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Australian Journal of Human Rights |
Melinda Jones[*]
Of all the United Nations Human Rights instruments, the Convention on the Rights of the Child (CROC) is the most widely ratified. It has been accepted by some 200 State parties, the only notable exception is the US.[1] The CROC has been described as a `milestone in the development of civilisation in its recognition of the fundamental importance as a universal concept of the rights of the child'[2] and is said to `embody the world community's view of minimum standards which governments should adopt'[3] in dealing with children.
The CROC reaffirms that the human rights principles contained in United Nations (UN) instruments apply to all children. It incorporates civil and political rights, and social, economic and cultural rights; provides standards with respect to the treatment of children both during times of peace and in times of armed conflict; accepts the autonomy of the child, at the same time as placing the child in the context of the family, or extended family relationships; pays heed to the rights and duties of parents, as well as the overriding obligations of States; is culturally sensitive, recognising the social and cultural needs of children of indigenous communities as well as those children of minority cultures. Van Bueren describes CROC as being concerned with the `Four "Ps": the participation of children in decisions which affect their own destiny; the protection of children against discrimination and all forms of neglect and exploitation; the prevention of harm to children; and the provision of assistance for their basic needs'.[4] While CROC is primarily the codification of rights which existed at international law without specific application to children, it also introduces some new elements. These include the obligation on States to abolish traditional practices prejudicial to the health of children and the obligation to provide rehabilitation for victims of abuse, exploitation or neglect. Significantly, it introduces for the first time binding standards with respect to the rights of children with physical and intellectual disabilities.[5]
When CROC is closely scrutinised, however, it can be seen as an inoffensive document, which puts the rights of the child on the agenda while affirming the importance of the family. The CROC is innocuous -- a convention to which it was thought nobody could object. This is in part because of the consensus process by which it was derived; a process which ensured that anything controversial was left out. The instrument has no individual complaints mechanism: its implementation is left to the good will of States, whose primary responsibility is to report to the Committee on the Rights of the Child.[6] Nonetheless, if one should wish to take the rights of the child seriously, CROC is a good starting point. Within the terms of CROC it is possible to find a guarded support for most of the issues which have concerned the various proponents of children's rights theory, without giving priority to any one theory over another.
Australia ratified CROC on 17 December 1990 and it came into force in Australia on 16 January 1991. In ratifying CROC, Australia accepted that it had legally binding international obligations with respect to the treatment of children. This is significant because, as Pritchard pointed out, `[t]he Convention on the Rights of the Child contains a statement of children's rights in advance of anything formulated in rights terms at the national level'.[7] The standards contained in CROC are a standard to be applied at all levels of government, so they apply equally at the Commonwealth, State and Territory level.
By ratifying CROC, Australia not only made commitments at an international level and acquired international obligations. It also held out a promise to the Australian people, in particular, to Australia's children. That promise, and those commitments, can be reduced to four. First, there is the promise and commitment to implement the subject matter of CROC. Second, there is the commitment to report on a periodic basis to the Committee on the Rights of the Child about the extent of children's rights in Australia and any problems. Third, is the associated promise to the Australian community that it will make available to the public the reports which are submitted by it to the Committee on the Rights of the Child. Finally, there is a commitment and a promise to make the principles and the provisions of CROC widely known to Australia's adults and children alike.
The concern of this article is not so much with an analysis of the details of CROC but with the assumptions made about this convention by ordinary Australians. An inquiry into the Status of the UN Convention on the Rights of the Child was conducted by the Joint Standing Committee on Treaties throughout 1997 and it reported to Federal Parliament in August 1998.[8] This review of the impact of CROC in Australia gives a unique insight into the opinions and thoughts of concerned groups and individuals. Submissions were received from over 700 organisations and individuals, the vast majority of whom were decidedly opposed to CROC: either to the provisions of CROC or to Australia's ratification of it. These submissions reflect a basic misunderstanding of the role of international law in Australia, and serious misconceptions about the terms of the CROC. It is these perspectives that this article seeks to address.
For those committed to the achievement of human rights and social justice in Australia, it is very important to touch base with the general community's view about a treaty such as CROC. It is important because it shows the work that needs to be done to redress problems borne from ignorance. This is crucial in that it reminds us that we must not only talk to the converted but must address the passionate and heart-felt positions of good and concerned, if misguided, citizens. It also comes as a salutary reminder that these voices are heard and taken seriously by governments, and that voices we may consider to be sane and authoritative are only granted the same weight as all the other supplicants. This means that it is essential that informed groups and individuals participate in government inquiries in equal numbers and with as much passion. For unless a counterweight is provided to balance the fear which underlies many of the myths about CROC, it is possible that governments will give precedence to the majority view.
