Symposium – Recent developments concerning the Convention on the Rights of the Child
Tuesday 24 April 2012
Monash University Law Chambers
555 Lonsdale Street, Melbourne
Time - 9am to 2:45pm
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Associate Professor Paula Gerber: '10 things you should know about the new Optional Protocol'
Associate Professor John Tobin: 'Likely impact of the Optional Protocol on the protection of children's rights'
Ben Schokman: 'The CRC's review of Australia'
Chris Varney: 'The Shadow report to the CRC'
Alastair Nicholson: 'Child Justice programs in Vietnam and Cambodia'
Vanessa Zimmerman: 'Children's Rights and Business Principles initiative'
Report by Imogen White
The recently adopted third protocol to the Convention on the Rights of the Child may have been a triumph for child rights advocates but the hard work is just beginning, according to speakers at the Castan Centres' recent children's rights symposium. The event, held at the Monash University law Chambers in late April brought together speakers with diverse experience within Australia and internationally, before an audience of more than 100 people.
The symposium opened with Associate Professor Paula Gerber and Associate Professor John Tobin discussing the adoption of the landmark Third Optional Protocol to CROC by the UN General Assembly in December 2011, which will provide children with a means to bring allegations of rights violations before CROC. In a highly informative session, these two speakers drew attention to the contradictions inherent in the adoption of this protocol. Although it represents promising progress and significant strengthening of the international framework for the protection of children's rights, both speakers stressed that any optimism should be cautious and that expectations should be carefully tempered.
Gerber's thorough discussion of the protocol drew attention to the fact that it does not provide for collective complaints on behalf of groups of unspecified children and allows states to opt out of the inquiry procedure. Similarly, Tobin expressed a concern that it empowers CROC with the capacity to develop jurisprudence regarding children's rights norms, despite a well documented tendency to generate judgments that are - as Nettle J once noted - "long on assertion, short on reason".
Speaking to a room filled, almost overwhelmingly, with legal practitioners, Gerber echoed Tobin's concerns, cautioning that it must be children, rather than lawyers, who take "centre stage" in the children's rights movement.
In the second session, a dynamic panel explored the upcoming review of Australia's implementation of CROC. Ben Schokman, the Director of International Human Rights Advocacy at the Human Rights Law Centre opened this session by discussing Australia's periodic reporting process. He noted that the government's most recent report to the Committee on the Rights of the Child focuses too heavily on money spent, rather than on progress, priorities, and goals.
Franca Musolino, the Principal Legal Officer at the International Human Rights Law Section of the Attorney General's Department, then provided a counter to Schokman by providing intriguing insight into the bureaucratic nature of the reporting process. She responded to his criticism by highlighting the bureaucratic, "patchwork" nature of the report, where deadlines often defeat specificity.
Following on from this, Chris Varney, Former Australian Youth Representative to the United Nations discussed the process by which the 2011 Listen to Children shadow report was compiled and presented to the UN Committee on the Rights of the Child in Geneva, October 2011. Stressing that "the government will not do anything further unless there is community demand", Varney highlighted how important it is that young peoples' voices are heard in the reporting process. For Varney, unless we ensure that the voices of those who are marginalised are heard, we cannot begin to fulfil CROC's promise that all children "enjoy all of their rights".
The third session then brought the focus to the ground level, with speakers discussing innovative approaches being pursued by child focused non-government organisations. The Hon Alastair Nicholson AO RFD QC spoke about initiatives Children's Rights International have implemented to advocate for the introduction of child friendly justice systems and children's courts in Cambodia and Vietnam.
Vanessa Zimmerman, Legal Advisor at the UN Special Representative on Business and Human Rights then discussed the UN Guiding Principles on Business and Human Rights. She highlighted how states are not the only bodies responsible for protecting children's rights, and that these this initiative coming out of the UN reflects a promising step on the path to ensuring that businesses adequately respect the rights of children.
