CHAIRMAN —Welcome. For the benefit of the Hansard record would you please state your full name and the capacity in which you are appearing before the committee.

Ms Jones —My name is Melinda Jones and I appear in a personal capacity, representing myself and my colleague, Lee Ann Marks, from Latrobe University. I am in the faculty of law at the University of New South Wales.

CHAIRMAN —Thank you very much. We have your written submission received on 9 April. Are there any amendments, omissions, or errors of fact that are in the written submission?

Ms Jones —No, there are not.

CHAIRMAN —Would you like to make a short opening statement?

Ms Jones —Yes, I would if that is okay. I wanted to begin by saying a little bit about where we come from. Lee Ann and I are both parents of children. Lee Ann and her husband have three children, I have with my husband five children, so we are coming to this topic as parents dealing with the issue of children, young children, adolescent children, children with a whole range of issues confronting them and us, and also as scholars who have been working in the area of the rights of the child, looking at the relationship between the rights of parents and the rights of children, and also doing considerable work on the rights of children with disabilities in particular.

One of our concerns in reading through the four volumes of submissions that we have received so far was what we saw to be enormous fear that was generated about the convention, and we think that this fear is very much generated by ignorance. The convention on its terms does not in any way deny the rights of the parent. In fact critics of the convention say that the problem with the convention is that it actually gives much too much scope to the rights of parents and the role of families, and much too little to the rights of the child. So the convention, read as a legal document and looking at its terms, is about the rights of the child in the context of the family, and this really leads us to the very, I think, significant issue about the education of the community about the convention.

There is an obligation under article 42, I think it is, of the convention that the Australian government would actually provide information and training both to parents and to children and to the community at large, and there is obviously an enormous amount of work that needs to be done in that regard.

I may just point you to a few places in the submission where I think there are matters that maybe we should begin with. I suppose the first is the issue of the problems confronting Australia's children, and in the other submissions as well there were a lot of matters referred to. We have referred to this in our comment on term of reference 6, in particular the severe shortage of child protection services, of child refuges, of substitute care, mental health services, child advocacy and legal representation, and the fact that there have been no effective measures designed to redress the institutional and structural disadvantage confronting indigenous children.

On top of that, because of our particular focus on children with disabilities, we are very concerned about the situation in which many children with disabilities find themselves, and we have again listed some of those: the situation where some children are being denied education at all; they are not only being excluded from the mainstream schools but they are also being excluded from special schools in Queensland--we have a number of cases in that situation; children with disabilities living in substandard accommodation where there is ongoing abuse in the situation in which they live; the reports of sexual and other abuse of children with disabilities in and out of institutions; the fact that adults very often are able to access communication aids, that these same aids are not available to children; and, very importantly I think, the fact that there is still major invasive surgery in the form of sterilisation being conducted on young girls with disabilities for no other reason than the existence of their disability.

From there I think it is appropriate just to move to the issue of the resourcing question in your term of reference 7 about the adequacy of programs and services of special importance to children. Again, while there has been some resourcing, the resourcing is clearly inadequate to meet the needs of children, particularly when we look at children from disadvantaged and minority groups, indigenous children, children from non-English speaking backgrounds and children with disabilities.

In particular, in terms of disability again, the provision of clean water and adequate nutrition and prenatal maternal health care are very important in terms of preventing disabilities from happening in the first place, and we have communities in Australia that still are not serviced appropriately in that regard. Early intervention services are underserviced, under-resourced and only reach a very small percentage of children who need them. Support for inclusion of children in mainstream education is inadequate, and the list could go on. So when we come to resourcing, there are obviously a lot of issues that need to be addressed.

We took to be the major focus of our submission, though, the practical measures really in legislative or other terms that could be brought about to implement the convention and which could improve the situation for children, so we actually focused on four different bodies potentially that could be created. The first we have referred to with respect to term of reference 5, which is a proposal to establish a children's research institute. One of the problems that I see coming through the submissions that you have received, and one of the problems if you try and teach in this area, is the lack of information about really the situation in many, many areas. There needs to be an enormous amount of research and commitment--research to actually establish what the situation is in many areas.

