentencing child offenders. Accordingly, when deciding on an appropriate sentence for a young offender for any offence that is punishable by imprisonment, the court is required to not consider any principle that a sentence of imprisonment or detention should only be imposed as a last resort.
Why the Government has proposed this reform
The Government argued that removing the Last Resort Principle was justified on the grounds that it ‘unduly inhibits courts in making sentencing orders which appropriately reflect the severity of offending, hold offenders properly to account for their offending behaviour and reflect the community’s denunciation of serious offending’. In 2012-13, almost half of all offences were committed by approximately ten per cent of young offenders. It is within this context that the Government argued that the community expects more effective responses to youth crime from the Government.
The rationale for removing the Last Resort Principle from the Act and the Penalties and Sentences Act 1992 is to ‘ensure the punishments handed down to both child and adult offenders fit the severity of their crimes, communicate the wrongfulness of offending and protect the community from criminal behaviour’. Queensland’s Attorney General and Minister for Justice Jarrod Bleijie said in support of the amendment:
These amendments allow authorities to respond quickly and effectively to serious and repeat offenders while ensuring at-risk young people are diverted away from the system through early intervention and reintegration into the community.
The evidentiary basis for such an assertion is somewhat out-dated. There is commentary from the early 1990s which indicates that detention for children can be effective by removing children from the community where they face pressures to offend. Notably, this commentary discounts the idea that these same pressures can come from within juvenile detention centres.
Is this reform the right choice for Queensland’s children?
Opponents of the Bill favour solutions that are “evidence-based”, such as rehabilitation and early intervention. South Brisbane MP Jackie Trad said the laws were a step backwards and flew in the face “of decades of learning”. Indeed, more recent studies suggest that detention not only fails to increase the chances of successful rehabilitation, but that detaining a child at a younger age can actually increase their chances of reoffending. On the other hand, diversion justice models have generally been effective in decreasing the rate of repeat offending by young people, and have helped children to “accept responsibility for their actions and understand the impact of their actions on others”.
Youth offender rates in Queensland have been decreasing over the past five years. If youth crime is not on the increase and detention does not reduce repeat offending, the proposed reforms fail to protect both the community and its children.
Conclusion
The reform that removed the Last Resort Principle is contrary to Australia’s international obligations under the convention. Under the Convention, the best interests of the child should be the primary consideration in all actions concerning children. Additionally, other studies have shown that detaining children is ineffective in preventing reoffending. This regressive reform is a populist proposal that appears to cast aside the Queensland Government’s obligation to put the interests of the child at the forefront of any legislative reform that affects the State’s youth.
Melanie McLean (law clerk) and Sian McLachlan (summer clerk), King & Wood Mallesons.
Note: In February, the Human Rights Law Centre and Aboriginal and the Torres Strait Islander Legal Service in Queensland wrote to the United Nations Special Rapporteur on Indigenous Rights requesting intervention against the reforms. You can read the media release here.
Human rights and child poverty – not seen, not heard?
Children’s economic, social and cultural rights are easily marginalised. Despite the widespread ratification of the Convention on the Rights of the Child, child poverty continues to prevent growing numbers of children from exercising their rights to development and well-being.
Inequality is increasing globally, and in developed nations “far too many children continue to go without the basics in countries that have the means to provide” (UNICEF 2012). Although the reasons for child poverty are complex, a nation’s wealth is not prescriptive of well-being. Good outcomes for children are linked to the availability of social protections, including social security and affordable, quality child care.
In a 2012 survey of child poverty in 35 developed countries, the USA had the second highest levels of child poverty (34th place) while the lowest occurrences of child poverty were seen in Scandinavian countries and Cyprus. Australia ranked 18th in this survey. Child poverty rates are increasing in Australia and are currently estimated to be 17% compared with national overall levels of poverty of 12%.
As recognised in the convention, children’s rights are distinguished from adults’ rights because of children’s vulnerability, dependence and evolving developmental capacity to meet their own needs. Children may suffer serious, irreversible physiological and psychological damage from deprivations from which adults might recover.
