AUSTRALIA: Children's Rights References in the Universal Periodic Review

Summary: A compilation of extracts featuring child-rights issues from the reports submitted to the first Universal Periodic Review. There are extracts from the 'National Report', the 'Compilation of UN Information' and the 'Summary of Stakeholder's Information'. Also included is the final report and the list of accepted and rejected recommendations.

Australia - 10th Session - 2011
27th January, 2.30pm to 5.30pm

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National Report
Compilation of UN information

Stakeholder compilation
Accepted and rejected recommendations

National Report

7. Australia is a stable, culturally diverse and democratic society. The estimated resident population is 22 million people. Of this population, almost one quarter was born overseas. The estimated Indigenous population is 2.5 per cent. The total number of children aged 0–14 years is approximately 4.1 million.

38. Australia is a party to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the ICCPR, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the CRC and the CRPD. Australia has reservations to certain obligations under the CERD, the ICCPR, the CEDAW and the CRC, which it reviews regularly.

55. In February 2008, the Australian Government made an historic formal Apology to Australia's Indigenous Peoples and in particular the Stolen Generations, who were removed from their families. The Apology recognised the laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss on Australia's First Peoples. The Apology was followed by a significant commitment to invest in housing, health, early childhood development, education and remote service delivery to advance the fundamental social and economic rights of Indigenous peoples.

57. Many Indigenous peoples in Australia face significant disadvantage. Indigenous peoples experience poorer education, employment, income and home ownership outcomes than other Australians. They also experience higher rates of family violence, child abuse, representation in prisons and representation in child protection. In the past, health, education and community services provided to many Indigenous people in regional and urban areas have been inadequate. The gap between Indigenous and non-Indigenous life expectancy at birth is currently estimated at 11.5 years for males and 9.7 years for females. The Indigenous infant mortality is twice the rate of non-Indigenous infants. These statistics present substantial challenges.

58. The Council of Australian Governments (COAG) has agreed to a partnership between all levels of government to work towards closing the gap in opportunities and life outcomes between Indigenous and non-Indigenous Australians. Critical to this agenda are six clear and specific targets to: reduce significantly the gap in life expectancy within a generation; halve the gap in mortality rates for Indigenous children under five by 2018; ensure access to early childhood education for Indigenous four-year-olds in remote communities by 2013; halve the gap in reading, writing and numeracy for Indigenous children by 2018; halve the gap for Indigenous students in Year 12 or equivalent attainment by 2020; and halve the gap in employment outcomes between Indigenous and non-Indigenous Australians by 2018.

62. The Northern Territory Emergency Response (NTER) is a set of measures designed to protect children, make communities safe and build a better future for people living in Indigenous communities and town camps in the Northern Territory. The NTER was announced by a former Australian Government in June 2007 in response to an independent report which brought national attention to evidence of child abuse in some of the Northern Territory's Indigenous communities. Measures introduced included provision of additional policing, child health checks, repairs to community infrastructure, alcohol and pornography restrictions and income management. The legislation introducing these measures stated that they were special measures for the purposes of the Racial Discrimination Act 1975 and were excluded from the operation of Part II of that Act (which prohibits racial discrimination).

84. Australia recognises that children and young persons have particular interests and vulnerabilities which require special protection. The Commonwealth and States and Territories have a broad range of legislation in place to protect children relating to issues such as guardianship, child protection, adoption and young offenders.

85. Australia is committed to improving outcomes for, and tackling violence against, children. In April 2009, the Australian Government endorsed a National Framework for Protecting Australia's Children. The National Framework aims to ensure that Australia's children and young people are safe and well, and that there is a substantial and sustained reduction in child abuse and neglect in Australia over time. The National Framework was developed through a strong partnership between governments and the non-government sector and extensive consultation. It will operate through a series of three-year implementation plans and will explore ways to address the specific needs of Indigenous and other vulnerable children.

86. The rights of children play an important part in the development and application of family law. In 2006, the Australian Government introduced a series of changes to the family law system. These included changes to the Family Law Act 1975 and to the family relationship services system. The aim of the reforms was to bring about generational change in family law and a cultural shift in the management of parental separation, away from litigation and towards co-operative parenting. In January 2010, the Australian Government released an evaluation of the impact of the 2006 changes to the Family Law Act, prepared by the Australian Institute of Family Studies, which examines the impact of the legal changes and the new services introduced as part of the reforms.