Joint Standing Committee on Treaties Inquiry into the Status of the UN Convention on the Rights of the Child
Before exploring the myths about CROC, it should be noted that the Report of the Joint Standing Committee on Treaties Inquiry into the Status of the Convention on the Rights of the Child (the Inquiry) did not accept any of the myths contained in the submissions. The Terms of Reference of the Inquiry were:
1. The domestic ramifications of Australia having ratified CROC.
2. Federal and State progress in complying with CROC.
3. The difficulties and concerns arising from implementation in its current form.
4. Possible inconsistencies between domestic jurisdictions and the need for agreed national standards.
5. The need for a mechanism to promote, monitor and report publicly on compliance and implement public consultation processes.
6. The adequacy of administrative, legislative and legal infrastructure in addressing the needs of children.
7. The adequacy of programs and services of special importance to children.
8. Any further action required in relation to CROC.[9]
There are a number of possible explanations for the decision to undertake this Inquiry. First, the ratification of the treaty in 1990 was surrounded by controversy, with concern about the impact of CROC on parental rights and on the family unit,
and about the power of international instruments.[10] This concern and confusion about the effect of treaties on Australian law led to the 1995 Trick or Treaty? report, in which CROC was used as an example of implementation `gone wrong' and an incident of inadequate public consultation.[11] Therefore, in an environment of exposure of other crucial problems effecting children, such as insufficient resources for Aboriginal health and education, the Stolen Generation report, and the inquiry into paedophilia,[12] it could have been considered important to determine whether previous community concerns had abated or were still prevalent.
Second, the effect of ratification of international instruments in general, and CROC in particular, was raised by the High Court in the case of Teoh.[13] This case concerned an attempt to deport a Malaysian citizen in circumstances where deportation would have adverse effects on his children who were Australian citizens. In arguing against deportation, reliance was placed on CROC, even though while it had been ratified by Australia it had not been incorporated into Australian law by legislation. The High Court held that a decision maker who proposed to make a decision that departed from a treaty that had been ratified but not incorporated into domestic law, would deny procedural fairness to the person whose interests would be affected by the decision, unless that person was given the opportunity of a hearing in this regard. This is because the Court held that the ratification of a treaty by the executive, while not amounting to a binding rule of law, does create a legitimate expectation that the government and government agencies will act in accordance with that treaty.
Third, there were other possible motivations for the Inquiry's instigation, including the existence of a number of government and non-government reports that had proposed the creation of a Children's Commissioner and had called for the terms of CROC to be incorporated into Australian law.[14] Further, the alternate report submitted to the CROC Committee by Defence for Children International outlined some significant problems faced by Australian children.[15] While the general impression was that the purpose of the Inquiry was to reinforce and promote the values contained in CROC, there were rumours to the effect that the purpose of the Inquiry was to facilitate Australia's withdrawal from CROC. The Recommendations of the Committee do not support the rumours. Whatever the case, the Inquiry provided the opportunity for many Australians to be heard on the subject of children's rights.
This article analyses the 424 submissions to the Inquiry and the 53 supplementary or amending submissions.[16] It would appear that, of all the submissions, only one submission was authored by a child. While approximately 125 of these submissions were pro-CROC or pro-child (approximately 25 per cent), the remainder were either completely anti-CROC or at least argued for substantial amendments or reservations to CROC. It is also interesting to note that while the majority of submissions supporting CROC were from non-government organisations (NGOs) engaged in promotion of human rights or children's rights, the majority of the anti-CROC submissions were from private individuals.[17] A broad range of organisations made submissions to the Inquiry including generalist bodies such as the Human Rights and Equal Opportunity Commission (HREOC) and the National Children's and Youth Law Centre, as well as specified interest groups such as the Head Injury Council, Ethnic Child Care Development Unit and the Refugee Council of Australia.
Those responses that were in favour of CROC tended to adhere strictly to the `terms of reference' of the Inquiry, taking time to respond to the specific questions with careful, rational argument. While some of the pro-CROC responses were based on more specific issues, this tended to be a reflection of the concerns of the organisation as a special interest group. Generally, the pro-CROC submissions tended to be longer than the anti-CROC submissions, as they contained substantial arguments which were documented with supporting evidence. There were diverse responses within the pro-CROC submissions, and attitudes within the submissions varied greatly depending on the author's particular interpretation of CROC. For example, the Australian Catholic Bishops Conference were very supportive of CROC generally, but argued that it must be interpreted so that no power to protect children should exceed parental authority.[18] They also argued that CROC must be interpreted to include protection of the child before birth, thus prohibiting abortion.
