Book Review: The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials

Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials, Oxford Uni Press, 2014.

In Indigenous Peoples and Human Rights: International and Regional Jurisprudence, Ben Saul examines how Indigenous peoples have interpreted and adapted human rights standards to their unique experiences. The book begins by analysing the different approaches at international law for identifying who is ‘Indigenous’ before delving into the jurisprudence of UN human rights treaty bodies and regional human rights bodies. It concludes with a brief overview of future implementation challenges for Indigenous peoples and human rights.

Saul starts with an analysis of how Indigenous peoples are identified at international and regional law. A difficult question with no definitive answer, it occurs at many different levels and contexts, and involves a wide range of communities and groups. Nevertheless, in most cases who is Indigenous is not a controversial question, though Saul is careful not to dismiss the difficult struggles for recognition still occurring in many countries. The main focus of the book, however, is the struggle over the rights Indigenous people are entitled to under international and regional law.

At the international level Saul examines the jurisprudence of UN human rights treaty bodies and their use for Indigenous rights. The International Covenant on Civil and Political Rights (ICCPR) receives the most treatment with the right to self-determination found in Article 1 being adapted by the ICCPR Human Rights Committee for the specific circumstances of Indigenous issues. However Article 27 of the ICCPR, the right of minorities to enjoy their own culture, has been the right most often raised with respect to Indigenous issues. Due to the lack of Indigenous-specific rights, Indigenous peoples have used minority rights to make human rights claims. These cases have usually focused on traditional Indigenous economic and cultural attachments to land. Saul argues, however, that adapting the framework of minority rights for Indigenous issues is ultimately an imperfect solution and in practice the implementation has been cautious.

Though used less, other UN human rights treaty bodies, such as the UN Committee on Economic, Social and Cultural Rights and the UN Committee on the Elimination of Racial Discrimination have nevertheless dealt with Indigenous issues. Rights to culture and self-determination have been dealt with by the former whereas the latter has dealt with issues of discrimination, the lack of recognition of Indigenous groups and access to justice issues. The Committee on the Elimination of Discrimination Against Women, the Committee on the Rights of the Child and the Committee Against Torture have also dealt with Indigenous issues within their specialty areas.

Following the above analysis of Indigenous rights at the international level, Saul moves to the regional plane, focusing on how the Inter-American and African human rights systems protect Indigenous rights. The protection of property and resource rights, along with cultural, socio-economic and civil rights are all examined in turn. Throughout these sections Saul suggests that the American and African regional systems have gone further than the UN treaty bodies in protecting Indigenous interests. Whereas the international system is abstract and ambiguous Saul argues that the regional systems offer a certain detail and clarity to Indigenous rights.

Indigenous Peoples and Human Rights: International and Regional Jurisprudence is a thorough and well researched analysis of the use of human rights by Indigenous peoples. Though perhaps overly academic for the casual reader, its subject matter makes it useful to anyone interested or involved in Indigenous rights. More broadly, the book can be viewed as an example of how human rights jurisprudence has been influenced, affected and used by a specific group. This makes it useful for those interested in adding a human rights based approach to their argument as well as those practicing generally in human rights.

Kevin Jackman completed his Practical Legal Training at the HRLC.

Book Review: The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials

Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials, Oxford Uni Press, 2014.

The International Covenant on Economic, Social and Cultural Rights is often described as the ‘poor cousin’ of its better understood counterpart, the International Covenant on Civil and Political Rights. The publication of this comprehensive and ambitious work professes to mark something of ‘a coming of age’ in our understanding of economic, social and cultural right. The detailed assembly of primary materials, together with commentary, case extracts and contextual discussion no doubt meets this ambitious objective.

Structured in a way that makes it a good counterpoint to Sarah Joseph and Melissa Castan’s comprehensive publication on civil and political rights, the book provides an article-by-article analysis of the Covenant after only the briefest of introductions. As such it is an ideal reference for practitioners and scholars who are well-versed in the history and practice of human rights law generally, but who require access to detailed commentary in relation to individual rights enshrined in the Covenant.