There is the Family Law Council, there is the Australian Institute of Family Studies. Neither of these are resourced or have as part of their terms of reference children per se. An independent body could be established which could review the situation for children and maybe also monitor any changes that are made, and that could be using one of those models, or alternatively one of those other organisations could perhaps be given jurisdiction with respect to children.

With respect to having a coordinated approach to the convention, we propose that a ministerial council on children should be established--a ministerial council along the lines that is operating with respect to corporations law. It seems to work very well. In that way we can then have a national and intergovernment, whole-of-government approach to the problem, whatever the problems happen to be that need to be dealt with with respect to children. We have also proposed, along with many other people, that at a pre-legislative stage there should be child impact statements being mandated, very much like there are environmental impact statements in areas affecting the environment, and that idea I think has been worked through by quite a number of people who have appeared before you or written to you.

Finally, we support the idea of a children's commissioner being established. This commissioner could be part of or head of the Children's Research Institute, or could be a separate body. Again, there has been considerable work about what sort of functions a children's commissioner could have and what sort of resourcing--which I think is ultimately the question--would be needed to make such a body a worthwhile body to establish. So that has more or less taken you through where we have come from.

CHAIRMAN —Thank you very much. I know we are dealing with the Convention on the Rights of the Child, but if you take some of your suggestions further, why not a centre or a commissioner for the family or why not an office of the family, rather than children? Why just children?

Ms Jones —I think we would see those ideas as not incompatible, and it would be very much the terms of reference that were given to the office that would meet or not meet our interests. As I said at the beginning, the convention is concerned about the rights of children in the context of families but, in the context of what the Family Law Council and the Institute of Family Studies do, both those organisations, while they look at children, do not really focus or give priority to the interests of children in their research. Again that could be addressed by the terms of reference that they are given and the resourcing that they would need to be given, but it is a slightly different focus. I suppose it is a question of what the agenda is. If you are looking at children, ultimately you want children to be able to grow up within the community, and that involves growing up within families.

CHAIRMAN —You were here, I think, and would have heard both the Law Reform Commission and the Human Rights and Equal Opportunity Commission representatives discussing the various interpretations of this convention and in fact agreeing that it would be very difficult, maybe even impossible, to have some sort of umbrella legislation. At the federal level anyhow, do you agree with that? Do you think it would be impossible to have some sort of umbrella legislation at the federal level?

Ms Jones —If we are talking about legislation in the nature of a bill of rights for children, then probably yes, I do not think it would have any impact. Again it depends on the nature of the legislation. I do not think a piece of legislation at the federal level is going to actually resolve or really address the issues that we are talking about. They are much more complex than that. I suppose I have not had enough experience in drafting laws to know if I could imagine one that would work.

CHAIRMAN —Something we have discussed on a number of occasions in this committee is, because of the inconsistencies, the various interpretations of the conventions, to have some sort of declaratory statement made which would make it clear from a governmental point of view exactly what this convention meant in a domestic sense.

Ms Jones —I do not think that would be in any way harmful. I think that could be very helpful, but in the same way we will potentially need that with respect to other international human rights obligations, because we really need to look at children in the context of what a rights bearer is, what it means to say that members of society should be treated with equal concern and respect, and that includes not only children but adults, and it includes children in all their manifestations.

One of our concerns is that very often you will have a statement that says, `Children must have X' or `People must have X,' but you do not actually look to see what that means for particular groups. So to say we have a right to freedom of speech is not a very useful thing to say if you are not able to speak, unless you then say that for that particular group you have to facilitate it in some way. So my concern would be that you would actually have to make sure that the intersections between the different groups are actually articulated in such a document or declaration.

Senator BOURNE —Can I just ask a very narrow question about that freedom of speech. You have mentioned that in Victoria adults are able to access government funding to get communication aids but children are not. Is that the case around Australia or just Victoria, do you know?

Ms Jones —I only know about Victoria because of a particular case where someone was denied access to it. I actually suspect that adults in other states do not get access to this equipment. It is certainly not equipment that is freely available to anyone who needs it across Australia, but I do not know the particular relationships in different jurisdictions.