The anti-CROC submissions tended either to argue against the whole convention -- arguing, for example, that the UN cannot govern Australia -- or to point to specific articles raising a plethora of tangential issues. These submissions tended to lack coherence and could easily have been dismissed as irrational, illogical or insubstantial, but given that they were the legitimate expression of opinion by members of the community sufficiently motivated to make a submission to a public inquiry, they should not be ignored.
A number of myths concerning CROC wove their way in and out of the submissions to the Inquiry.[19] These can be reduced to four primary myths that dominated the thinking about CROC in the 75 per cent of the submissions that I have classified as anti-CROC. The first myth is that CROC interferes with Australia's sovereignty. The second myth is that CROC interferes with the Federal balance, imposing Commonwealth will on the States. The third myth is that CROC interferes with parent's rights and is anti-family. Finally, there is a myth that Australian laws with respect to children's rights are themselves adequate and that CROC is therefore unnecessary in the Australian context. These myths highlight the confusion in Australia about the effect of international treaties generally and CROC in particular.
Underlying the first myth, that CROC interferes with Australia's sovereignty, is a misconception about national sovereignty and the effect of international treaties. There is a concern that Australian law should not be made by non-elected, non-democratic, non-government bodies outside Australia.[20] The following comments from the submissions give the flavour of the submissions subscribing to this myth:
1. `Australia is submitting to a Committee that its citizens did not elect and whose members are from countries with a child's rights record not nearly as substantive as Australia's.'[21]
2. `... ratified treaties have the power to override the laws established by our parliaments.'[22]
3. The UN is a `dictatorial body' with the potential for a situation reminiscent of `the holocaust of WWII, China's Mao government, Russia's oppression of non-conformists ... '[23]
4. `The UN can not impose its morality as universal, if we Australians judge ... that some conventions speak the truth only then do they deserve our support.'[24]
5. `... no Australian government has been given the mandate to place the Australian people under the direction of the unelected, humanistic and intolerant UN and their often communist treaties.'[25]
6. `America did not ratify this convention. Why should we?'[26]
7. `The UN work is a cleverly disguised attack of ... a belief in a Divine Being and Divine Laws.'[27]
The fundamental error contained in the myth about CROC interfering with Australia's sovereignty is the assumption that international instruments give power to external bodies to control the activities of the Australian Government. For those who are proponents of international human rights law it is often a disappointment that international law has no such power. Rather, in Australia, international instruments have an extremely limited impact both at law and at the level of social policy. While it is true that the Commonwealth has wide power to enter into international treaties, including human rights treaties, these do not become part of Australian law unless they are specifically incorporated into law through legislation.[28] Although there have been some openings for international human rights law to play a role in the development of Australian law, these opportunities are limited.
The Australian Constitution does not expressly grant power to the Commonwealth Parliament to enter into treaties or to enact legislation to implement treaties. The External Affairs power -- s 51(xxix) of the Australian Constitution -- has been interpreted by the High Court to confer treaty making power onto the Commonwealth Parliament.[29] This power has been interpreted broadly to allow Federal Parliament power to make laws implementing not only Australia's current international obligations but also Australia's `reasonably apprehended'[30] obligations as well as international laws of jus cogens.[31] However the Commonwealth Government, or rather the Commonwealth Executive (Prime Minister and the Cabinet), does not either enact legislation or engage in treaty making in a vacuum. Since 1996, the treaty making procedure in Australia has involved the requirement that all treaties, whether bilateral or multilateral, be tabled before both Houses of Parliament at least 15 sitting days before the executive takes binding action with respect to the treaty. Because treaties are fundamental instruments of international law, and have importance (if not full legal effect) in Australia, it is considered important that knowledge about Australia's treaty making moves beyond the realm of the executive.[32]
The treaty making process is formalised in Principles & Procedures for Commonwealth-State Consultation on Treaties.[33] This provides that treaties laid before Parliament are to be accompanied by a National Interest Analysis (NIA), setting out the major treaty obligations as well as the benefits of ratification of the treaty. The NIA also includes a comment about the consultation process between the Federal Government, the States, Territories and the Executive. The treaty and the NIA are scrutinised by a Parliamentary committee which reports to Parliament and facilitates any Parliamentary approval or disapproval of the treaty. While the decision to enter into a treaty remains in the hands of the Executive, it will no doubt be strongly influenced by the views of Parliament.[34]
While CROC was not subject to the current treaty making regime, the informal process of consultation that preceded its ratification has direct parallels with the current formal procedure. Just as `the new treaty procedures should help to still criticism that the Executive is using the treaty making process surreptitiously to impose obligations on Australian citizens'[35] the very careful consultation process surrounding CROC should have had this effect.[36]