Having cause to delve into the chapter on the ‘Right to Health’, I discovered a very readable narrative in relation to the drafting history of Article 12, the conceptual debates that have arisen in that context and the tensions inherent in applying the right to health in the context of the broader field of human rights (for example, the tensions between reconciling public health initiatives with the rights of individuals in relation to health and autonomy). The chapter explores the socio-economic contexts which impact on the realisation of the right to health as well as the general nature of the obligation imposed upon states, including in relation to the international obligations of states. The chapter also contains useful commentary in relation to the extra-territorial obligations of states to persons within their jurisdiction but outside of their territory as well as persons affected by the acts of corporations regulated by the state in question. In exploring these legal technicalities, the authors are clearly mindful of the contemporary context of extreme and growing global inequality as well as questionable state practices in this area. Clearly the current era of economic globalisation demands and enables international cooperation to ensure the universal enjoyment of these important rights. At the same time, the foreign aid budgets of wealthy states are not keeping up and many states attempt to avoid their human rights obligations through artificial constructs and by reference to narrow ideas of territory and jurisdiction. 

The publication of the book is also particularly timely considering that the Optional Protocol to the Covenant entered into effect only three years ago and is still in its infancy as a potential avenue for those suffering serious violations of economic, social and cultural rights. The Optional Protocol establishes three new procedures for the protection and enforcement of rights under the Covenant, namely an individual complaints procedure, an inter-state complaints procedure and an inquiry procedure that may be engaged when ‘reliable information indicating grave or systematic violations’ is received by the United Nations Committee on Economic, Social and Cultural Rights. As practitioners prepare and respond to complaints and inquiries under these new procedures, they will have access to a detailed commentary which provides historical context, interpretative guidance, jurisprudence and scholarly discussion in relation to all of the substantive rights enshrined in the Covenant.

Saul, Kinley and Mowbray’s book is a welcome addition to the library of any human rights practitioner and will no doubt become a dog-eared favourite in the years ahead.

Lisa Button - former HRLC volunteer lawyer and now asylum seeker and refugee policy and advocacy advisor at Save the Children Australia.

 

Human rights, business and immigration detention - moderated by HRLC's Rachel Ball

Immigration detention centres around the world rely on private companies to operate. Too often these centres are the sites of serious human rights violations, including arbitrary detention, inhumane conditions and the mistreatment of vulnerable people including children, women and victims of torture and trauma. Increasingly, companies are being held to account for their role in the abuse.

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Stifling democracy: global and local attacks on press freedom and protest rights | Peter Greste in conversation with Emily Howie

The Human Rights Law Centre and Community Legal Centres Queensland are excited to announce that tickets are now on sale for a fantastic human rights event to be held in Brisbane - Maina Kiai in conversation with Peter Greste moderated by HRLC’s Director of Advocacy and Research Emily Howie.

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Out of home care and child abuse

The article below was written for the special 2016 Children Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons and the Human Rights Law Centre.

DISCLAIMER: Please note that material in this Bulletin (Material) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons, NCYLC or the HLRC or the views of King & Wood Mallesons’ clients.


The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) has uncovered a host of deficiencies in the way that public and private Australian institutions have responded to child sexual abuse. Victims of child abuse face an increased risk of drug addiction, homelessness, mental and physical health issues, educational disadvantage and unemployment. These often lifelong implications make it an issue requiring constant reconsideration to ensure the chance of its occurrence is minimised. One area where child abuse can occur is out of home care (OOHC), such as when a child is placed with a foster family. Child abuse in OOHC can be perpetrated by adult carers, other adults in or outside the household, or other children in or outside the household.  This article will consider the specific phenomenon of child-to-child sexual abuse (that is, sexual abuse of children perpetrated by other children) in OOHC and will examine its incidence, prevention and institutional responses to it.

OOHC covers a significant range of services, including residential care, family group homes, home-based care (relative/kinship care, foster care and other home-based OOHC) and independent living arrangements. OOHC is provided both by State Governments and by non-government organisations (NGOs). Children may enter OOHC when the children’s parents are unable to care for them, which may be for any number of reasons: mental or physical health problems, drug addiction, or a history of abuse in the home. Child-to-child abuse represents a growing problem in OOHC and was in urgent need of attention when the Commission commenced its investigation in 2013. One of the first obstacles faced by the Commission was the absence of consistent and reliable data collection and record-keeping, as they criticised the inability of some states to produce records for requested periods and the differing methods used by states when “counting” incidents. The UN Committee on the Rights of the Child reached the same conclusion earlier in their 2012 report on Australia after noticing that despite the growing number of children placed in OOHC, data on placements, abuse in care, and complaints was sparse. State governments are ultimately responsible for children in OOHC, though they may outsource the provision of OOHC to NGOs, and State governments do not publish data on the number of children who are sexually abused while in OOHC.  It was the Committee’s recommendation that data collection mechanisms be improved – yet it appears that systemic deficiencies remain.