Senator BOURNE —But it could be the same in other states?

Ms Jones —It could be the same.

Senator BOURNE —Is there any other area besides communication aids that you know of where children with disabilities are treated differently from adults with the same disabilities?

Ms Jones —With respect to mental health services, I would say that there is probably a very big difference in the treatment and certainly in what children can get access to. There are insufficient services at both levels. Very often it is not that there are completely different treatment strategies but just that the resourcing is different in the two areas, and children obviously have different sorts of levels of access to facilities. For example, if a parent had a mental illness that is not being addressed, the rights of the child in the context of the family are very seriously affected. So that comparison may or may not hold, but it would be a matter of particular instances.

Mr McCLELLAND —The issue of children with disabilities is interesting, is it not, because parents may make a decision which they believe is in the best interests of the child, such as institutionalising a disabled child? In those circumstances, do you think it is imperative that the rights of that child be represented in any judicial proceedings regarding the destiny of that child?

Ms Jones —One of the problems for parents of children with disabilities is that they are emotionally caught up in the issue and obviously are very concerned for their child, but also they are often not able to separate out management issues and support issues and the issue of what really is in the best interests of the child.

A very interesting bit of research has been done--not quite on that point, but I will come back to it in a minute if you do not mind--about the sterilisation of girls with intellectual disabilities. Sue Brady in Queensland did research about when there was intervention, and they said to the family, `Rather than sterilising your daughter consider doing these things,' and the things included the provision of adequate respite care so the child could stay in the family but the parents had a bit of relief from having 24-hour a day care for the child. They included some educational training strategies for the child. They included quite a lot of resourcing. When that happened there was not one person who went back to the Family Court or to the Guardianship Board to request sterilisation.

So the interests of a child definitely in that context do need to be represented in some way, but the problem very often is that people are posed as the good guys and the bad guys. It is either the rights of the parents--the parents know--or it is the rights of the child. What the convention does, and where I think the convention is particularly valuable, is that it places a positive obligation on governments to provide resourcing to support families.

So I see in the convention the potential to say that states should be providing respite care, and in the context of children with disabilities a lot of the issues that are very often now posed as conflicts between the rights of the parents and children are simply to do with parents who often cannot cope. The parent would love to do different things very often if they could cope. So we need to find a mechanism to make that possible in a way that respects everybody's rights.

I would hate to see all the money being spent on extra judicial proceedings, giving more money to lawyers and having more money going into the whole litigation process. I would much prefer to see the money going into services and having it administered in that sort of way.

Mr McCLELLAND —The points you raise are entirely valid, but one of the clauses those who criticise the convention frequently refer to is the right for children to have a say in their destiny. That perhaps is a situation where I think any fair-minded person would say the child had a right to be heard in their own interests if it involved institutionalisation.

Ms Jones —It is curious that article 12 would give rise to such distress. In common law we have the idea of natural justice which now applies to any decisions affecting the rights, interests or legitimate expectation of any person--except a person is usually an adult. In any context we have the idea that the person should get a hearing. It does not mean that they get the outcome that they want. It does not mean that everything else has to stop because that person has had a hearing. All article 12 is saying is that if the child is going to be involved and their rights and interests or whatever are going to be affected their voice should be heard, their perceptive should be seen and, if they need an independent person to do it, there should be a mechanism brought in for that. It seems to me that this is not such a radical thing.

Someone mentioned the case of B & B. In B & B it was made very clear that this idea of the child being heard is not definitive of the outcome; it is simply saying that children too are entitled to have equal concern and respect, to be treated not as property--an idea that we have long abandoned--not as good and chattels to be traded but as people with an interest and a right; and that respect can very often be given simply by letting them be heard. I think all of us who are parents know that we are not going to do things just because children decide that they want to leave school or go to school or drive the car or go to the party. Even if they really want to go we do not necessarily say, `Well, therefore you can go.' That would not be good parenting. But I think the point is, as Dr Cronin made in the previous submission, that to let them have their say probably is good parenting.