87. Early childhood development, care and education has been established as a key national reform area by the Council of Australian Governments (COAG). Through an overarching National Early Childhood Development Strategy and a series of national partnership agreements, COAG has initiated a range of reforms, including universal access to early childhood education, providing integrated child and family services to Indigenous Australians, and a new National Quality Framework for early childhood education and care and school age care.

88. In November 2009, the Australian Government made a formal apology to child migrants who arrived under historical child migration schemes and who were often subsequently placed in homes and orphanages. This apology acknowledged that many former child migrants and other children who were in institutions, their families and the wider community suffered from a system that did not adequately provide for, or protect, children in its care.

105. One of the objects of the Family Law Act 1975 is to ensure that the best interests of children are met by protecting children from physical or psychological harm caused by subjection or exposure to abuse, neglect or family violence. In deciding whether to make a particular parenting order in relation to a child under the Family Law Act the court must regard the best interests of the child as the paramount consideration. The Australian Law Reform Commission recently completed an inquiry into the interaction between State and Territory domestic violence laws and the Family Law Act which will be tabled in the Parliament by the end of November 2010.

106. The Australian Government has taken significant measures to reduce violence against women and their children. The Australian Government is collaborating with State and Territory Governments to develop a national strategy which applies best practices in the fields of legislation, prevention, law enforcement, services and research in order to reduce violence against women. The National Plan to Reduce Violence against Women and their Children will be a series of four three-year action plans to coordinate the effort to reduce violence against women and their children. The National Plan will enable all levels of government and the community to better support victims of violence, strengthen and streamline domestic violence and sexual assault legislation, and reduce violence in future generations.

128. In Australia, around 105,000 people are homeless on any given night, with around 16,000 sleeping without shelter. While the overall rate of homelessness has been relatively stable over the last 12 years, increasing numbers of children, families and older people are experiencing homelessness. The causes of homelessness include a shortage of affordable housing, unemployment, poverty, discrimination, structural inequalities and family violence, as well as physical and mental health issues. Australia has a range of legislative and policy measures in place to address homelessness.

137. Immigration detention of unlawful non-citizens in Australia is required by the Migration Act 1958 and is intended to support the integrity of Australia's immigration program. This detention is administrative in nature and is not used for punitive or correctional purposes. Under the Immigration Detention Values, detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time. Detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of immigration detention, including the appropriateness of both the accommodation and the services provided, is subject to regular review. The Values also provide that children and, where possible, their families, will not be detained in an immigration detention centre.

UN Compilation

10. While expressing appreciation for the work of the AHRC, the Committee on the Rights of the Child (CRC) was concerned that there was no commissioner devoted specifically to child rights, and the Committee on Economic, Social and Cultural Rights (CESCR) recommended strengthening the Commission's mandate to cover all ICESCR rights. CERD urged Australia to support the AHRC through adequate financing and staffing, including through the appointment of a full-time Race Discrimination Commissioner and CEDAW recommended that Australia consider expanding the mandate of the Sex Discrimination Commissioner to address all issues of gender equality.

18. Notwithstanding important advances, the Special Rapporteur expressed concern about the 2007 Northern Territory Emergency Response (NTER) legislation in response to the situation of child abuse in Aboriginal communities, Western Australia's response to the problems faced by the Swan Valley community, land leasing schemes and 2006 amendments to the Aboriginal Land Rights Act (Northern Territory) 1976. In 2010, CERD stated that the package of legislation under the NTER continued to discriminate on the basis of race as well as the use of so called "special measures" and urged Australia to fully reinstate the RDA, including the use of the Act to challenge and provide remedies for racially discriminatory NTER measures; and to guarantee that all special measures in Australian law, in particular those regarding the NTER, be in accordance with the Committee's general recommendation on Special Measures (2009). CESCR and HR Committee raised related concerns in 2009.

24. While welcoming steps taken, treaty bodies noted that unacceptably high levels of violence against women persisted. CEDAW noted that sexual harassment continued to be a serious problem in the workplace, and recommended that Australia address the violence and abuse experienced by women with disabilities living in institutions or supported accommodation, and provide, inter alia, shelters for migrant women. CEDAW recommended that Australia adopt national legislation and the National Action Plan to Reduce Violence against Women and their Children, including a mechanism for independent monitoring; and take appropriate measures to criminalize, prosecute and punish perpetrators of acts of domestic violence. Concerned that the highest levels of violence were faced by indigenous women and girls, CEDAW further urged Australia to implement specific strategies within the National Plan and fund culturally-appropriate indigenous women's legal services. Concerned that child abuse remained a major problem and about the exposure of children to a high level of violence as well as the overrepresentation of indigenous children having one parent in prison and in out-of-home care, CRC additionally recommended that Australia continue to take measures to prevent and combat child abuse and violence against children; ensure that all victims of violence have access to counselling and assistance with recovery; and strengthen measures to address the root causes of violence within the family and strengthen its support for indigenous families and fully implement the Indigenous Child Placement Principle.