The Commission acknowledged the extreme difficulty they consequently faced in accurately assessing the prevalence of child-to-child abuse and holding governments and service providers accountable for abuse suffered by children in OOHC. Counsel assisting the Commission, Gail Furness SC, initially asserted that that child-to-child abuse represented the “vast majority of observed sexual abuse cases in out-of-home care” according to US research. However this was strongly refuted by victim advocacy group CLAN, with Vice-President Frank Golding arguing that “care leavers…know that’s not true”. The scoping review commissioned by the Royal Commission has since been amended, acknowledging that the use of the word ‘majority’ was an error and that “its prevalence has not yet been established”. The review now reflects that child-to-child abuse occurs at “substantial levels”. Studies in 1995 and 2000 indicate that around 1 in 3 sexual offenders in Australian society broadly are juveniles (mostly adolescents, although 7% of sexual abuse is perpetrated by youth under the age of 12).Statistics from state police in 2003-2005 suggest that youth perpetrate 9-16% of all sexual abuse. According to Bernie Geary, former Victorian Principal Commissioner for Children and Young People, 31% of sexual abuse in residential care in Victoria can be characterised as child-to-child abuse.

In Australia, the number of children placed in OOHC arrangements has risen threefold between 1990 and 2010, to 36,000. Those numbers have tended to increase each year since. Almost half of all foster-carers have multiple children placed in their care. It was hoped the investigation conducted by the Commission would uncover the factors contributing to the incidence of child-to-child abuse and elicit possible solutions to these problematic statistics. Several factors contributing to rates of child-to-child abuse in OOHC were identified during the Commission’s public hearing, although not all of these will be discussed in this article.

The Commission heard that foster-care providers are making poor decisions in the placement of children, resulting in risky combinations of children with varying needs placed under one roof.The placement process has been characterised by a chronic shortage of carers, coupled with a focus by the providers on the availability of beds, to the detriment of young people requiring safe OOHC. In particular, submissions highlighted that emergency or last-minute placements often result in the absence of proper and detailed assessment of the needs of children being introduced into the home and those already residing there.Emergency placements also often occur before the completion of background checks, with children usually placed in informal kinship care arrangements often without the same level of scrutiny as other forms of placements.

This approach to emergency care disregards the commitment made by the Australian government in ratifying the UN Convention on the Rights of the Child including the right to protection from sexual abuse and the right of children to be looked after properly by people who respect them. Article 19 further mandates that governments institute effective “social programmes to provide necessary support for the child and for [carers]” and the incidence of child sexual abuse in Australia reflects significant deficiencies in the national child protection system.

The Commission also heard that state government departments and other agencies are providing insufficient background information to foster care providers to enable them to properly assess risks. These omissions occur when state governments outsource the provision of OOHC, and children and carers are transferred from one provider to another, where the new providers are not given important case histories. Submissions highlighted the failure to provide information on a young person’s history of sexual behaviours was a recurring feature of child-to-child abuse incidents and one that could be easily avoided. This was confirmed by research conducted by the Commission.Beverley Orr, President of the Australian Foster Carers Association criticised these inadequacies, noting that withholding information about previous sexual abuse is unfair to both the carer and child and prevents the carer discharging their duty of care to keep all children in their home safe.

Not only are carers often seemingly ill-informed about the history of trauma and possible problem sexual behaviour of children in their care, but the Commission heard most caseworkers receive only limited training on how to identify signs of child-to-child sexual abuse. Training usually comprises of a three-day program called ‘Shared Stories, Shared Lives’ and includes a component on sexual abuse. Furthermore, no states or territories require that their carers possess a minimum level of qualification. The training of staff and carers is a critical step in the prevention of child-to-child sexual abuse. This training and support should arguably include equipping caregivers with skills required to identify and respond to “problem” sexual behaviours. Despite this, many governments and service providers acknowledged it as an area requiring significant improvement and training of this nature is not mandatory for carers in several states.  An understanding of age-appropriate or “developmentally-expected” behaviour may enable caregivers to recognise inappropriate behaviours before they culminate in child-to-child sexual abuse.  These concerns were echoed in a Consultation Paper into child abuse in out of home care released by the Royal Commission in early March 2016 (OOHC Consultation Paper).