The convention has been hailed as ground-breaking for reunifying the full complement of human rights- economic, social and cultural rights, with civil and political rights - which had been split into the two major human rights treaties in 1969. By integrating all rights, the convention reiterates the implied foundational human rights principles of interdependence and indivisibility of children’s rights.
In the convention, children’s core economic rights are emphasized through an interplay of substantive and instrumental rights and obligations: ‘survival and development’, the child’s best interests, education, health, non-discrimination, an ‘adequate standard of living’, nurturing, access to culture, social security, the right to play and leisure, protection against all forms of exploitation, and so on. In many ways children’s rights are ‘welfare rights’.
Although there is no express right to freedom from poverty in international human rights law, poverty is both a cause and consequence of human rights violations and is therefore a central concern. The convention expressly articulates anti-poverty standards. Australia and other signatories to the convention are required to “recognise the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development” and ensure that parents are equipped to provide this, including “nutrition, clothing and housing.” If parents lack capacity to address children’s needs, States must provide social security and other provisions “to the maximum extent of their available resources.”
Under international human rights law, by ratifying the convention Australia promised to respect, protect and fulfil the full range of rights for all children equally. Australia is obliged to “take the necessary measures to achieve the full realization…” of these rights “…to the maximum extent of (its) available resources.” This implies the principle of non-retrogression. Once social protection measures are in place, they must not be wound back unless “fully justified”. Over recent decades, as governments have steadily dismantled social protections affecting children (such as cuts to single parent payments), full justification has been absent.
According to Australian law, Australia’s obligations under human rights treaties must be incorporated into domestic legislation in order to be enforceable. The government’s record of incorporation of children’s rights has been poor or confined to ‘child-specific’ policy areas, not mainstreamed across the whole of government. Thus, the impacts on children of cuts to social security and other measures have not been adequately considered.
In the international arena, however, greater emphasis is being placed on the debilitating effects of poverty and the importance of social protections, not least as regards children. Long term policy trends to reduce social protections both increases inequality and impacts disproportionately on society’s most vulnerable. In response to these developments, a chorus of international policy analysts in organisations including the OECD, World Bank and UN have urged against dismantling social protections, with G20 states declaring the importance of investing in social protections “to foster growth, resilience, social justice and cohesion.”
Jane Doyle is a Volunteer Lawyer at the Human Rights Law Centre.
Children’s e-Safety Commissioner
Sam Goldsmith and John Arthur search for answers to cyberbullying as they consider the Government’s proposed e-Safety Commissioner.
There is little need to detail the variety of beneficial purposes for which children can use the internet, be they social or educational. The internet is central to the life of an Australian child in this constantly connected generation but whilst key to a child’s developmental opportunities, the internet also presents new challenges and dangers to children’s rights, particularly in relation to cyberbullying.
To address the dangers of the online environment, the Australian Government has proposed to establish a Children’s e-Safety Commissioner and to implement rapid removal protocols with large social media outlets for material targeted at and likely to cause harm to an Australian child, through a co-operative regulatory scheme.
Bullying is not a new phenomenon, though advances in technology have renewed the focus on how detrimental bullying can be in a modern context. Cyberbullying may be more detrimental than traditional bullying in its ability to reach a wider audience and the willingness of bullies to surpass limits acceptable in a face‑to‑face environment.
One of the unique characteristics of cyberbullying as compared to traditional bullying is the permanence of online communication. Once information is posted on the internet, it is difficult to remove, particularly without it being seen and shared or saved widely first. In particular, material that is detrimental to a child but not illegal may be impossible to remove.
Role of the proposed Children’s e-Safety Commissioner
It is intended that the Commissioner will provide national leadership on online safety issues for industry, families, and groups responsible for the wellbeing of children. The 2014 Federal budget allocated $10 million of funding over four years specifically to enhance protections for children using the internet, of which $2.4 million has been allocated to the establishment and operation of the Office of the Children’s e-Safety Commissioner. The Commissioner’s role will include:
- improving co-ordination of the content and online safety messages provided to Australian children;
- engaging with internet service providers, social media outlets and other industry bodies; and
- establishing a single point of contact for online safety issues for Australian children and those charged with their welfare.