Finally, Glenn Bond, the Program Effectiveness Manager at Plan Australia, brought to attention the impact that discrimination against girls and women has on child poverty. He noted how the intersection of gender inequality and the violation of children's rights places girls and young woman at a unique disadvantage. CROC, in its attempt to be gender neutral, is alarmingly silent about the fact that female children are more vulnerable to poverty and neglect.
The phrase "wait and see" recurred repeatedly throughout the day. In her concluding remarks, Paula Gerber noted that this phrase indicates that work in the area of children's rights is a journey. She suggested that this symposium be an annual event that aims to keep a steady spotlight on children's rights by providing a space to facilitate ongoing dialogue between governments, businesses, the academy and the broader community. Often daunting and always complex, the cause of children's rights needs events like this symposium, where groups can come together to collaborate and share knowledge with the goal of stimulating ideas and actions.
In a hopeful sign, Gerber's comment that she would like to see the appointment of a National Children's Rights Commissioner took less than one week to come true. Now her wish that such a Commissioner would speak at next year's event doesn't seem so farfetched.
This symposium considered three important current issues in children's rights, from Australian and international perspectives. The first issue is the adoption of the landmark Third Optional Protocol to the Convention on the Rights of the Child (CROC) by the UN General Assembly in December 2011. This new Optional Protocol will enable children to bring allegations of rights violations before the Committee on the Rights of the Child for the first time. This development brings the Committee into line with the other UN treaty body committees, which can also hear individual complaints.
The second issue explored at the Symposium is the Committee's upcoming review of Australia's implementation of CROC, including a consideration of the Federal Government's position and the shadow report prepared by Australian civil society organisations.
The third issue discussed was the state of the art initiatives to promote children's rights in accordance with CROC. This included a review of innovative approaches being pursued by child-focused non-government organisations.
This informative and thought-provoking event brought together some of Australia's leading child rights advocates, academics and organisations.
Associate Professor Paula Gerber
Deputy Director of the Castan Centre for Human Rights Law, Law Faculty, Monash University
Abstract: In the last weeks of 2011 the United Nations General Assembly adopted the Third Optional Protocol to the Convention on the Rights of the Child. Once this latest Optional Protocol enters into force it will enable children, for the first time, to bring a complaint to the Committee on the Rights of the Child alleging violation of their rights. This landmark instrument signifies a significant strengthening of the international framework for the protection of children's rights. This paper will provide one of the first in-depth analyses of the Third Optional Protocol to the Convention on the Rights of the Child and identify the ten most important aspects of this new international instrument.
Bio: Dr Paula Gerber has been a lawyer for over 25 years. She spent five years working as a solicitor in London, and five years as an attorney in Los Angeles before returning to Australia where she became a partner in a leading Melbourne law firm.
In 2000, Paula embarked on a major career change; moving from private practice to academia. She is an Associate Professor at the Monash University Law School and a Deputy Director of the Castan Centre for Human Rights Law. Dr Gerber is an internationally recognised expert in human rights law, with a particular focus on:
- Same-sex marriage and relationships;
- Children's rights; and
- Human rights education in schools.
Dr Gerber is the author of numerous books, book chapters and journal articles including, From Convention to Classroom: Paula Gerber The Long Road to Human Rights Education (2008) and Paula Gerber & Adiva Sifris (eds) Current Trends in the Regulation of Same-sex Relationships (2010) Federation Press, Sydney.
Paula was recently awarded an ARC Linkage grant along Melissa Castan and others to investigate issues surrounding low rates of birth registration in Australian Indigenous communities and problems that flow from not having a birth certificate. There are 7 linkage partners on this project, including Plan International, Clayton Utz lawyers and the Victorian Aboriginal Legal Service.
In addition to her academic career, Paula is also on the Board of the Victorian Equal Opportunity and Human Rights Commission and a sessional member of the Victorian Civil and Administrative Tribunal.