Ideas were canvassed over the course of the public hearing on methods for eliminating the occurrence of child-to-child sexual abuse in OOHC. As well as improvements in information-exchange and carer training, carer advocates called for further funding to enable better services to be provided to those children who exhibit problem sexual behaviours. The OOHC Consultation Paper also drew attention to the inability of current treatment programs for children exhibiting sexually-problematic behaviours to meet demand within the community. Further to this, the Paper noted that not all programs currently operating are adequately prepared to deal with the particular perspectives of children from an ATSI background, a migrant background, or children who have a disability. Regional areas in particular require further funding and attention to ensure that child victims who go on to display problematic behaviours receive support in a timely manner. Dr Joe Tucci, CEO of the Australian Childhood Foundation highlighted the injustice in the “geographical bingo” which currently determines whether a child will receive a therapeutic response that meets their needs.

In line with this was the suggestion that all children in OOHC should have access to an independent body to whom they can discuss trauma and disclose abuse. This establishment of this external agency would likely require further government funding to ensure children in OOHC in all metropolitan and regional areas receive access to a third party who provides support to them throughout their placements and movements over time. Such a body would, of course, have limitations. Child abuse victims, especially the younger children, would likely have difficulty reporting abuse to this independent body, who would generally be unknown to them. It is therefore crucial for children in OOHC to develop more secure, long-term relationships with their caseworkers as well, to build trust and provide a reliable channel to engage with any independent body.

The importance of surrounding the child with dependable relationships in which they feel comfortable to disclose abuse is crucial to addressing the needs of a child victim, and may ultimately prevent them going on to abuse another child in care. In order to strengthen the relationships which surround the child in OOHC, Dr Tucci further suggested that OOHC providers be funded on longer-term contracts to eliminate the need for casual staff and ensure children have continuity of support and can build trust. He went on to highlight the need for children to have “consistent, high-quality pool of carers around them who have been caring for a period of time” – an outcome that becomes less achievable with a casual workforce trained to care for only a short period.

Further improvements also needed to be made in terms of providing follow-up support to child victims. Governments and service providers were unable to satisfactorily describe the support offered to child victims following sexual abuse in OOHC, once again due to poor data recording. Tasmania (one of the few states with available records) acknowledged that roughly 20% of children were offered counselling after experiencing sexual abuse, which represents a contravention of Article 39 of the UN Convention on the Rights of the Child. In its report on residential care services provided in Victoria, the Commission for Children and Young People noted that many children received inadequate care following abuse. A lack of recognition of the event, failure to report incidents to the police, poor counselling support and an absence of compensation for the child victim were all identified as issues in the Victorian context, and most likely reflect concerns in all States and Territories.

Currently three Australian jurisdictions have specialist therapeutic treatment services for children who exhibit sexually harmful behaviours, designed to prevent recidivism:

New South Wales: New Street Adolescent Services
Provides a coordinated response to children aged 10-17 who have sexually harmed others. The program involves the family members of the children. It is located in a select number of metro Sydney areas and some rural areas in NSW. It has a more limited capacity and geographical reach than the Victorian programs.

Victoria: Sexually Abusive Behaviour Treatment Services
Incorporates 12 funded services in every region of Victoria, ensuring that the program has a broad and consistent capability across the state. In Victoria, Therapeutic Treatment Orders (TTOs) are engaged for children aged 10 – 14 years who have exhibited sexually abusive behaviour. The Services treat children who have received TTOs as well as children who voluntarily engage with the Services (including children under 10, and up to 18).

Queensland: Griffith Youth Forensic Service
Has limited capacity and geographical reach compared to Victoria.

Other jurisdictions treat child-to-child sexual abuse through generalist counselling services. While some programs are rolled out in the context of a criminal punishment, others are voluntary in nature, whereby a child (and/or their family/carer) will opt for treatment if their behaviour has been flagged. This encompasses children under 10 who are too young to be considered criminally responsible.