28. CAT recommended that Australia seek to prevent and promptly investigate any deaths in custody. CERD recommended that Australia, in consultation with indigenous communities, take immediate steps to review the recommendations of the Royal Commission into Aboriginal Deaths in Custody of 1991, identifying those which remain relevant with a view to their implementation. CRC and CAT recommended that Australia abolish mandatory sentencing due to its disproportionate and discriminatory impact on the indigenous population. The Special Rapporteur on indigenous people recommended that Australia take immediate and concrete steps to address the disproportionate number of Aboriginal and Torres Strait Islanders, especially juveniles and women in custody.

30. CRC and CEDAW made recommendations to address their concern that non- therapeutic sterilizations of women and girls with disabilities continued in some states of Australia.

32. CRC recommended that Australia continue and strengthen its efforts to protect children effectively from being exposed to violence, racism and pornography through mobile technology, video movies, games and other technologies, including the Internet.

36. CESCR recommended, inter alia, that social security benefits, including unemployment benefits, old age pensions and youth allowance enable recipients to enjoy an adequate standard of living. The Committee strongly recommended that Australia review conditionalities such as "mutual obligations" in the welfare to work programme and review the "quarantining" of welfare payments that may have a punitive effect on disadvantaged and marginalized families, women and children.

38. In 2006, the Special Rapporteur on the Right to Adequate Housing believed there was a serious housing crisis, which affected many sections of the population, though it had a critical and direct impact on the most vulnerable sections of the population and low- income households. He recommended, inter alia, that Australia should adopt a comprehensive and coordinated national housing policy, and develop a housing strategy that addressed structural problems, was efficient and embodied an overarching human rights approach. HR Committee and CRC also referred to homelessness, particularly affecting indigenous people and children. CESCR recommended that Australia take effective measures to address homelessness and implement the recommendations of the Special Rapporteur. CEDAW recommended strategies to prevent homelessness resulting from domestic violence.

39. While welcoming the new national approach to preserve indigenous languages, CERD was highly concerned by the recent abolition of bilingual education funding by the Northern Territory Government in the light of the precarious condition of many indigenous languages, and the lack of adequate opportunities for children to receive instruction in or of their language. CERD recommended, inter alia, that Australia, in consultation with indigenous communities, hold a national inquiry into the issue of bilingual education for indigenous peoples.

40. CESCR noted with concern the deficient quality of education provided to persons living in remote areas, in particular indigenous peoples. It also regretted that access to pre- school education was not equally guaranteed throughout Australia.

49. UNHCR submitted further detailed comments on Australia's asylum-seeker and refugee policy and legislative framework and together with three treaty bodies and the Special Rapporteur on the right to health raised concerns about the system's application in practice. CERD was also concerned by the continued suspension of the processing of refugee status assessment procedures for applicants from certain countries, notably for Afghan asylum seekers, which lacks a legislative basis and is inconsistent with the Convention. It regretted that the Australian High Court has found that it is lawful for a stateless person to be detained indefinitely. Finally, the Committee was concerned that children were still kept in detention-like conditions in various remote areas and, at times, separated from their parents. CERD recommended that Australia review its mandatory detention regime of asylum seekers with a view to finding an alternative to detention, ensuring that the detention of asylum seekers was always a measure of last resort and was limited by statute to the shortest time reasonably necessary, and that all forms of arbitrary detention be avoided; expedite the removal of the suspension on processing visa applications from asylum seekers from Afghanistan and take the necessary measures to ensure standardized asylum assessment and review procedures and equal entitlement to public services by all asylum seekers, regardless of the country of origin or mode of entry; develop appropriate reception arrangements, in particular for children; ensure in its domestic law that the principle of non-refoulement was respected when proceeding with return of asylum-seekers to countries; and accompany any changes in the processing of asylum claims with adequate protection standards for those asylum seekers whose protection was suspended.

Stakeholder Compilation

7. JS1 noted that there was a lack of integration of children's rights in Australian law and recommended the enactment of stronger legislative protections for groups such as disabled children.

11. JS1 recommended that Australia ensure that the determinations and recommendations of its NHRI were enforceable and that the Commission was sufficiently funded to independently and effectively fulfil its mandate. Expressing particular concern that there was no national policy focus or monitoring of the rights of the child, AHRC recommended that a National Children's Commissioner be established to monitor compliance with the CRC.