Associate Professor John Tobin
University of Melbourne
Abstract: The adoption of the Third Optional Protocol by the UN General Assembly in December 2011 has been hailed as the greatest legal victory for children since the adoption of the CRC. Proponents of the Protocol have claimed that the individual complaint mechanism available under the Protocol will provide children with an effective remedy for violations of their rights and create body of jurisprudence that will address the uncertainties that often characterize children's rights. But there is a great deal of skepticism about the capacity of the Protocol to deliver tangible benefits for children. This paper will outline the elements of a strategic vision with respect to the use of the Optional Protocol that is designed to address the concerns of its skeptics.
Bio: John Tobin is an Associate Professor in the Melbourne Law School at the University of Melbourne where he researches and teaches in the area of human rights with a special focus on children's rights. In 2006, was a Visiting Professor at the American Academy of Human Rights and Humanitarian Law, and the Law School at New York University. In 2012 he was the Senior Scholar in Residence at the Center for Human Rights and Global Justice at NYU Law School
John has published numerous reports and articles on children's rights. His PhD examined children's right to health and his book The Right to Health in International Law was published by Oxford University Press in January 2012. He recently received a large grant from the Australian Research Council with Professor Philip Alston from NYU which aims to provide a practical and principled analysis of the rights under the Convention on the Rights of the Child in order to offer practical guidance to policy makers, practitioners, judges, academics and advocates working in areas that concern children.
John has provided human rights training and advice as a consultant and on a pro bono basis to organisations such as UNICEF, Save the Children Australia, Law Reform Commissions, the Victorian Equal Opportunity Commission, NGOs, statutory bodies, Government Departments and community groups. He is also a member of various advisory committees working on matters related to children.
Human Rights Law Centre
Abstract: In June this year, the Committee on the Rights of the Child will consider Australia's fourth periodic report on its compliance with the UN Convention on the Rights of the Child. This presentation will: (1) provide a brief overview of the periodic reporting process; (2) examine the compliance of the Australian Government's report with the Committee's reporting guidelines; (3) consider the List of Issues that has been developed by the Committee for Australia ahead of its review; and (4) present observations and reflections on the utility of the periodic reporting process itself in ensuring that states comply with their human rights treaty obligations.
Bio: Ben Schokman is the Director of International Human Rights Advocacy at the Human Rights Law Centre. Ben has worked with the Centre since 2006 and leads much of the Centre's engagement with the UN human rights system. His experience includes the coordination and preparation of NGO reports on Australia's compliance with the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and the Convention on the Rights of Persons with Disabilities, as well as, most recently, the Convention on the Rights of the Child. Ben's position at the Centre is generously supported by DLA Piper.
Principal Legal Officer, International Human Rights Law Section, Attorney General's Department
Abstract: The Australian Government is due to appear before the Committee on the Rights of the Child on 4-5 June 2012 in Geneva. The paper will set out:
- in general the treaty reporting cycle and the obligations of government
- areas of responsibility for various treaty bodies (including the CRC)
- the process that the government undertakes in preparing its written report to the Committee and what is involved in preparing for the appearance
- the value of consideration of NGO involvement, particularly shadow reports in preparing for the appearance
- the process following the appearance until the next appearance
Bio: Franca Musolino is a Principal Legal Officer jointly heading up the International Human Rights Law Section in the International Law and Human Rights Division of the Commonwealth Attorney-General's Department.
Franca studied Arts/Law at the Australian National University and has also undertaken postgraduate studies in international law at the ANU.
Franca has worked with the Attorney-General's Department since 1993 in various roles including as part of the International Trade Law Branch, the Human Rights Policy Branch and more recently with the International Human Rights Law Section. She has worked on a number of projects including privacy law reform and the development of Australia's Human Rights Framework. Franca spent seven years from 2000 until 2007 working for the United Nations Commission on International Trade Law in Vienna, Austria, specialising largely in dispute settlement.
The International Human Rights Law Section provides advice across Government on issues involving public international law, international human rights and domestic anti-discrimination law (to the extent that these laws implement Australia's international obligations), assisting in the conduct of litigation involving public international law, and conducting treaty negotiations. The Section also prepares responses to human rights communications under a number of international human rights treaties.