Another problem I see is that we are dealing with from birth until 18, and the needs, interests, rights, whatever, of people in that age range are very different. My local library was doing a survey about the children's library. This may seem irrelevant except that I think this is actually the sort of thing that the convention is designed to address. They had a big sign up: `Please stop and fill in the survey about the way the library is providing services'. I was there one day with my 15-year-old and 13-year-old, and they stopped and said to me would I fill in the survey and I said, `But I'm not a user of the service. Why don't you ask my children? They're users of the service.' They said, `Oh, no, we're asking parents because toddlers can't fill in forms.' Then they finally said, very bad-temperedly, all right, they would survey the children, and apparently there was then a move and they did actually start surveying some of the older children. But they had not thought that this was an issue. They are the borrowers from the local library after all. I do not read all of their books. I read some of them, but I do not read all of them, and I certainly do not select what books they read. But for a two-year-old I probably would.

So that range is very important, and I think this convention is trying to say that when we are dealing with things like providing library services and the library service is for children rather than adults that children should be heard in terms of what they find is working and not working or whatever the issue is. So it is not going to necessarily be some big threat looming that it is going to interfere. I was not worried that my rights were going to be interfered with if they asked the children about a service that affected them more than it affected me.

Senator ABETZ —I think generally everybody has agreed that the spirit of the convention might be okay, but it is its terms and practical outworkings that provide the concern. In your opening comments you made mention of the right of a child to have adequate food, for example, and clean water. Chances are nobody would disagree with that and would say that that is about as fundamental as you can get. Yet, in one of the submissions, it says:

Dr Weston said that doctors are not infallible. "I am personally acquainted with three genetically small children whom Dr X diagnosed as malnourished. After several months in an institution, where there was minimal weight gain, the children were recently returned to the mother by the magistrate," he said. "When one is constantly dealing with the problem of child abuse, it is easy to develop a presumptive bias towards guilt. . . "

The damage done to the Hill daughters through government intervention has been great. "Emily and Eliza have been through hell," Mr Hill said. "When they were taken away from us, they thought we were punishing them."

Here is a very good example of government officials, undoubtedly with the best intentions in the world, doing untold horrific damage to a family unit--shades of the stolen generation. I have got to say to you as a parent that I become very suspicious and concerned when social welfare agencies think they have a right or a duty to interfere in the case that I have just read out to you and in other cases. At the end of the day, if I had to make a judgment whether the parents are better or some social institution is better to bring up kids or decide what is best for the kids, I reckon 99.99 per cent of the time you would say the parents.

I think that is what has caused a lot of fear within the community--that this case of the Hill children is not an isolated situation. The state of Victoria I think had numerous examples. I do not think those welfare officers set out to be mean and nasty and to destroy families, and chances are--exactly with the stolen generation as well--the welfare officers there really did not have that intention, but that was the unambiguous consequence of their action. How can we guard against that with these sorts of conventions?

Ms Jones —That is a very sad story, and it is certainly not the only one of that nature. I suppose part of the problem is that I do not think the convention affects that one way or the other, with one caveat. But before I get there let me just say that we are dealing with human agents, and we know that in the context of child protection there have been very bad decisions made in both directions. At times there have been decisions not to intervene, and there has been quite a lot of recent information about child abuse in New South Wales where the department had chosen not to intervene because they felt they trusted the parents or whatever else and they made the wrong decision. I do not think we are ever going to get around that problem, no matter whether we have the convention or do not have the convention.

But one thing that the convention might help with is to add one level of reflection to the process. Let us just stop and think what is in the best interests of the child here. Let us actually go and ask the question, `What could be done to improve the situation? What would be the benefits of leaving the child in the family and what would be the benefits of taking the child out of the family?'

Senator ABETZ —That is allegedly already officially the test that welfare agencies apply, namely, it was determined by somebody, `These kids are malnourished, therefore it is in their best interests to take them into an institution,' and then months later they realise, `Well, possibly it wasn't in their best interests, so we'll take them back again,' dislocating the children further, but of course ultimately for their benefit being put back with their parents. That test of the best interests of the child is not a new one--it has been around for a long time--but its interpretation seems to have got very much out of kilter.

