Rights of Children
For ensuring the rights of children:
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The Intervention was initially justified on the basis that Australia was fulfilling its obligations under CRoC by preventing sexual abuse of Indigenous children. The Intervention was instigated to tackle the disproportionately high levels of child sexual abuse in the NT, but the shift away from this focus has been the source of most criticisms.
The focus of the Intervention has, according to reports from the Children's Commissioner of the NT, shifted away from the protection of children from sexual abuse to focusing on economic and infrastructure development. Intervention policies such as increased funding to safe houses and child protection workers were designed to combat situational causes of Indigenous child abuse and maltreatment. However, intervention policies which ostensibly have the aim of improving Indigenous children’s lives did not address underlying and structural causes of Indigenous child maltreatment and abuse. This is not consistent with Art 19 (2) of CRoC which requires preventative strategies to be employed to ensure a child's right to protection.
Protection of Children no longer the paramount objective of the Intervention
The Intervention legislative package and policies do not adequately address the needs of Indigenous children. The explanatory memorandum for the initial Bill stated that the measures would 'protect children and implement Australia's obligations under human rights treaties'. Despite this, the NTER ignored all but 3 of 97 recommendations for addressing child sexual abuse that were given in the Little Children are Sacred report. The initial legislation did not once mention child sexual abuse or the words child or children. The Intervention instead focused on periphery measures such as land leases, alcohol restrictions and welfare reform. Author of the Little Children are Sacred report Patricia Anderson has been outspoken against the Intervention since its inception, claiming now that it has worsened the disadvantage of Indigenous Australians in the NT, though Anderson has supported the prohibitive measures for alcohol and pornography. A Children's Commissioner Report in 2012, 5 years into the Intervention, highlighted that progress of the protection of children was being measured by self-reports from government bodies rather than independent analysis or sources.
The Intervention has diminished the rights of the child and of the family, by not considering the rights of the family and/or caregivers are linked inextricably to the rights of children. The Intervention measures are aimed at punishing those who commit offences relating to child abuse of against the protection of children, rather than addressing the underlying cause of the abuse. These could be better addressed by implementing educational and community support programs. Programs do not address the root of many of the problems of abuse within indigenous communities, which is the intergenerational trauma experienced by those who have lived through the Stolen Generations. The mandatory forensic health checks of Indigenous children were called invasive,ineffective, expensive and 'possibly unlawful'. The checks 'did not meet best practice or World Health Organisation guidelines' and had little effect on the children they were intended to help.
SEAM and the impact on Indigenous Children
The School Enrolment and Attendance through Welfare Reform Measures ('SEAM') was introduced in 2008 with the aim of increasing school attendance rates and substantially affected Indigenous children and families. The government argued that SEAM fulfils the state's obligation to take measures to encourage regular attendance at schools and reduce dropout rates. The specific rights identified by the government in implementing SEAM were Article 28 (1) (e) of CRoC and Article 13 of ICESCR. However, the AHRC notes that the measures must be appropriate and not unduly diminish other rights such as the right of a child to benefit from social security under Article 26 of CRoC.
Controversially, SEAM links welfare payments with children's school attendance. Making welfare payments dependent on children's school attendance infringed on the right to social security under Article 9 and 10 of ICESCR and the obligation of the state to act in the best interest of the child under CRoC. The decision to make welfare payments contingent on school attendance may violate a child's right to development as it can leave children and families without essential items such as food and clothing.
The AHRC also noted that according to the NTER Evaluation Report, there has been no observable improvement in school attendance generally between 2006 and 2010, and there was a decline after 2010. The Stronger Futures evaluation by the PJC in 2016 considered the effectiveness of the SEAM program and recognised that there was little evidence the program had been effective in improving enrolment and attendance, not only in the Northern Territory, but across the country.
The SEAM initiative ceased on the 31 December 2017 and was labelled a total failure, badly designed and woefully implemented by Indigenous Affairs Minister Nigel Scullion. The program was found to have no statistical improvement for children attending Northern Territory Government schools. The Australian and Northern Territory governments say that they will continue to operate the Remote School Attendance Strategies and continue to monitor attendance in select communities. The Remote School Attendance Strategy was implemented in 2014 and operates across 77 schools in 74 communities. The strategy attempts to tailor the approach to local context and needs, with input from the local community.