Former Australian Youth Representative to the United Nations
Abstract: Over the last year a range of NGOs and experts with a stake in children's rights have been delivering community education, public advocacy and collecting data and research on the state of children and young people's rights and wellbeing in Australia. The focus of this work was the 2011 compilation of the 'Listen to Children' report. This report was presented by a delegation of child rights advocates, including children themselves, to the UN Committee on the Rights of the Child in Geneva, October 2011. This Symposium presentation will discuss the key messages from the report, how children and young people contributed to both it and the Geneva presentation, and how we can all take action after Australia's upcoming review before the Committee.
Bio: Chris Varney is a Monash law student who is a passionate children's rights advocate. In 2009, he was appointed Australia's Youth Representative to the United Nations. In this role, he travelled Australia's states and territories collecting over 12,000 stories from children, adolescents and young people. Equipped with a mandate to represent young Australians, Chris began work in the 64th UN General Assembly in New York. There he delivered statements on behalf of young people, negotiated youth resolutions (including the ‘International Year of Youth') and promoted the UN Youth Delegate Program to General Assembly delegations. Upon returning to Australia, Chris implemented a ‘Report Back' tour for young Australians to honour the trust they had placed in him.
Chris has extensively promoted the:
- UN Convention on the Rights of the Child;
- World Programme of Action on Youth; and
- Millennium Development Goals.
This has seen him work with decision-makers at all levels to champion the rights of children and young people. In October, 2011 Chris reported to the UN Committee on the Rights of the Child on Australia's gaps under the CRC.
As part of his 10 years of experience in the Australian and international youth sectors, Chris has spent eight years with World Vision Australia and World Vision International. Currently he serves the organisation as a Child and Youth Participation Advisor in its Indigenous Programs Team.
Chris is completing his Law degree at Monash University and was honoured with the Student Alumni Award in 2011.
The Hon Alastair Nicholson AO RFD QC
Chair of Children's Rights International
Abstract: The paper will discuss initiatives by Children's Rights International to advocate for the introduction of child friendly justice systems and children's courts exercising juvenile justice and child protection jurisdiction over children in Cambodia and Vietnam.
It notes that while both countries have long ratified CRC there has been little attempt to modify the justice system to cope with child offenders or to deal with and protect child victims of crime and child witnesses.
Problems include lack of education and training of police, court officials, prosecutors and judges and systems of child protection are virtually non-existent. There are extensive drug and child trafficking problems and children are frequently used and abused as part of the drug and trafficking culture.
Children are often incarcerated in adult prisons and sometimes supervised by adult prisoners. There are no formal diversion programs although there are informal means of diversion involving the payment of money to corrupt officials.
Given the tragic history of both countries in modern times there is limited regard for the rule of law or the rights of children.
The profession of social work is in its infancy and there is a strong punishment ethos amongst the public and politicians.
The paper will discuss the methods undertaken to achieve progress, what has been achieved to date and what is hoped to be achieved.
Bio: Alastair Nicholson was a practising barrister at the Victorian Bar for 19 years, becoming a Queen's Counsel in 1979. He was appointed a Judge of the Supreme Court of Victoria in 1982 and resigned from that Court to become Chief Justice of the Family Court of Australia and a Judge of the Federal Court of Australia in 1988. He retired from those positions in 2004 and is now an Honorary Professorial Fellow attached to the Facility of Law at the University of Melbourne.
He is a former president of the Association of Family and Conciliation Courts based in the USA and currently chairs the National Centre against Bullying under the auspices of the Alannah and Madeline Foundation.
He has since 2004 been associated with Children's Rights International as its founding Patron and became Chair of it in 2010. It is an NGO that carries out advocacy work for children and has recently been working on the establishment of child friendly courts in Cambodia and Vietnam and promoting the rights of women and children in Afghanistan.
He is also a Board member of the Lasallian Foundation and as such has visited India and Papua-New Guinea overseeing grants the work of the Foundation in improving and assisting local organisations involved in the education and protection of children.