12. JS1 recommended that Australia develop a national policy framework for children.

14. AHRC recommended that: human rights be incorporated into the National Curriculum for secondary schools; the Government provide a comprehensive package of measures to address its commitments under the World Programme for Human Rights Education; and the Government commit to a sustained focus on community education about human rights to improve understanding and awareness of rights across society. JS1 recommended that Australia include and fund human rights education in primary school.

28. AHRC stated that women in Australia continued to experience high levels of sexual harassment and physical and sexual violence. JS1 noted that violence against women remained a major issue, particularly for Aboriginal women and women with disabilities. AI noted that the Government was drafting a National Plan of Action to Reduce Violence against Women and their Children and believed the plan should address violence against women as a societal problem rooted ultimately in gender-based discrimination. JS1 and AHRC recommended that the Government ensure adequate and sustainable funding and independent monitoring of the national plan; and improved access to legal services for women, as well as further reform of family law to better protect the safety of women and children.

29. JS1 stated that disadvantage and abuse was not consistently monitored or addressed. For example, Aboriginal children and children with disability continued to experience high levels of abuse, neglect and exploitation. JS3 recommended that the Government implement a holistic approach to child protection incorporating a public health and prevention model to reduce the over–representation of Aboriginal and Torres Islander children in the system and address the underlying causes of child abuse and neglect; and adhere to the Indigenous Child Placement Principles at all levels of government and provide clarification of the definitions for compliance.

30. AHRC called for increased attention to the prevalence of violence, bullying and harassment, particularly in relation to children, the elderly, people with disability, Indigenous peoples, people from culturally and linguistically diverse communities, people who were gay, lesbian or bisexual, and people who were intersex and sex and/or gender diverse.

31. The Global Initiative to End All Corporal Punishment of Children (GIEACPC) noted that corporal punishment in the home was lawful throughout Australia under the right of "reasonable chastisement" and similar provisions. GIEACPC noted that corporal punishment in schools was regulated at state level and was not prohibited in Queensland, the Northern Territory or South Australia. According to GIEACPC, it was prohibited in Western Australia, but the use of force "by way of correction" was lawful for schoolteachers under s257 of the Criminal Code Act and provisions for caning of boys in the Country High School Hostels Authority Act Regulations 1962 had yet to be repealed. In the penal system, corporal punishment was prohibited as a sentence for crime in all states and territories but was not explicitly prohibited as a disciplinary measure in penal institutions in Australian Capital Territory and Western Australia. With regard to alternative care settings, GIEACPC stated that corporal punishment was lawful in childcare centres in the Northern Territory and Tasmania, in residential centres in the Northern Territory, Tasmania, Victoria, Western Australia and Australian Capital Territory, and in foster care in the Northern Territory, Tasmania, Western Australia and Victoria.

34. JS1 recommended the development of a comprehensive national framework to address the over-representation of children and adults with disability in the criminal justice system.

36. JS3 expressed concern that indigenous peoples can have great difficulty communicating with police, giving evidence, consulting with and giving instructions to their lawyer, and understanding court proceedings due to lack of access to interpreter services. JS3 noted increasing demand for the legal services of the Aboriginal and Torres Islander Legal Services (ATSILS) and that Aboriginal and Torres Strait Islander women and children remained chronically disadvantaged in terms of access to justice especially in regards to situations of domestic violence. According to JS3, the Family Violence Prevention Legal Services (FVPLS) were often the only culturally appropriate legal advice option available to indigenous women. JS3 recommended that the Government, inter alia, ensure the funding of ATSILS and FVPLS was proportionately increased to equal that of mainstream legal aid services and departments of public prosecutions; and provide the ATSILS and FVPLS with long term funding agreements. JS3 recommended that the Government implement initiatives, in conjunction with Aboriginal and Torres Strait Islander communities, to reduce the incidence of family violence; and provide adequate resources for the establishment and on-going delivery of a national Aboriginal and Torres Strait Islander interpreter service.

39. JS1 recommended that Australia enact national legislation prohibiting the use of non-therapeutic sterilisation of children, regardless of whether they have a disability, and of adults with disability in the absence of their fully informed and free consent.

49. JS4 recommended that Australia continue allocating substantial capital funds to remote Indigenous schools until their facilities and resources reached acceptable Australian standards, and promote programmes geared towards rallying community support and participation in their local school at all levels. AHRC recommended the use of increasingly threatened languages, including through support for bilingual education programmes.

