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Australian Lawyers for Human Rights PO Box A147 Sydney South NSW 1235 [email protected] www.alhr.org.au 1 June 2018 National Children’s Commissioner Australian Human Rights Commission GPO Box 5218 Sydney NSW 2000 By email: [email protected] Dear Committee Secretary, Submission: Australia’s progress in implementing the Convention on the Rights of the Child (CRC) Please find attached a submission from Australian Lawyers for Human Rights (ALHR) in response to your call for submissions as part of consultations on the progress that Australia has made in terms of implementing the United Nations Convention on the Rights of the Child (CRC). We thank you for the grant of an extension of time in which to lodge our submission. If you would like to discuss any aspect of this submission, please contact Kerry Weste, President Australian Lawyers for Human Rights, by email at [email protected] Yours faithfully, Kerry Weste President Australian Lawyers for Human Rights Australia’s progress in implementing the Convention on the Rights of the Child (CRC) Contents 1. About Australian Lawyers for Human Rights (ALHR) ..................................................... 1 2. Executive Summary ........................................................................................................ 1 3. General Measures of Implementation ............................................................................ 2 3.1 Reservations and Declarations .......................................................................... 2 3.2 Legislation, Coordination and Independent Monitoring ...................................... 3 4. Definition of the Child (Art. 1 and 40) ............................................................................. 5 4.1 Age of Majority – Criminal Responsibility ........................................................... 5 5. Australia’s Treatment of Children who are Refugees or Seeking Asylum ...................... 6 5.1 Policies affecting children seeking asylum ......................................................... 6 5.2 Non-discrimination (art 2) ................................................................................... 7 5.3 Best interests of the child (art 3) ......................................................................... 7 5.4 Right not to be subjected to torture or other cruel, inhuman or degrading treatment or punishment (Art 37) ....................................................................... 9 5.5 Health of children subject to offshore processing policy (Art 6, art 24, Art 27, Art 23) .................................................................................................................... 12 6. Article 23: Disability .................................................................................................... 13 6.1 General ............................................................................................................. 13 6.2 Non-citizen children with a disability (Arts 23-24 and Art 2 non-discrimination) 13 7. Child Rights and the Business Sector .......................................................................... 14 7.1 Commentary on Article 32 and the Australian Business Sector ....................... 14 7.2 Sale, Trafficking and Abduction: Commentary on Article 32 and the Australian Business Sector ............................................................................................... 16 7.3 The intersection with OPSC and Article 35 of the CRC ................................... 18 8. Children’s Rights and Gender ...................................................................................... 18 8.1 Female Genital Mutilation (FGM) ..................................................................... 19 8.2 Involuntary or Forced Sterilisations .................................................................. 19 8.3 Forced Marriage ............................................................................................... 20 9. LGBTI Children in Australia ........................................................................................ 21 9.1 Non-discrimination (art. 2) ................................................................................ 21 9.2 Best interests of the child (art. 3) ...................................................................... 22 9.3 Respect for the views of the child (art. 12) ....................................................... 22 9.4 Privacy and protection of image (art. 16) ......................................................... 23 9.5 Access to information from a diversity of sources and protection from material harmful to his or her well-being (art. 17) ........................................................... 23 10. Democratic Freedoms and Children .......................................................................... 24 10.1 The right to seek, receive and impart information (art. 13) and the protection of privacy and protection of the image (art. 16) .................................................... 24 10.2 Freedom of thought, conscience and religion (art. 14) ..................................... 24 10.3 Freedom of association and peaceful assembly – public order offences ......... 24 10.4 Right to education, including vocational training and guidance (art. 28) .......... 25 10.5 Potential impact on civil society organisations advocating for children’s rights 25 11. Aboriginal and Torres Strait Islander Children in Australia ........................................ 27 11.1 Non-Discrimination (Art. 2) ............................................................................... 27 ii 11.2 Best interests of the child (Art 3) ...................................................................... 28 11.3 Removal of Children ......................................................................................... 28 11.4 Adoption ........................................................................................................... 29 11.5 Right to education (art. 28) and aims/quality of education (art. 29) .................. 31 11.6 Cultural rights of children belonging to Indigenous groups (art. 30) ................. 31 11.7 Sentencing ...................................................................................................... 32 11.8 Administration of juvenile justice (art. 40), the existence of specialised and separate courts and the applicable minimum age of criminal responsibility ..... 32 12. Birth Registration, name and nationality .................................................................... 32 13. Children deprived of citizenship ................................................................................. 33 14. Further comments on cruel, inhuman or degrading treatment & corporal punishment ......................................................................................................................... 34 14.1 Treatment of student with disabilities ............................................................... 34 14.2 Violence against girls and girls with disabilities ................................................ 35 14.3 Administration of Juvenile Justice .................................................................... 36 Conclusion ........................................................................................................................... 38 1. About Australian Lawyers for Human Rights (ALHR) Australian Lawyers for Human Rights (ALHR) was established in 1993 and is a national network of over 1,000 Australian solicitors, barristers, academics, judicial officers and law students who practise and promote international human rights law in Australia. ALHR has active and engaged National, State and Territory committees as well as specialist national thematic committees. ALHR utilises its extensive experience and expertise in the principles and practice of international human rights law in Australia in order to advocate for greater Australian compliance with international human rights standards at a domestic and international level and promote and support lawyers’ practice of human rights law in Australia. 2. Executive Summary ALHR thanks the National Children’s Commissioner for the opportunity to make this submission in the lead up to Australia’s appearance before the United Nations Committee on the Rights of the Child (the Committee). ALHR notes the Commission’s vital role as a national human rights institution which independently reports to the UNCRC about Australia’s implementation of: • The Convention of the Rights of the Child (CRC); • The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (OPSC); and • The Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (OPAC). We commend the Commissioner for seeking the views of stakeholders and civil society in preparing its report. In preparing this submission ALHR has utilised the expertise within our specialist thematic subcommittees. As such our submission is broken down into thematic human rights areas of concern. Under each of these thematic headings ALHR then makes reference to the clusters of articles identified by the Committee to comment on Australia’s progress in implementing or not implementing the CRC. ALHR notes that due to the immense breadth of the subject matter of children’s rights in Australia, we have not been able to cover all areas of concern in relation to Australia’s compliance with the CRC. As such the feedback that ALHR
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