Business and Human Rights Specialist and Former Legal Advisor to the UN Special Representative on Business and Human Rights
Abstract: In June 2011 the United Nations Human Rights Council unanimously endorsed the UN Guiding Principles on Business and Human Rights which has become the global standard for preventing and addressing adverse human rights impacts by business. In its resolution endorsing the UN Guiding Principles the Human Rights Council decided to establish a new Working Group on Business and Human Rights - as part of its mandate to disseminate and implement the UN Guiding Principles the Working Group was asked to give special attention to persons living in vulnerable situations, in particular children. Other child rights and business developments in the last 12 months have included the launch of the Children's Rights and Business Principles jointly by the UN Global Compact, Save the Children and UNICEF and the drafting by the Committee on the Rights of the Child of a General Comment on business and human rights. This presentation will review current international and domestic developments in the business and human rights space with a focus on what guidance is available on the issue of child rights and business. In doing so it will explore the respective roles of relevant stakeholders such as governments, business, civil society and investors in helping to manage challenges to safeguard, as well as take up opportunities to realize, child rights in relation to business activities.
Bio: Vanessa provides expert advice to multi-stakeholder actors working on business and human rights issues, including Rio Tinto where she is coordinating the review of the company's human rights policies, procedures and commitments. She is also a senior consultant with the Global Business Initiative on Human Rights working on the Responsibility to Respect Human Rights in Contractual Relationships project, a joint project with the Institute for Human Rights and Business, as well as GBI's outreach in the Asia-Pacific region. Vanessa also coordinates the Global Compact Network Australia's Human Rights Leadership Group for Business and is a member of the Advisory Board of Lawyers for Better Business a worldwide networking and capacity building platform for lawyers on business and human rights.
Between 2006 - 2011, Vanessa was a Legal Advisor to Professor John Ruggie in his capacity as the UN Secretary-General's Special Representative on Business and Human Rights, as well as a research fellow at Harvard's Corporate Social Responsibility Initiative. Vanessa helped to coordinate the Special Representative's work on State roles vis-a-vis business and human rights, leading projects on topics ranging from corporate and securities law to export credit and procurement.
An Australian-trained lawyer, Vanessa has also worked with the Australian Delegation to the UN Human Rights Council and at the UN Office of the High Commissioner for Human Rights. She worked as a competition lawyer at the Australian law firm of Mallesons Stephen Jaques and at Telstra. Vanessa holds an LLM from Harvard Law School, and a LLB (Hons) and BA in Japanese and History from Monash University.
Program Effectiveness Manager, Plan Australia - Children's Rights and Gender Equality
Abstract: Plan recognizes that discrimination against girls and women is one of the main underlying causes of child poverty. The intersectionality of gender inequality and the violation of children's rights places girls and young women at a unique disadvantage. This knowledge, that girls and boys have the same entitlements to children's rights yet face different challenges in accessing them, is the motivation for Plan's Because I am a Girl campaign. The campaign builds upon the success of the Because I am a Girl report series to unite the entire organisation behind a global call to action. This presentation outlines the Policy, Programming and Marketing elements of the campaign as it gathers steam over 2012 and beyond.
Bio: Glenn Bond works as Program Effectiveness Manager at Plan International Australia. The program effectiveness team is the hub for learning and continuous improvement at Plan and Glenn is charged with progressing both the child rights and development effectiveness agendas. He oversees a team of development advisors whose portfolios include Program Quality, Policy & Learning, Protection & Inclusion and Community Engagement. Glenn moved to Plan in 2009 after several years with Save the Children Australia in similar roles.
Prior to his work with Save the Children Glenn spent several years as a freelance research, evaluation and project management consultant. Consultancies include appointments with Government departments and a range of not-for-profit and multi-lateral (UN) agencies in Australia and South East Asia. Glenn began his career in the management and delivery of domestic youth development programs. In the 1990s he worked in a range of service delivery settings and represented colleagues and constituents in peak and advocacy bodies at state and national levels.
Glenn has also worked in academic settings, both as a lecturer and as a participatory (action) researcher. He holds an undergraduate degree in Youth Affairs and a Masters Degree in Education.