As noted above, treaties, including human rights treaties, do not become part of Australian law unless they are specifically incorporated into Australian law through legislation. There are three situations where treaties may have an effect in Australia: in the interpretation of statutes; the development of common law rules; and in the exercise of administrative discretion. With respect to statutory interpretation, the courts have held that wherever possible statutes are to be interpreted consistently with Australia's international obligations. However, where the words of the statute are clear, the terms of the statute must be given effect even if the result is inconsistent with the terms of a treaty.[37] With respect to the development of common law rules and principles, the courts have referred to, and considered, international law in a small number of cases, in order to tease out the appropriate direction for the common law.[38] While reference by courts to international obligations and international sources of law has become more frequent and is becoming more acceptable, there is no evidence that any priority has been given to international law over Australian approaches at any time.[39]
It is the decision in Teoh[40] regarding the exercise of discretion by government officials, that has caused angst in many quarters about the impact of international law. This disquiet has extended to governments of all political persuasions, which have responded by drafting legislation to override the decision in that case.[41] However, the High Court did not require the decision-maker to apply the treaty. On the contrary, the High Court confirmed that it is within the power of government officials to act contrary to international law. What the High Court did decide, though, was that the ratification of a treaty sent a message to Australian citizens that the government intended to comply with the terms of that treaty, and that the existence of the message of ratification of the treaty would give rise to a `legitimate expectation' that the treaty would be complied with.
The fact that a treaty has not been incorporated into domestic law does not mean that its ratification holds no significance for Australian law. Where a statute or subordinate legislation is ambiguous, the courts should favour the construction which accords with Australia's obligations under a treaty or international convention to which Australia is a party. This should occur at least in those cases in which the legislation was enacted after, or in contemplation of, entry into, or ratification of, the relevant international instrument. This is because Parliament, prima facie, intends to give effect to Australia's obligations under international law. It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law.[42]
The effect of the decision is that, where a government official intends to make a decision that is inconsistent with the terms of a treaty, the person who is to be affected by the decision must be given the opportunity to make submissions with respect to the application of the treaty. This is a far cry from the government, or any other body, gaining power as a result of ratification of a treaty. The general principle that treaty obligations must be specifically incorporated into domestic law before they become enforceable, protects Australia from any unwelcome impact of international law. The question of Australia's sovereignty is not called into question by the existence, or ratification, of any international instrument.
The second myth, that CROC interferes with the Federal balance, is exemplified by the following comments:
1. `... ratification via the External Affairs power in the Constitution tends to increase enormously the legislative power of the Commonwealth as against the States, and invalidates the balance in Federal/State relationships.'[43]
2. `These rulings undermine our Federal system of government, transfer power from the States to the Commonwealth and then from the Commonwealth to the UN in New York. This is not democracy.'[44]
3. `... gross abuse of the Australian Constitution ... opens the way for Federal Parliament to override State laws in areas covered by the Convention even though such powers have never been given to the Federal Parliament by popular referendum.'[45]
In part these comments reflect myths about the Australian Federal system as much as about CROC. Australia is seen today as one country with national policies and practices reflecting a coherent dominant culture with its unique blend of English institutions and Western political values. The reality of relative power within the Australian Federal system is not a matter of the exercise of treaty making power, although in some limited areas treaties have facilitated centralisation of power in Australia.[46]
The Commonwealth is particularly conscious of the position of the States in the process of treaty making, and is careful to include State bodies in decision-making with respect to signing and ratifying treaties. Australia played a leading role in drafting CROC. Throughout the 10 years of the drafting process, consultation occurred between State and Commonwealth governments. From 1980, CROC was on the agenda of the Standing Committee of Attorneys-General (SCAG). Australian delegations attended all sessions of the convention drafting committee, and the States and Territories were represented on the delegation on each occasion. The negotiations which took place through SCAG resulted in a unanimous agreement between all the States and the Commonwealth about the ratification of CROC.[47]
It is true that, as a party to CROC, Australia has taken on some international obligations. However, these are not obligations taken on by the Commonwealth Government alone or to be imposed on the State governments. Rather they are international obligations applying to all governments within the Australian Federal system. Given the involvement of all State governments in the process of agreeing that Australia should become a party to CROC, it is not unreasonable to suggest that the States have accepted an obligation, not that this obligation had been imposed upon them.