Generalist programs in states without specialist services may not have sufficient skill to respond adequately to such children and their families. The expertise required to effectively reduce recidivism is a fairly unique skill set, and without appropriate support, carers are forced to shoulder the majority of the burden of caring for children in this situation. According to the OOHC Consultation Paper “this can contribute to the breakdown of the placement”. Furthermore, not all programs are adequately prepared to deal with the particular perspectives of children from an ATSI background, a migrant background, or children who have a disability.

The consistent failure of Australian governments and service providers to record and respond to the incidence of child-to-child sexual abuse has resulted in significant levels of child-to-child sexual abuse in OOHC. This also represents a failure to abide by our central obligation under the UN Convention on the Rights of the Child, encapsulated in Article 3, which implores organisations concerned with children to work towards their best interests.  It is hoped that the implementation of some of the measures discussed throughout the public hearing will ultimately see improvements in the rate of child-to-child abuse in OOHC and produce more positive outcomes for the thousands of children placed in child protection arrangements every year. The Royal Commission is expected to release a report into child sexual abuse in OOHC in early 2016 based on the evidence tendered at their public hearing into OOHC. It is hoped that this report will continue to fuel improvements in the improvement of training and services for both children and carers and the placement of children in the nurturing environment they are entitled to as a child. 

As a first step to rectifying some of the problems in this area, State governments should commit to publishing annual data on the reports of sexual abuse in OOHC, and how those reports have been responded to.  OOHC providers should also ensure they are provided with full background information on all their contracted carers and children before implementing any care arrangements to ensure that they are able to make informed decisions about where vulnerable children should be placed.

Meena Mariadassou and Georgia Feltis, Summer Clerks, King & Wood Mallesons.

Doing Time – Time for Doing, five years on

The article below was written for the special 2016 Children Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons and the Human Rights Law Centre.

DISCLAIMER: Please note that material in this Bulletin (Material) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons, NCYLC or the HLRC or the views of King & Wood Mallesons’ clients.


The Doing Time - Time for Doing Report (‘the Report’), released by the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in 2011, provided 40 recommendations aimed at reducing the prison rates of young Indigenous people. Since the release of the report, the ratio of Indigenous to non-Indigenous youth imprisonment has continued to improve at an extremely slow rate, with little change from the previous decade. While Indigenous youth were 28 times more likely to be in detention in 2011, in 2013-14 they were still 26 times more likely to be in detention than their non-Indigenous counterparts. This slow rate of improvement is due to a lack of implementation of the 40 recommendations in the Report.

Under the broad themes of justice reinvestment and Indigenous-led solutions, the Report called for a range of reforms, coordinated at a national level. The recommendations were targeted at addressing the inequalities leading to the commission of crimes, sentencing, and outcomes to reduce recidivism. It was recommended that the Federal Government increase funding to support community programs, Indigenous health initiatives, education, workplace participation, and access to justice. The Report also recommended that the Federal Attorney General work with state and territory counterparts to develop state-based solutions for imprisonment rates of young Indigenous people.

Australia faces ongoing criticism from bodies such as the UN Committee on the Rights of the Child and the UN Committee Against Torture for the severe over-representation of Indigenous people, particularly young people, in prisons. With 2016 being the fifth anniversary of the release of the Report, this article discusses the progress that has been made in reducing imprisonment of young Indigenous people, and the continuing major gaps in implementation.

Areas of positive development

There have been some key areas of positive implementation by the Federal Government, mostly involving funding for general Indigenous health and education programs. The most successful programs are those that specifically target children. This article will focus on two examples of successful implementation.

Alice Springs Youth Drug Rehabilitation Services

Recommendation 8 of Doing Time - Time for Doing recommended that the Commonwealth Government, in collaboration with state and territory governments, increase funding for locally based alcohol, anti-smoking and substance abuse programs. This recommendation is based on early intervention on Indigenous health as a key strategy in closing the gap on outcomes in health and reducing the rate of Indigenous youth imprisonment. This recommendation reflects the obligations and standards contained in the UN Convention on the Rights of the Child (‘Convention’), specifically Article 24(1):

States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

On 16 September 2015, the Minister for Indigenous Affairs, Nigel Scullion, announced funding for Alice Springs youth drug rehabilitation services. This funds Bushmob Incorporated, an organisation based in Alice Springs to provide enhanced access to clinical services for young people aged 12-25 years suffering substance abuse. $1.5 million over three years funds the continuing operation of 20 beds at the Bushmob Youth rehabilitation centre. The centre also has a full time doctor and psychiatrist, and runs outdoor activities such as a bush camp, horse program and sport. In addition to the $1.5 million, over $300,000 supports the media room, which promotes literacy and education with clients, by providing access to computers, graphics and music for the youth as they undergo treatment.