The Australian Government proposes that the Commissioner will have the responsibility for implementing a scheme for the rapid removal of material that is harmful to a child from large social media sites, which may include the power to issue formal warnings to individuals and participating social media sites.
Under the proposed scheme, the Commissioner would assess whether material posted to a “large online social media outlet” hosted in Australia meet the defined criteria for whether harm is likely to be caused to a child. If they are met, the Commissioner would then direct the social media outlet in question to remove the material. The outlet would be required to remove the material upon receipt of such a direction. As part of this scheme, large online social media outlets would have to develop processes to receive complaints about content directed at and potentially harmful to children, as well as for its prompt removal. The scheme may also impose financial or other penalties where there is failure of an outlet to comply with a removal direction.
The proposed regime would expand the range of online material that can be subject to removal requirements. The Australian Communications and Media Authority currently has the power to issue take-down notices, but only for material that is illegal or prohibited by Australia’s classification regime. Material that is objectionable, offensive or defamatory, but does not meet these narrow requirements, could become subject to the rapid removal regime. Among the examples of material that could fall within its scope are social media accounts set up in the name of the bullying victim, to which offensive and potentially defamatory content is posted.
The Commissioner would also be responsible for leading consultation processes to develop safety and other standards for online products. For example, in order to simplify software purchasing decisions for parents and schools, the Government proposes to develop national standards for products that help manage children’s online safety, such as in-built age-appropriate parental control features.
The Commissioner would also be responsible for providing greater support to schools in the promotion of children’s e-safety. The Government has suggested several strategies targeted at building a more proactive and consistent approach amongst schools. Among these is an assessment of how e-safety should be incorporated into the National Safe Schools Framework – a set of principles that guide school communities in the development of effective student safety and well being policies.
A case for rapid removal
In 2011, two Facebook pages which were set up in tribute to two Queensland children were defaced with vulgar content, allegedly including child pornography and bestiality. Despite public complaints, media attention and contact from Queensland police, Facebook took no measures to remove the offensive content until a request made by then-Premier of Queensland Anna Bligh to Facebook CEO Mark Zuckerberg. Unfortunately, there are many similar stories of the difficulty involved in having offensive content removed by service providers. It also remains unclear whether the social media platform (or other platforms) on which defamatory content is hosted can be liable for defamation. Given this uncertainty, a rapid removal procedure would provide clear and direct means by which to ensure the swift removal of such content, and thereby minimise the harm caused.
While Facebook removed the content in question in the scenario above, senior representatives also noted in their response to the then Premier Bligh that they believed the ‘complete prevention of inappropriate content…is not something we or any society can deliver’. Others in academia have expressed concern that increasing obligations on internet service providers and online platforms could damage the business model that makes these services possible.
A further key obstacle to the implementation of this plan will be those circumstances where the content is hosted outside of Australia, and the question of the enforceability of an order from an Australian authority to a large social media outlet overseas.
Combatting cyberbullying
The proposal has drawn various competing views on whether the Commissioner would be effective in combatting cyberbullying in Australia.
Some commentators argue parents are the best e-safety commissioners, but many parents feel ill-equipped or do not have the technological know-how to deal with online bullying. The internet also may compound the traditional difficulties of prevention and enforcement. The Commissioner is likely to be more effective in co-ordinating a national response than leaving prevention and enforcement to parents and teachers.
The proposed rapid removal scheme provides for such sanctions as the Commissioner issuing formal “warning notices” to individuals and participating social media sites. This practice is similar to that currently used by the National Children’s and Youth Law Centre as a means to dissuade and stop bullying by informing the bully of the seriousness and potential criminal consequences of their actions, of which many children and young adults may not be aware. This may be an effective tool for the Commissioner to use to address the issue.
One of the most sustainable long term strategies to promote e-safety and prevent or reduce cyberbullying is to empower children to use the internet safely and develop their ability to protect themselves. This necessitates educating children on how to use the internet safely, but also how to take action when things go wrong, and this requires access to the support of others, such as the Commissioner.
Sam Goldsmith and John Arthur (summer clerks), King & Wood Mallesons.
Potential and protection: striking a balance
Sam Goldsmith and John Arthur delve into the complexities of balancing the right to free speech and protecting children from harmful online environments.
As outlined in the article “Children’s e-Safety Commissioner” earlier in this Bulletin, the internet is central to the life of an Australian child, however it also presents new challenges and dangers to children’s rights. There is a balance that needs to be struck. On the one hand, freedom of expression and the potential for innovation should be promoted and preserved. On the other, the dangers of cyberbullying and exposure to offensive online content requires that we do more to monitor and protect children in online environments.
Right to free speech and access to information
Encroachment on the right to freedom of speech is a key argument against developing a governmental removal procedure for harmful online content. The right is enshrined in Article 13 of the convention on the Rights of the Child, which provides that children have the right to freedom of expression, including “the freedom to seek, receive and impart information and ideas of all kinds”, through any media the child chooses. However, the right is subject to express restrictions, several of which are relevant to a discussion of e-safety and cyberbullying. An infringement of children’s freedom of speech may be justified by law where it is necessary for the “respect of the rights or reputations of others”, or for the protection of “public health or morals”. In other words, it may be legitimate to limit a child’s freedom of speech where other children’s enjoyment of various rights is threatened.
Article 17 of the convention provides for the right of the child to have “access to information and material” from a range of sources, “especially those aimed at the promotion of his or her social, spiritual and moral well being and physical and mental health”. The free exchange and availability of information is one of the central merits of the internet as an educational and social tool – however, where its use is detrimental to the well being of the child, it clearly falls beyond the scope of this provision.
Countervailing rights
While freedom of speech and information are the most commonly invoked rights in any discussion of government regulation of the internet, there are many other rights that must be taken into account, particularly when the purpose of the regulation is to promote the safety of children and young people. This section discusses some of the rights that are vulnerable to the unconstrained exercise of freedom of speech, through cyberbullying activities and the potential for children to be exposed to other damaging materials online. In order to protect these rights, there will be some circumstances in which freedom of speech should be curtailed by policies such as those proposed as part of the Government’s e-safety policy.
The first article of the Universal Declaration of Human Rights establishes that “all human beings are born free and equal in dignity and rights”. Bullying in any form is clearly an affront to this fundamental principle. Bullying may also compromise the enjoyment of Article 5, which states that “no one shall be subjected to…degrading treatment or punishment”. The indignity suffered by victims of bullying may in some circumstances amount to a contravention of this principle.
Article 16 of the convention also establishes that children have the right to protection of the law against interference with their “privacy, family or correspondence”, and against “attacks” on their “honour and reputation”. Cyberbullying can infringe these rights in a number of ways. The Government referred to one prominent example of infringements on children’s privacy in its Discussion Paper – where a page is set up on which images and videos of children in compromising positions are taken without their knowledge are uploaded. The protection against attacks on reputation is also clearly compromised when potentially defamatory statements are made online – for example, in posts on bullying victims’ Facebook pages, or other pages set up by perpetrators of bullying in a victim’s name.
Under Article 24 of the convention, States Parties recognise that children have a right to “the enjoyment of the highest attainable standard of health”. Several studies have revealed that exposure to offensive online content as the victim of bullying can be associated with severe and long-lasting mental health problems. Furthermore, under Article 2 of the convention, States Parties are to take “all appropriate measures” to protect children “against all forms of discrimination or punishment on the basis of status, activities, expressed opinions”, and other matters relating to the beliefs of a child’s parents, guardians or other family members. Several of these matters are likely to be the subject of cyberbullying, which can amount to discrimination against its victims, both under the convention and Australia’s domestic law. Discrimination, threats and trolling are all examples of ‘speech’ that falls outside the bounds of freedom of expression, as this type of behaviour tends to silence the vulnerable and shut down beneficial public debate, rather than fostering it.
Conclusion
The children’s rights framework is compatible with the introduction of greater protections, such as the introduction of a children’s e-Safety Commissioner and the proposed initiatives for the Commissioner to implement. Extensive consultation with stakeholders prior to the implementation of any of these policies will be key to striking the balance between competing considerations around child safety and internet freedoms. It will also be necessary for regulatory schemes to include appropriate safeguards against their use as a means to suppress free speech, other than in accordance with the promotion of the rights they are intended to protect.