The most pervasive myth about the CROC involves a total misunderstanding of the content of CROC. The terms of CROC were drafted over many years and were finally determined by a consensus process of States. The result of this was that CROC in fact offers a relatively weak protection of children's rights, because the drafters tipped the delicate balance between the child's need for welfare and their rights and autonomy needs, in favour of support for the family as the nurturing unit. A great emphasis was placed on the beneficial and beneficent aspects of family life, the reliance of children on parents for nurturing and the ideological commitment to the family as the ideal location for development.[48] Those concerned about promoting the rights of children, and who recognise that the family can be a very unsafe place for some children, are critical of CROC on the grounds that it is far too pro-family and provides far too little real advance in terms of children's rights.[49]
However, the myth that CROC interferes with parents' rights and is anti-family is woven into the fabric of almost every anti-CROC submission. This myth takes a number of forms, which can be seen as variations on a theme. The articulation of the myth does not come from isolated comments of uninformed trouble-makers -- the following comments are representative remarks by concerned members of the Australian community.
The first examples are general in nature, but also suggest that CROC empowers children to resist their parents:
1. The CROC `... stops parents from being able to prevent their children from getting involved in dangerous cults'.[50]
2. `... as a parent, I feel threatened by "overseas big brothers" trying to force their country's moral opinions on me and my family.'[51]
3. `... parents are given all the responsibility but with diminishing rights to rear their own children in the way in which they see fit.'[52]
4. `Take away parents responsibilities and rights and you end up with more delinquents!'[53]
5. The `... inevitable consequence of giving children rights ... is undisciplined behaviour, or worse still, rebellion'.[54]
6. `The Convention is fundamentally opposed to the whole concept of the family ... It is no coincidence that, since the ratification of the Convention, Australian children have been actively encouraged to leave the family home at an extremely young age ...'[55]
7. `Much has been said about families being the backbone of our nation. There are of course those who are hell bent on destroying traditional families ... this Convention has been designed to protect the rights of individuals against family claims and intrusions.'[56]
8. `We should not be thinking of children in isolation. We should be thinking of families and ways to support families which will ensure that children's needs are met ... There has been far too much interference by governments in family life ... Governments have played a far too significant role in the undermining of the family by measures such as reduction of economic support, easy divorce laws, support for voluntary single parenthood ...'[57]
9. `... para 7 [says] that the child must be brought up "in the spirit of the ideals proclaimed in the Charter of the United Nations". What if the family unit has a religion that does not hold the United Nations as god?'[58]
In the context of the fear of loss of control over children by those in authority, there are four concerns that permeate the submissions. These are: the rights of the parents with respect to freedom of religion; the problem of drugs and delinquency; the issue of corporal punishment; and concern about abortion. In each of these matters the fear of the `breakdown of society', and the anxiety that the world `as we know it' is out of control is evident. In each case there is nothing, even potentially, in the terminology or overall meaning of CROC that could reasonably give rise to these fears. Some examples of comments reflecting these concerns follow.
1. `... parents have the right to guide their children away from entering fringe religious cults.'[59]
2. `As children become increasingly aware of the contents of Article 14 [freedom of thought, conscience and religion], it will become a growing difficulty for parents who try to encourage their children to adhere to the traditional religious practices of the family. Satanic cults are particularly interested in young adolescents and will, no doubt, soon be aware of the misuse that can be made of Article 14 by enabling strangers to attract children away from the religion of their family.'[60]