This funding is welcomed, particularly as the centre incorporates a multi-disciplinary approach in addressing holistic health, education and sporting arrangements for youth. While this funding does help improve Indigenous youth health and rates of imprisonment, a longer-term investment and a program specifically for Indigenous young people is required in conjunction with a health program for Indigenous youth who enter the criminal justice system (recommendation 15 of the Report). While it is unclear whether this scheme was implemented as a direct result of the Report, it is welcomed. More initiatives such as this need to be supported by federal, state and territory governments to ensure implementation of the Report’s key recommendations.

Remote School Attendance Strategy (RSAS)

As Robert Somerville of the WA Department of Education told the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs in January 2011, “With regard to education, there is no doubt that there is an absolute correlation between a child failing at school and a child entering the justice system” (see Committee Hansard, Sydney, 28 January 2011, p. 77). The Report recommends that the Commonwealth Government provide funds and administrative assistance to establish and expand school attendance incentive programs across Indigenous communities. This is consistent with Article 28(1)(e) of the Convention on the Rights of the Child:

States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: …take measures to encourage regular attendance at schools and the reduction of drop-out rates.

In 2014, the RSAS was established by the Federal Government, appointing school attendance officers to ensure all children, particularly in remote communities, attend school every day. RSAS has been implemented in Queensland, Western Australia, South Australia, New South Wales, and the Northern Territory. The strategies in each state and territory are driven by the community to suit local needs. Local teams consist of appointed officers and members of the community who work together to provide practical assistance, such as:

  • educating children and families about the importance of regular school attendance;
  • providing practical support, such as driving children to school or helping to organise school lunches, uniforms, homework and after-school care; and
  • working with the school to monitor attendance and follow up on student absences.

On 25 September 2015, the Minister for Indigenous Affairs, Nigel Scullion, announced that the RSAS will be extended for another three years. The Federal Government has invested $80 million to support the program, which is currently operating in 73 schools across 69 remote Indigenous communities. This program is praised by some, but has also been criticised for its ‘top down’ and punitive approach that does not engage with and support local communities and the underlying reasons why students do not attend school.

Key gaps in implementation

Despite the UN Committee on the Rights of the Child stating in 2012 that Australia’s youth justice system ‘requires substantial reforms for it to conform to international standards’, implementation of the Report continues to progress slowly. The focus of lawmaking continues to be on top-down funding efforts, rather than the community-led initiatives which were at the heart of the Report. Particularly at a state level, legislation continues to be introduced which is specifically contrary to the Report’s recommendations.

Youth Sentencing Framework (Recommendations 27-32)

The Report canvassed a range of problems with Australia’s youth sentencing culture, stemming from the failure of the ‘tough on crime’ approach to reduce recidivism. While it was recommended that the Australian Institute of Criminology study sentencing options for Indigenous youth, and the Attorney-General explore alternative sentencing options, these recommendations have not yet resulted in concrete change.

Across Australia, states and territories continue to impose criminal responsibility on children from 10 years of age, despite consensus from the Committee on the Rights of the Child that 12 is the acceptable minimum age of criminal responsibility.

Specifically in WA, contrary to recommendations from the Committee on the Rights of the Child and the Committee Against Torture, the Western Australian Criminal Code Act 1913 (WA) continues to impose mandatory minimum sentences on some young offenders. Rather than scaling back mandatory sentencing, the range of offences for which a mandatory sentence will be imposed was increased in late 2015, with the passage of the Criminal Law Amendment (Home Burglary and Other Offences) Act 2015 (WA).

In order to properly implement the Report, states and territories need to abolish sentencing laws, such as mandatory sentencing, which remove the ability of judges to take into account the particular circumstances of each case.

Funding a national approach to reducing imprisonment (Recommendations 2, 24-6, 39-40)

Longstanding calls for further funding toward Indigenous initiatives have been met with only intermittent support, and where funding has manifested, it has often taken the form of a top-down approach, imposed on local communities, rather than led by them. From 2000-1 to 2010-11, combined real funding per person for the Aboriginal and Torres Strait Islander Legal Services (ATSILS) and Family Violence Prevention Legal Centres (FVPLS) had declined by 20 percent. Following the publication of the Report, and a recommendation of an immediate $200 million annual injection from the Productivity Commission in 2014, these bodies are yet to receive guaranteed long term funding approaching this recommendation.