The Royal Commission into Detention and Protection of Children has been discussed under the Incarceration section of this report, but is important in the context of Australia’s human rights obligations with respect to children. The commission confirmed that the treatment of children was a clear breach of Australia’s international human rights obligations. However, the ABC criticised the Royal Commission’s report for not going far enough to protect children.
For example, the report recommended the age of criminal responsibility be raised from 10 to 12 years. Whilst an improvement, this would still fall short of the standards set by the UN Committee on the Rights of the Child, which urges states to set the age for criminal responsibility at 14 or higher.
The Castan Centre supports raising the age of criminal responsibility to 14 or higher. It is not alone in this view. Calls to raise the age of criminal responsibility to the age of 12 of higher have come from Amnesty International, Jesuit Social Services, the National Children’s Commissioner, and the ACT Human Rights Commissioner, amongst others. Significant support for raising the age has come from the Child Rights Taskforce, the NGO coalition involved in advocacy and reporting to the Committee on the Rights of the Child regarding Australia’s compliance with the treaty and their obligations. The report of the taskforce, the Children’s Report recommended:
‘That the Australian Government: prevent the criminalisation of children between ten and 13 years of age by:
(1) raising the minimum age of criminal responsibility in all Australian jurisdictions to at least 14 years;
(2) ensuring the availability of age appropriate, therapeutic, family strengthening and evidence based programs to prevent and address identifiable risk factors and anti-social behaviour for children between ten and 13 years of age; with priority for funding given to community controlled programs and services for Aboriginal and Torres Strait Islander children.’
Reasons for raising the age of criminal responsibility were given at length in the Royal Commission’s report. They include the findings of recent neuroscience, findings about neurodevelopmental disability, concern about the harm caused by early contact with the criminal justice system, the need to combat Indigenous over-representation, and Australia’s international obligations.
Furthermore, as the ABC points out, the report fails to recommend the instances of torture of children in centres such as Don Dale be investigated and charged. The report explores breaches of the NT legislation by all levels of staff, yet no subsequent charges have been laid for such breaches in order to provide justice to victims of this abuse.
The Commonwealth’s response to the Commission expressed their commitment to the protection of children, and pledged to implement 28 of the recommendations from the report, whilst the remainder of recommendation fall under the legislative power of the Northern Territory Government. Nonetheless, there have been further reports of violence within the Don Dale Detention Centre, indicating that much remains to be done. The Northern Territory Government asserts that there has been extensive reform so far, including enhanced and specialised training of staff, hiring of 23 new recruits, and the introduction of a Trauma Informed and Strength based approach, and Restorative Practice training.
Children’s report - UNICEF
In November 2018, The Children’s Report was released by UNICEF, and shows that more than 30 years after signing the UN Children’s Convention, Australia is still failing to protect vulnerable groups of children. The report criticised Australia that improvements in children’s rights have only been ‘incremental and isolated’. The report outlined that Aboriginal and Torres Strait Islander children suffer more chronic disadvantage and poorer outcomes across every area of the Children’s convention compared to non-Indigenous children. UNICEF criticised the ‘Closing the Gap’ strategy in its failure to protect children and achieve ‘necessary outcomes’. In 2017, one in five Aboriginal and Torres Strait Islanders consulted for the report, (who were between the ages of 15-19 years of age) considered discrimination a concern.
The principle to act in the best interests of the child as outlined in Article 3 of the Convention on the Rights of the Child is an example of a right being breached within Australia. By increasing out-of-home care for Indigenous children and removing them from their families, a child’s right to life, survival and development (Article 6), is also disproportionately affecting Aboriginal children, as they are subject to higher infant mortality rates, higher prevalence of fetal alcohol disorders, and limited access to healthcare.
The report recommended the establishment of a Children’s Commissioner and independent inspectorates and complaint mechanisms with a specific focus on addressing the disadvantage of Aboriginal children and specific measures to address intergenerational disadvantage. Recommendations also include a review of youth justice legislation to ensure consistency with the UNCRC, and that solitary confinement, restraints, and routine strip searches of children be prohibited unless absolutely necessary and all other measures have been exhausted.