3. The CROC prohibits teachers from informing parents of increased truancy, drugs, delinquency etc.
4. The CROC (Article 16) removes from parents the right to know what their own children are doing.[61]
5. `If one of my children brings a knife, gun, pornographic magazines, drugs or any other item I would not normally allow in our house ... does that mean I'm not allowed to search for and deal with it as I deem appropriate?'[62]
6. Smacking or physical punishment is `advocated in the Bible'.[63]
7. `... corporal punishment is a very effective means of punishment ... the growing number of children in full-time day care' is closer to child abuse.[64]
8. `... corporal discipline may be given in the love and best interest of the child.'[65]
9. `We support the Convention in quoting the Declaration of the Rights of the Child when it states that "the child, by reason of physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth" and we deplore the present killing of unborn children in our nation. We believe the Commonwealth Government should immediately cease funding abortions through Medicare ...'[66]
There is no doubt that the task of parenting is a difficult one, and that the challenges of the late 20th century have led to a re-evaluation of the role of authority in a number of areas. However, it is important to understand that no matter how disruptive or dysfunctional modern family life may be, it is nonsensical to blame this on any form of law and in particular on the bland declaratory terms of CROC. As Michael Antrum, of the National Children's and Youth Law Centre at the University of NSW, commented:
It is difficult to understand hostile opposition to CROC from some family and some religious organisations. The CROC enshrines the pre-eminent position of parents in relation to the child in Article 5 ... and in Article 18(1) ... in at least 11 of the operational Articles of CROC, parents are referred to beneficially, and in others they stand to benefit indirectly as a result of the implementation of those Articles. The Convention is not anti-family, and it is not anti-parent, it is quite the opposite.[67]
Perhaps the most distressing aspect of reading of the submissions is the incredible optimism and extreme ignorance about the position of Australia's children. Instead of understanding that there are serious problems confronting many of Australia's children, much too often the submissions suggested that the situation in Australia was optimal, and that we do not even need CROC as a benchmark against which to measure Australian law and practice. Consider, for example, the following comments:
1. `CROC is only really necessary for overseas countries with problems such as the exploitation of child labour.'[68]
2. `Australian laws already cover what is set out in the Convention. Our concerns are that it is being used as a legal document by those in authority when it has not been written into our legislation ... Australia's democratic government provides that the legal infrastructure in addressing the needs of children is adequate where properly administered.'[69]
3. `Why is the United Nations wasting their time and resources in Australia where our problems are minor in comparison, and when the Australian people and government are working towards resolving their problems?'[70]
4. `I am thankful that I live in country where children are protected by the law from abuse of various kinds and where children's well-being is safeguarded by the law.'[71]
While the situation for many Australian children is as satisfactory as this myth suggests, this is definitely not the case for all Australian children. According to Action for Children (South Australia), approximately 14 per cent of Australia's children live in poverty.[72] Many of these are indigenous children and those living in remote areas, where there is not only poverty but little in the way of government services and support. While the Australian population is aging, over 40 per cent of all indigenous people in Australia are under 15 years of age: `on any social indicator, such as health, housing, education, income or contact with the criminal justice system, indigenous people are the most disadvantaged group in Australia'.[73] The life expectancy of indigenous youth and children is 19 times shorter than non-indigenous children.[74]
Although there is a system of universal health cover in Australia, significant health issues confront Australia's children. Youth suicide is the second greatest reason for death of males aged 15-24 years old (after car fatalities).[75] The serious deficiencies in the treatment of mental illness in children are exacerbated by poverty. Preventable diseases such as diabetes, respiratory and circulatory illnesses occur in indigenous children much more frequently than in non-indigenous children.[76] In some indigenous communities, 100 per cent of babies under three months have ear infections, with 60 per cent having perforated ear drums. The result of this easily preventable illness is that 50 per cent of indigenous primary school aged children have significant and permanent hearing loss.[77]
The Australian population is comprised of people from at least 100 ethnic groups, with 22 per cent of children coming from non-English speaking backgrounds, yet our education system does not sufficiently provide for the preservation of cultural identity. Both children from non-English speaking backgrounds and indigenous children are significantly over-represented in the juvenile justice system. An Amnesty International report[78] found that over a 12 month period, 25 per cent of indigenous people over 13 in Western Australia were arrested at least once in the last five years. Despite the fact that indigenous children constitute 2.6 per cent of the 10-17 year old population of Australia, they represent 36 per cent of the juvenile justice centre population.[79] No government has implemented the 62 recommendations from the Royal Commission into Aboriginal Deaths in Custody;[80] nor has appropriate action been taken to mitigate the effects of the Stolen Generation, and to protect today's children from the legacy of genocidal government policy.[81]
Further, there are a number of significant issues affecting the rights of children in the juvenile justice system. When Australia ratified CROC, a reservation was made to Article 37.[82] The effect of this is that children can be imprisoned with adults with impunity. This, too, appears to be a practice which disproportionately affects indigenous children. Three other examples of unacceptable practice in the juvenile justice area are: the NSW Children (Parental Responsibility) legislation[83]; the Northern Territory mandatory sentencing legislation[84]; and the Western Australian `three strikes and you're in' legislation.[85] In each case, children are liable to receive a harsher punishment than adults for the same behaviour.