Ms Jones —Lee Ann and I have spent a lot of time discussing this problem. She is a family lawyer and I am a human rights lawyer, so we come from different directions. I would argue that very often this test of best interests actually has nothing to do with concepts of rights, and while I do not think we will solve the problem by having a concept of the rights of the child there, because of the sorts of issues of mistaken fact and the complexity of particular situations, rights have to be seen as more complex than in terms of just taking them away or leaving them there. If we say that the child has got a right to stay with its family, which is one of the things it says in the convention, then there is a stronger onus on the welfare agencies before they take any step to say that they are going to have to make out their case.

Senator ABETZ —What makes you say that it is in the convention--the fact that it says so in the preamble?

Ms Jones —I can refer you to the section.

Senator ABETZ —The preamble tells us:

Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment . . .

Is that what you were referring to?

Ms Jones —Certainly that; but, if you go through, article 3(2) says that parental rights and duties and responsibilities have to be taken into account and respected with respect to particular welfare measures. Article 5 says--this is just a summary without reading it all out--that parents and extended families are best able to provide guidance and direction for the families. All the way through we can find--

Senator ABETZ —It is not exactly all the way through, but could I put to you that a lot of the community angst could be overcome, and indeed the United Nations may have done a greater service to the world community, if instead of talking about a convention on the rights of the child they had talked about a convention on, let us say, the family unit as being the best place to bring up a kid and that children, in recognition of the wonderful services the parents provide in washing, feeding, clothing, ironing, vacuuming, providing lunch to school, et cetera--all those freely provided services--also have a responsibility to respect the guidance that the parents seek to provide to them, even if at their stage in life they might consider that guidance to be somewhat misguided. It just seems a more holistic approach to the situation than just saying, `Kids have got rights.'

Ms Jones —There was a reference made earlier on to the Ten Commandments, and the Ten Commandments say to children, `Not only should you respect your parents but you are going to got a reward for doing so. Your days will be long on the Earth the Lord hath given you.' So there are a lot of things in terms of moral education that parents have still got complete control over, with respect. The convention does not interfere with that in any way.

Senator ABETZ —What about, just on that very point, if a child makes a determination at age 10 or 11 that it no longer wants to go to church or religious education classes at school? Do we have to look after the rights of the child to freedom of expression and religion and things of that nature under the convention?

Ms Jones —Both under the convention and under the common law, which I do not think is affected by the convention--I mean if the convention was there it would bolster the common law position--parents are required to respect the emerging capacity and maturity of the child. So there is going to be a point if the child is Gillick competent--that is, the child understands the nature and is mature enough to respond to the situation, and I cannot tell you if the 10-year-old would be; in my family two of my children would have been and one of them would not have been, so it is not an age matter--where we have to say, `If our child does not want to go to church, then the parents have to say somewhere along the line before they are 18.' In most cases that would happen before they are 18. It is a continuum, though. It may even happen when they are 17.5 or 18, or it might happen when they are 10. But there comes a point when we do have to respect that, yes.

Senator ABETZ —Yes, but you would not see a situation for example where the father tries to physically manhandle a 17 1/2-year-old into church. That would be a ludicrous proposition, I would have thought, for anybody. But let us say a 10-year-old makes that determination more emphatically, and then rings up the National Youth Advocacy Centre, from whom we heard this morning, who will assist any youth that rings them on matters of this nature.

We were told of one example where scarce legal aid funds were used to conciliate on behalf of and argue for the child about the need to wear a school uniform. It just seems to me that these rights have gone right out of kilter. When there are very real and pressing needs in the community, we are spending scarce legal aid dollars to allow a kid to fight whether he has to or does not have to wear a uniform. It just seems to be--to my simple mind--very much out of kilter.

Ms Jones —If there is a major conflict between the parent and the child, to the point where a family breakdown is going to come about in some form or the child is going to leave home and become homeless or go on the streets or whatever the child is going to do, then some intervention in that family is needed. If it comes over because of a conflict about going to church or whether it comes over because of school uniform or whether it comes over for some other reason, that is a family that needs help. It is not going to survive as a family unless help in some form is provided to it.