57. According to JS1, aboriginal children, particularly those living in remote communities, suffered from severe disadvantage, and efforts at improvement were impeded by a lack of culturally appropriate services. In that regard, WVA particularly referred to early childhood care and development programmes. It recommended that indigenous women in remote communities deserved maternal health commensurate with that enjoyed by other women in Australia.

62. JS1 recommended that all asylum seekers should be processed on-shore and entitled to adequate judicial oversight. WVA urged the Government to repeal provisions of the Migration Act that barred offshore entrants from accessing certain legal procedures and tovensure Australia did not return genuine refugees who faced the risk of persecution upon return. IPA recommended that Christmas Island detention centre be closed and all asylum seekers be housed on mainland Australia close to services. WVA recommended that the Government implement a community based detention model for all detainees. AHRC recommended that the Government lift the suspension of processing of Afghani and Sri Lankan asylum seekers; and amend the Migration Act so that detention occurs only when necessary, for a minimal period, and where it is a reasonable and proportionate means of achieving a legitimate aim. AHRC recommended that decisions to detain people should be subject to prompt review by a court and that the Government implement the outstanding recommendations of the report of the National Inquiry into Children in Immigration Detention; cease holding people in immigration detention on Christmas Island; and repeal the provisions of the Migration Act relating to 'excised offshore places'.

71. AHRC noted the Government's commitment to develop a National Plan to reduce violence against women and children.

Accepted and Rejected Recommendations

The following recommendations are pending or no clear decision was taken:

P - 86.29. Consider establishing an independent commissioner for child rights (Poland)

P - 86.38. Consider implementing the recommendations of UNHCR, human rights treaty bodies and special procedures with respect to asylumseekers and irregular immigrants especially children (Jordan)

P - 86.39. Comply with the recommendations of the Committee on the Rights of the Child and the Committee on the Elimination of All Forms of Discrimination against Women concerning the sterilization of women and girls with disabilities (Denmark); enact national legislation prohibiting the use of non-therapeutic sterilization of children, regardless of whether they have a disability, and of adults with disability without their informed and free consent (United Kingdom); repeal all legal provisions allowing sterilization of persons with disabilities without their consent and for non- therapeutic reasons (Belgium); abolish non-therapeutic sterilization of women and girls with disabilities (Germany)

P - 86.46. Strengthen the federal legislation to combat discrimination and ensure an effective implementation with a view to a better protection of the rights of vulnerable persons, in particular children, persons in detention and persons with disabilities (Morocco)

P - 86.47. Take firm measures to end discrimination and violence against women, children and people from vulnerable groups so as to enhance a better respect for their dignity and human rights (Viet Nam)

P - 86.72. Strengthen efforts to combat family violence against women and children with a particular focus on indigenous communities (United States)

P - 86.73. Adopt special legislation to prevent and combat violence against women and girls and to prosecute and punish the perpetrators (Islamic Republic of Iran)

P - 86.74. Adapt its legislation to ensure greater security for women and children (Switzerland)

P - 85.75. Introduce a full prohibition of corporal punishment within the family in all states and territories (Russian Federation)

P - 86.76. Speed up the process for the adoption of the National Plan to Reduce Violence against Women and their Children (Azerbaijan)

P - 86.77. Take steps, in partnership with State, Territory and Local governments, to further advance and accelerate implementation of the National Action Plan to Reduce Violence against Women and Their Children, so as to effectively address prevalence of violence against these vulnerable groups (Canada)

P - 86.78. Implement a national action plan to reduce violence against women and children (Switzerland)

P - 86.79. Implement immediately the National Plan to Reduce Violence against Women and their Children (Norway)

P - 86.80. Implement the National Action Plan to reduce violence against women and their children, including through an independent supervision mechanism that involves civil society organizations and take into account the specific situation of indigenous women and migrants (Mexico)

P - 86.97. Establish a National Compensation Tribunal, as recommended in the "Bringing Them Home" report, to provide compensation to Aboriginal and Torres Strait Islander people that are negatively affected by the assimilation policy, particularly as it applies to children unfairly removed from their families and the parents of those children (Slovenia)

P - 86.119. Take immediate legal measures to remove restrictions against access of indigenous women and children to appropriate health and education services and employment opportunities (Islamic Republic of Iran)

P - 86.128. Address the issue of children in immigration detention in a comprehensive manner (Philippines)

P - 86.129. Ensure that no children are held in detention on the basis of their migratory status and that special protection and assistance is provided to unaccompanied children (Brazil)

Australia did not reject any recommendations

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