Children with disabilities are inadequately accommodated (and educated) within state education systems and there is some evidence that children in Queensland may be being denied access to education throughout compulsory school years.[86] The discriminatory practices within education were documented by the National Children's and Youth Law Centre.[87] Children with disabilities are disproportionately in care, and incidence of abuse are significant. Despite the decision in Marion's case[88] that all non-therapeutic invasive surgery requires the consent of the Family Court, there is evidence that hundreds of young people with disabilities continue to be sterilised without Court consent.[89]
Overall, Australia's performance in the area of children's rights is nothing of which to be ashamed. Aspects of many children's experience are positive, and most children do not live in the sort of poverty and destitution that many of the world's children do. However, the situation for Australia's children is far from perfect. One profile of the current situation is as follows:
Australia is now among the world leaders in the way it looks after its young people. Our financial support services for families with dependent children, in education, health and child care, and the importance of recreation in a general climate of encouragement for young people, are embedded in social institutions. There are, however, dark patches here and there in a generally sunny landscape. Some groups of children and some individuals, even in otherwise well-served groups, lose out.[90]
Special attention needs to be given to the position of indigenous children and children from non-English speaking backgrounds; children with disabilities; children within the juvenile justice system; and children dependent on social security. These groups are systematically disadvantaged, and are treated in a manner which is clearly inconsistent with the terms of CROC.
The report of the Inquiry by the Joint Standing Committee on Treaties made 49 recommendations to Commonwealth Parliament with respect to CROC. The report accepts that significant work needs to be done to improve the position of children in many areas, in particular the protection of the rights of indigenous and ethnic children to cultural identity; the right of all children to basic health and social security provisions where applicable (especially indigenous children); greater inclusion of children in decisions that affect their welfare; the right to a stable home environment; and the right to confidentiality in circumstances of child abuse. However, the report stresses that the central aim of protecting the rights of children needs to be balanced against the rights of parents who are still central to the well being and guidance of their children. Like CROC itself, the report acknowledges the family as the fundamental unit of Australian society and the role of parents as central to the lives of their children. The report rejects the idea of the child as an autonomous rights-bearer. It insists that CROC is, and should be, implemented in such a way that the parents and the family unit are supported. This is, as has been shown, consistent with the terms of CROC. However, CROC itself, sees no inconsistency in allowing for rights to grow with the child, and for children to be rights-bearers despite their youth.
The report points out the need for further examination of the effects of CROC's implementation on legislative and administrative procedures affecting both Commonwealth and State/Territory governments by the relevant Commonwealth Joint Standing Committees. To facilitate this it recommends that an Office of the Child should be created within Parliament to work in tandem with Minister for Families.[91] The purpose of this office is to interact with other government ministries to safeguard the contents of CROC; to investigate government queries about children in legislation; and to work with the HREOC.
Chris Sidoti, in the submission for HREOC, commented that:
Full compliance with Australia's commitments in CROC is both realistic and attainable. Implementation of the standards of the Convention need not entail a large increase in government funding. Rather what is needed is national co-ordination with uniform national standards.[92]
However, what is also needed is widespread knowledge of CROC. Examination of the submissions made to the Inquiry demonstrate the fear generated, and the misinformation that feeds off that fear, when appropriate information is not disseminated widely enough. By far the majority of those members of the Australian community who were concerned enough about CROC to make submissions to a public inquiry (that is, two thirds of those making submissions) believe, despite the evidence, that CROC is unnecessary because Australian laws are already adequate; or believe that CROC should be abandoned because it interferes with parents' rights and is anti-family; or believe that CROC should be abandoned because it interferes with the Federal balance by imposing the will of the Commonwealth on the States; or believe that CROC interferes with Australia's sovereignty. The adherence to these myths suggests that there is a lack of community understanding about treaties and treaty-making in Australia and that there is a real, if unfounded, fear that CROC and the UN are all-powerful and that CROC has a potential that bears no relationship to the terms of the document or to the potential impact of treaties which have not been incorporated into Australian law.
This fear can only be addressed by a serious educational program targeted at children and adults in compliance with Article 42 of CROC. The report of the Inquiry recognised this, and the report calls for education in this area to be developed as a matter of urgency. In the Inquiry's view, the education of the community should provide details of CROC as a pro-parent and pro-family document, not one that gives children priority over parents. Article 42 of CROC would also require that programs should educate both adults and children about the rights of children as autonomous individuals, and about the need to mediate between the interests of parents and the rights of the child.[93] Educational programs need to be developed that include multicultural awareness and cultural sensitivity. There is a need for programs to be developed within schools -- within the curriculum -- and there is a need to provide training to teach teachers the terms of CROC. Further, there is a need for education to be directed at parents in order to teach them alternative parenting skills to avoid corporal punishment and other conflict within the family that may lead to action inconsistent with the terms of CROC.
Although Australia has power to implement the terms of CROC, in the First Periodic Report submitted by the Commonwealth government to the Committee on the Rights of the Child, Australia made it clear that it had no intention of doing so. The report stated:
Australia does not propose to implement CROC by enacting the Convention as domestic law. The general approach taken in Australia to human rights and other conventions is to ensure that domestic legislation, policies and practice comply with the convention prior to ratification.[94]
However, Australian law did not comply with the terms of CROC at the time of its ratification, nor does it now. The Commonwealth Joint Standing Committee's Inquiry demonstrated that an enormous amount of work needs to be done in providing the public with information about the terms of CROC and about the serious issues facing Australia's children that need to be addressed as a matter of urgency.