Sam Goldsmith and John Arthur (summer clerks), King & Wood Mallesons.
‘If I were Attorney General…’
Fairness, equality and the need comprehensive anti-discrimination laws
The consolidation of Australia’s anti-discrimination laws needs to be put back on the agenda, writes Australian Youth Representative to the United Nations, Laura John.
I would recognise the right of every young Australian to live free from discrimination and vilification. I would acknowledge the role of the law in building a culture of acceptance and tolerance, and invest in a comprehensive suite of reforms to strengthen the Commonwealth anti-discrimination framework.
It is clear from the thousands of young people I have engaged with this year that our generation believes in fairness and equality, and does not accept discrimination on any basis, particularly race, gender and sexual orientation. This is the generation that does not want to be defined by differences of skin colour or sexuality, but seeks to celebrate our diversity and be united in our shared humanity. To do this, we require uniform and consistent laws across all jurisdictions that recognise our fundamental right to be free from all forms of discrimination.
The current Commonwealth anti-discrimination legislative framework consists of the Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975, Sex Discrimination Act 1984 and the Australian Human Rights Commission Act 1986.
A welcome reform to this framework was the passage of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill in June 2013, which provided new protections against discrimination on the basis of sexual orientation, gender identity and intersex status. These changes are consistent with the dreams of young Australians that I have heard throughout the year such as “an end to all racial and sexual discrimination” (Nathan, New South Wales) and “for people to accept different sexual orientations” (Sophie, Victoria).
It is also positive that the Coalition Government has backed away from proposed changes to the Racial Discrimination Act 1975 that would have seen the weakening of racial vilification laws through the creation of a narrow protection and broad exemption. This is particularly significant given that racism was identified in my consultations as one of the top ten issues of concern for young people.
Despite these recent developments, the current anti-discrimination framework remains unnecessarily complex and fragmented due to its incorporation within five separate Acts that protect different attributes, apply different tests for determining discrimination and cover different aspects of public life.
If I were Attorney General, I would seek to strengthen this framework by consolidating our anti-discrimination legislation.
Such a proposal is not new. It was discussed by the Senate Standing Committee on Legal and Constitutional Affairs in its 2008 report on the Sex Discrimination Act 1984 and was considered again in detail in February 2013 after the previous Labor Government released an exposure draft for the consolidation of Commonwealth anti-discrimination legislation in the Human Rights and Anti-Discrimination Bill 2012. The majority of the Committee supported the passage of the Bill with amendments, but the Labor Government deferred consolidation and the issue has not been actively pursued by the current Coalition Government.
Understandably, consolidation of this complex framework requires thorough investigation to ensure that fundamental rights are protected and the appropriate balance is struck between the right to be free from discrimination and the right to free speech. It was this balance that caused community concern in the initial exposure draft released by the previous Labor Government and was a prominent feature of the debate around changes to the Racial Discrimination Act earlier this year.
Yet mere complexity should not be a barrier to introducing reforms that will benefit all Australians, particularly young Australians who have shared with me stories of their experiences facing discrimination on the basis of their ethnicity, sexual orientation, gender or disability. For these young Australians, and for future generations, we must do better when it comes to protection against discrimination.
A consolidated anti-discrimination framework should build on the provisions in the exposure draft and respond to concerns raised by the community about the proper limits on free speech. In particular, it is desirable to create one test for discrimination that applies to all attributes and to recognise discrimination on the basis of a combination of attributes.
If I were Attorney General, I would recognise that our anti-discrimination framework must be supported by comprehensive and accessible human rights education. Many young Australians who I have spoken to this year have requested education about life skills including information about exercising their legal rights. This education should be integrated within the school curriculum and compulsory for all students.
If I were Attorney General, I would also recognise that the law plays an important role in setting the parameters of acceptable behaviour and creating a culture of acceptance. I would understand that a comprehensive anti-discrimination framework sends a strong message to the community that discrimination on any basis does an injustice to us all, particularly to young Australians who so strongly desire a society free from prejudice and bigotry.
If I were Attorney General, I would be proud to serve this passionate and committed generation of young Australians and I would strive to create with them the future that they deserve.
Laura John is the Australian Youth Representative to the United Nations 2014.