While funding is crucial for increasing Indigenous access to justice, the real thrust of the Report was to support community-led early intervention to reduce initial contact with the legal system. These initiatives require local expertise, national cooperation, and sustained commitment to real change, rather than just funds. The thrust of these recommendations have been reiterated in recent reports and campaigns, including the Change the Record campaign and Amnesty International’s ‘Community is Everything’ campaign.

Conclusion

Regrettably, the Federal Government has taken limited steps to support local solutions to youth incarceration. Programs which are community-led and created in close collaboration with local members of Indigenous communities appear to be particularly effective. However, despite some instances of success, the majority of recommendations in the Report have not been fully implemented, raising concerns with many of Australia’s obligations under the Conventions on the Rights of the Child.

Amelia Achterstraat and Jordan Gifford-Moore, Summer Clerks, King & Wood Mallesons.

Children and consumer product safety: Current regime and scope for reform

The article below was written for the special 2016 Children Rights Edition of the HRLC Monthly Bulletin, Rights Agenda, developed in collaboration with the National Children’s and Youth Law Centre, King & Wood Mallesons and the Human Rights Law Centre.

DISCLAIMER: Please note that material in this Bulletin (Material) is intended to contain matters which may be of interest. The Material is not, and is not intended to be, legal advice. The Material may be updated and amended from time to time. We endeavour to take care in compiling the Material; however the Material may not reflect the most recent developments. The Material represents the views and opinions of the individual authors and the Material does not represent the views of King & Wood Mallesons, NCYLC or the HLRC or the views of King & Wood Mallesons’ clients.

 

In 2014, the Australian Institute for Health and Welfare reported that from 2011 to 2012 over 130,000 children were hospitalised for injuries. Common causes of injury included falls, burns or the ingestion of foreign objects. Such injuries are frequently associated with consumer products, such as trampolines, cots and polystyrene beads. The high incidence of child injuries, and the link with consumer product safety, calls for a consideration of product safety regulation and how it promotes and upholds child rights.  In particular, it raises a question about the extent to which Australia is upholding the fundamental right of children to life, survival and development as provided for under Article 6 of the Convention on the Rights of the Child (Convention).

This article considers these issues from the perspective of children as consumers and the product-related injuries affecting them. It analyses the consumer product safety regime in place under Australian domestic law, as set out in Part 3-3 of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL), to assess whether it goes far enough in relation to children and to identify possible areas for reform.

The ACL is set to be reviewed this year and product safety has been flagged by Rod Sims, Chairman of the Australian Competition and Consumer Commission (ACCC), as a key area for review. We hope that in addition to addressing the product safety protections afforded to consumers generally, this review will specifically consider and strengthen the protections afforded to children who represent one of the most vulnerable consumer groups.

The current consumer product safety regime and areas for reform

There are three key tenets of the consumer product safety regime under the ACL – safety standards, bans and recalls. The operation of each of these and their applicability to children is considered below, along with suggestions of possible areas for reform.

Safety standards

Under the ACL, the Commonwealth Minister who administers Part XI of the Competition and Consumer Act 2010 (Cth) (Commonwealth Minister) has power to impose mandatory safety standards (mandatory standards). These standards may be made for consumer goods of a particular kind and can regulate aspects such as the design, method of manufacture, or packaging of goods. Mandatory standards specify the minimum requirements of particular goods in order for them to be safe. If a supplier supplies, manufactures, possesses or has control of consumer goods that do not comply with mandatory safety standards, they may face penalties.At the time of writing, mandatory standards exist for 41 types of consumer goods. Nineteen of these goods relate to children’s items, which include prams and strollers, children’s nightwear and baby dummies.

In addition to mandatory standards, the ACL provides a consumer guarantee that goods will be safe, and independent bodies such as Standards Australia (the national peak non-government standards organisation) formulate voluntary standards for particular categories of goods.

The current safety standards are somewhat limited in their operation. Consumer goods that do not fall under the purview of the mandatory standards may pose a risk to children, as suppliers have little legal incentive to incorporate safety standards into the design, manufacture process or labelling of the goods. Voluntary standards may go some way to address this, but they are not a legal requirement and are complied with at the discretion of the supplier. In the absence of clear, approved standards, a considerable burden is placed upon parents and child consumers themselves to ‘buy safe’.