[*] Senior Lecturer, Faculty of Law, University of NSW. I would like to thank Julia Kosky and Radhika Withana-Arachchi for their work on this project. I would also like to thank the Law Foundation of NSW and the ARC Small Grants Scheme for supporting my research in this area.
[1] There are a number of reasons why the US has not ratified the CROC. These include the fact that in US law treaties have `law of the land' status: see Steiner H J and Alston P International Human Rights in Context (Clarendon Press, 1996) p 742.
[2] McGoldrick, D `The United Nations Convention on the Rights of the Child' (1991) 5 International Journal of Law and Family 138.
[3] Victorian Council of Civil Liberties, Submission 23 to the Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child (AGPS, 1998). See text at note 8, concerning this Inquiry.
[4] Van Beuren G The International Law on the Rights of the Child (Martinus Nijhoff, 1995). Van Beuren \t(p 6) notes that these four concerns reflect four different schools of children's rights theory, without giving priority to any one over the other -- `it is not a question of prevention and protection or participation, or of children's salvation or children's liberation: all are equally necessary when applied appropriately'.
[5] For an examination of the rights of children with disabilities under CROC see Jones M and Marks L `Beyond the Convention on the Rights of the Child: The Rights of Children with Disabilities in International Law' (1997) International Journal of Children's Rights; Jones M and Marks L `Differentiating between Children under the United Nations Convention on the Rights of the Child', Proceedings of the Fifth Annual Conference of the Australian and New Zealand Society of International Law (ANZSIL) \t(Centre of International and Public Law, 1997) p 249.
[6] Article 42 of CROC.
[7] Pritchard S `The Jurisprudence of Human Rights' [1995] AUJlHRights 2; [1995] 2(1) Australian Journal of Human Rights 3, 33.
[8] Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child (AGPS, 1998).
[9] Ibid p xv.
[10] Submission 220 to the Inquiry (above, note 8), Australian Council for Overseas Aid: `... community fears were at a height at the time of ratification in 1990. The national secretary of the Australian Family Association said that the Convention might create "little monsters, running around, quoting their rights and winning their court cases" (The Age, 12 January, 1990). There were protests in a Sydney town hall against the UN usurping the rights of parents and reports that the ratification of the Convention would result in "anti-spanking legislation". These fears were unfounded then, and they are now.'
[11] Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (Senate Printing, 1995).
[12] See, for example, Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Sterling Press, 1997).
[13] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.
[14] The Federal Government developed a National Program of Action to implement the World Declaration on the Survival, Protection and Development of Children. The first challenge set out in the Program of Action, Our Children, Our Future, released in 1994, is `to implement and monitor the Convention on the Rights of the Child'.
[15] Defence for Children International, Alternative Report to CROC Committee, 1996.
[16] This constitutes all the submissions contained in the first 13 volumes of submissions which were available for consultation up until December 1997. This can reasonably be presumed to be a representative sample of the total number of submissions to the Inquiry.
[17] Many of the anti-CROC submissions were in the form of a standard two-page letter, clearly emanating from one source. Many of these form letters were sent to the Committee from Queensland and northern NSW. While a number of the problematic responses were, no doubt, the result of the co-ordinated effort of a number of right-wing groups, these are nonetheless taken seriously in the formation of official public opinion. To the extent that these submissions represent deliberate misrepresentation and distortion of the truth rather than ignorance, it is essential that we understand their power. At the very least this suggests the importance of those with knowledge contributing to government human rights inquiries rather than leaving the case to be put by a small number of professional bodies.
[18] Submission 174, Australian Catholic Bishops Conference. Note that all references to `submissions' are to the submissions made to the Joint Standing Committee on Treaties, Inquiry into the Status of the UN Convention on the Rights of the Child (above, note 8) with the numbering of submissions being the numbering given to the submissions by the Inquiry.
[19] A number of other, minor myths, are expressed throughout the submissions. These include that the language of CROC is vague and ambiguous such that it is a `potential minefield' (submission 3); \tit is unclear as to who determines the `best interests of the child' (61), as a result `parents have \tno guarantee the Convention will be interpreted in a reasonable way, for example Article 14 may mean
parents can do little to protect their children from religious or political cults' (197) and that `some clauses have noble sentiments, but these are submerged by those that are dangerously vague or notable for what they don't say ... it will be a veritable mine-field in a court of law' (206). