Report Cards

• Article 12: Children have the right to express their views freely in all matters which affect them

Positive developments

NATIONAL: National Children’s Commissioner ‘Big Banter’ tour

In September 2013 the National Children’s Commissioner, Megan Mitchell, concluded her ‘Big Banter’ listening tour of Australia, conducted with children and child advocates across Australia in city, rural and remote areas. The Big Banter was undertaken in order to engage with young people and understand the issues which are most important to them, as well as promote child rights education and participation. [1] It involved both face-to-face meetings as well as internet and postcard communications.

As a result of the Big Banter listening tour, the National Children’s Commissioner released her findings in the inaugural report, Child Rights Report 2013 (the Report). In the Report, the Commissioner details that in her consultations, “many children raised the importance of having a say in decisions which affect them, and for their views to be taken seriously. They wanted to have their views respected, and for people to be treated fairly…” The concept of feeling and being safe and being with family and friends were also listed highly on children’s agendas, as well as freedom to play and live in an environment that is free from drugs, alcohol and smoking. [2]

In consultations with child rights advocates, the Report found that many advocates were concerned at the lack of listening to children in both broad and specific contexts was a major issue. This was of particular concern in the complaints system, which advocates claimed “did not facilitate the participation of children”. Furthermore, the Report noted that “the Family Court and child protection systems were seen as needing to be more child friendly, with many pointing to the lack of child voice in the courts.” [3]

In the Report the National Children’s Commissioner, Megan Mitchell, pledges to “take action to inject the views of children directly into policy development and law reform” and “encourage others to engage children in decision-making.” [4]

It is a clearly positive development in child rights in Australia for a National Children’s Commissioner to have been appointed to the role, and to have already consulted with children on their views and rights with the view to improving respect for the views of the child in government and decision-making in the future.

Child rights groups such as CREATE Foundation have welcomed the appointment of the National Children’s Commissioner and her engagement with listening to young people, stating that, “meaningful consultation with children and young people is not only a responsibility of the National Children’s Commissioner, but it is both timely and of paramount importance that the children and young people who the system is designed to care for have a say in the development of the legislation and policies that underpin the role.” [5]

However, CREATE Foundation remains concerned that the Commissioner does not have the power to initiate inquiries and become involved in resolving complaints relating to the care and treatment of young people, which is necessary to protect children and young people’s rights,” [6] It is important that children’s rights to be heard and have their views respected is fully implemented within the role of the Commissioner and within the Australian legal system.

Areas lacking progress

NATIONAL: Lack of specific provisions for listening to children in government plans and policy

Research by the NSW Commission for Children and Young People into how children and young people understand their wellbeing has found that being able to make choices and having influence in everyday life, as well as being involved in and making decisions are very important for children’s wellbeing. [7] In relation to respect for children’s views in family law matters, the Queensland Commission for Children and Young People and Child Guardian has found that listening to children results in child-focused outcomes, which “deliver benefits not simply for children and young people, but also for court systems.”

Around half of the young people participating in research in Western Australia said that within their families they were listened to and had their ideas taken seriously, and that made them feel respected. However, 62% of the children and young people wanted more say in decisions affecting their lives. [8]

Although there are numerous public plans and policies in place in order to safeguard Australia’s children, many of these plans do not focus on the protection of children’s rights specifically and in particular fail to adequately respect the views of children.

As found by the National Children’s Commissioner, “unfortunately, with respect to children, few national initiatives recognise the [Convention on the Rights of the Child]”. [9] Those which do recognise the Convention either fail to specifically report on its progress, or take into account the respect for the views of the child as a primary right.