Senator ABETZ —If you look at society today, those sorts of problems have existed throughout the ages where kids have not wanted to wear uniform, have run away from home or whatever. I pose the question: is there now less of that within the community as a result of all these national youth advocacy centres and children being told about their rights? Has the situation got better? Are more children staying at home with their parents because these positions have been resolved or are we finding more and more kids on the street?

I think the unfortunate conclusion that most commentators come to is that more and more kids are leaving home and, if that is the case, then you have to wonder about the efficacy of some of these programs and the philosophy behind them.

Ms Jones —I would submit that there is very little knowledge by any children or by anyone else in the community about what rights children have and that knowledge, therefore, could not have had any impact one way or the other. The sorts of reasons why children--

Senator ABETZ —We have had, with respect, a stack of anecdotal evidence in our electoral offices, but also before this committee, where children at the age of eight say to their mother when a demand or command is made, `That is verbal harassment, you cannot tell me what to do.' Whilst you might laugh and I might laugh--I do not have a child that is eight yet, but I only have a year to go--if that situation were to arise and the parent asks, `Who told you that this was verbal harassment?' the children say, `Oh, my teacher did.' I have got to say to you that that sends horrifying messages throughout the community. With respect to some of the people that have given evidence to us, especially earlier this morning, they do not seem to link into that community concern at all. Or, if they do, they are very dismissive of it.

You said that there needs to be education of the community because it is so misunderstood. And yet the previous Minister for Justice, Senator Michael Tate, thought reservations ought to apply in relation to parental rights. The former Shadow Attorney-General, Andrew Peacock, was of that view. The current environment minister, who was then a former foreign minister, Senator Robert Hill, was of that view. You can go through a lot of people who according to you and the Human Rights and Equal Opportunities Commission were somehow not properly educated about the impact on the convention, which I see is somewhat patronising, but also very concerning in that there can be such a divergence of views.

Ms Jones —I think there is a very big difference between being able to use rhetoric and actually understanding a concept. The concept of rights is about respect. We have seen very big problems in our society recently in terms of the increase in racism, the increase in racial violence, the disparagement between different sectors of the community that actually is indicative of the fact that people have not understood, whatever way you want to describe this, the notion of what rights are all about. Rights are about learning and understanding to respect each other and give each other the respect that is due and appropriate in the particular circumstance.

While there is a lot of use of the language of rights, every man and his dog has a right to everything. They have a right to have guns, everyone who wants to make a case says they have a right to it. Everyone who does not want you to do something says, `I have a right not to do it.' It does not follow that they actually understand this concept of rights which actually is more complex and can be used in a more complex way.

Certainly, no evidence has come across any of the scholarly meetings, academic meetings, or other meetings I have been to on children's rights from educational authorities, from members of the parents and citizens association, from places like that, where there is any evidence that there is actual knowledge of the convention throughout schools, throughout the community. A survey was done a few years ago which showed that most people that were surveyed did not know whether we had a constitution or not and did not know whether we had a bill of rights. I think it is highly unlikely, given the general community knowledge on those things, that people would have any sort of detailed working knowledge of the Convention on the Rights of the Child.

My children, who are in a household where I work in this area, last night when I said that I was doing this today, said to me, `Well, what is this Convention on the Rights of the Child?' They are involved in all sorts of community things with schools and, although I have spoken to them about it before, until last night they had not actually physically looked at it and there had been no environment in which it had been physically mentioned or there had been any sit-down discussion. My oldest is 15. The convention has been around for quite a few years and she operates in many different circles. That was certainly the feeling at the children's rights conference that was held in Brisbane earlier this year--that was the sort of feel that was coming through.

Mr TONY SMITH —You spoke about how rights were about respect and learning to respect others. Would you agree with the proposition that every claim of right can be wholly translated into the language of duty?

Ms Jones —No, I would not.

Mr TONY SMITH —You do not, and you would disagree with Professor Finnis of Oxford University, would you?

Ms Jones —That is right, I do. I have had long debates with him on that subject.

CHAIRMAN —Thank you very much indeed.

[12.47 p.m.]