The safety standards provisions in the ACL could be improved by implementing a general safety requirement mirroring the European Union General Product Safety Directive (GPSD) 2001/95/EC (Directive). The Directive provides a generic definition of a ‘safe product’ applicable to all member States and obliges all producers to place safe products on the market. The Directive is complementary to specific safety requirements. It applies in its entirety to products that aren’t covered by specific standards, and applies partially to those that are.

Implementing similar legislation in Australia would fill the gaps between the existing mandatory standards for particular products and all other products by providing a general definition of a ‘safe product’. As in the European Union, suppliers would be legally required to comply with minimum safety requirements for all products, prior to supplying goods for sale.

The Directive also requires producers and distributors to report to national authorities when goods fall short of the general safety definition. This applies to products that pose a serious risk in addition to those that pose a moderate/low risk. Introducing similar provisions into the ACL, requiring suppliers to report safety-related concerns for all injuries (not just serious injuries), could address concerns about the limited scope of current reporting requirements which only obliges suppliers of consumer goods to report deaths or serious injury/illness related to those goods. As Associate Professor Kirsten Vallmuur identified in a presentation given at the Rights of the Child Consumer conference in Sydney on 20 November 2015, the resulting lack of data on primary care representations, injuries not requiring treatment at a health facility and near miss injuries is one of the key problems in the Australian product safety regime. The imposition of broader reporting requirements and more proactive investigation by authorities through information-sharing with other jurisdictions could ensure that Australia develops a comprehensive database of injuries, thereby enabling quick responsive action.

Bans

The ACL provides for two types of product bans. Both the Commonwealth Minister and responsible State and Territory ministers, such as the NSW Fair Trading Minister, are able to impose a 60 day interim ban on products (which may be extended).The Commonwealth Minister may also impose permanent bans on products. Once a ban is made, it is an offence to supply, manufacture, possess or have control over the banned goods. Just over 20 products are currently subject to a permanent ban in Australia, almost half of which are directed at children. The review of the ACL should consider whether bans could be used more frequently to prevent product-related injuries, particularly for children.

Recalls

Recall measures are more frequently used than bans to limit the supply of unsafe goods in Australia. Under the ACL, a product may be recalled if it appears that it may cause injury to any person. The Commonwealth Minister and responsible State and Territory ministers may publish a compulsory recall notice on the internet for consumer goods of a particular kind where it becomes apparent that a product presents a safety risk or is non-compliant with a mandatory standard or ban. However, most recalls are made voluntarily by suppliers and then communicated to the Commonwealth Minister. If a recall notice is in force, the consumer goods to which is relates must not be supplied in trade or commerce. Since 2010, the ACCC has reported a steady increase in the number of recalls in Australia, with a 14 per cent increase seen from 2013 to 2014.

One of the main difficulties with recalls is ensuring consumer compliance. On average, only half of all recalled goods are returned. For toys, this figure is less than one in five. There is clearly room for the recall regime to be improved.  Three additional measures which could be considered in the upcoming review of the ACL are:

  • First, establishing a “Recall Registry” which allows purchasers to leave their contact details at the time of purchasing particular goods such as toys. This would enable the relevant authority to directly contact consumers who are in possession of recalled items.
  • Second, further promoting existing initiatives such as the Recalls Australia smart phone application, which notifies users of newly recalled items and allows consumers to report products they think are unsafe.
  • Third, using information drawn from other jurisdictions, such as the European Union and the United States of America, to issue recall notices for products of concern before they lead to injuries or even deaths in Australia.

Conclusion

The significant number of recalls for consumer goods and frequent instances of child death or injury linked to consumer products indicates that not enough is being done to prevent unsafe goods from reaching vulnerable consumers. This article has considered the three key aspects of the ACL’s consumer product safety provisions – safety standards, bans and the recall process – which, if strengthened could assist with preventing product-related death or injury of children. In turn, this would assist with the fulfilment of Australia’s obligations under the Convention. The upcoming review of the ACL is an opportune time to reconsider the role of suppliers and Australian government authorities in the protection of child safety.

Hannah Lippmann and Sarah Rodrigues, Summer Clerk and Law Graduate, King & Wood Mallesons.