In a recent report by CREATE Foundation on children living in out-of-home care, it was revealed that less than one third of respondents knew anything about the future living plan developed for them and only one third of those who did know something of its contents had been involved to a significant extent in its preparation. [10] Furthermore, Indigenous children reported a more negative response in terms of being listened to by caseworkers and adults in relation to their out-of-home care placement. [11]

Indeed, in its Concluding Observations, the CRC expressed its concern at the lack of forums for younger children, and in particular Indigenous children, to express their views. As found in the case of many Indigenous children in out-of-home care in particular, respect for the views of the involved children are often only a secondary considering. As found by child rights advocacy group Mission Australia, we need to “listen to young Aboriginal Australians as they articulate the things they want to improve in their lives and the areas where they’d like support.” [12]

It is recommended that the Australian government promote meaningful and empowered participation of all children at all levels of government and within the family, community and at school. Although the Big Banter tour undertaken by the National Children’s Commissioner allowed many young people in Australia to make their voices heard, more needs to be done on the issue to protect the rights of young people in Australia. Particularly in the community and at school, and for children in out-of-home care, decision-makers must be encouraged by government policy to take the opinions of young people in to account.

Previous initiatives such as Student Representative Councils and Australian Youth Forums have been successful in the past in engaging young people [13] but fail to take into account the needs of younger children. More needs to be done on the issue to fully respect the views of children around Australia. As stated by the National Children’s Commissioner, “we should create an environment whereby children and young people feel they can speak up and have their views taken seriously on issues which affect them. And we need a culture where adults, and the organisations they run, respect those views as relevant.” [14]

NATIONAL: No progress on changes to legislation to ensure children’s views are considered during the migration process

The CRC specifically recommended in its Concluding Observations that Australia take all necessary measures to ensure that the Migration Act 1958 (Cth) respects the views of the child at all stages of the migration process, including in situations of irregular migration.

However, no progress has yet been made, nor any action taken, to ensure compulsory separate interviewing of children by immigration, or any other form of ensuring the voices and opinions of the affected children are taken into account.

The government must seek to act upon the recommendations of the CRC in order to protect the rights of children to have their voices heard and opinions listened to, particularly those involved in migration processes. Emphasis must also be placed on ensuring that immigration personnel are able to conduct these interviews in a child-friendly manner to ensure adequate and meaningful participation by the children involved.

• Ensure the implementation of the right of the child to be heard in accordance with the Convention on the Rights of the Child, promoting meaningful and empowered participation of all children in government, family, community and schools.
• Review or amend the Migration Act 1958 (Cth) to ensure respect for the views of the child throughout the migration process.

1. Australian Human Rights Commission, National Children’s Commissioner, Children’s Rights Report (2013) p.63
2. Ibid,  pp.64-65
3. Ibid, p.72
4. Ibid, p.86
5. CREATE Foundation, ‘CREATE supports new National Children’s Commissioner and looks forward to children and young people being heard’ (Media Release, 1 May 2012) (online) at http://www.create.org.au/news/view/142 (accessed 17 December 2013)
6. Ibid
7. Commissioner for Children and Young People WA, Speaking out about wellbeing: The views of Western Australian Children and Young People (2010)
8. NSW Commission for Children and Young People, Ask the Children: Overview of Children’s Understandings of Well-being  (2007) pp.2-4
9. Above n1, p.50
10. CREATE Foundation, Experiencing Out-of-Home Care in Australia: The views of children and young people (2013) p. xix
11. Ibid p.67
12. Mission Australia, Young Aboriginals feel more unsafe and are more concerned about alcohol, drugs and gambling than non-aboriginal young people’ (Media Release) (online) at https://www.missionaustralia.com.au/newsroom-page/media-releases/item/368-young-aboriginals-feel-more-unsafe-and-are-more-concerned-about-alcohol-drugs-and-gambling-than-non-aboriginal-young-people (accessed 17 December 2013)
13. Above n1, ) p.85
14. Megan Mitchell, National Children’s Commissioner, ‘Listening to children and young people from refugee backgrounds’, paper presented to the Refugee Youth in Focus: National forum on young people from refugee backgrounds, 16 July 2013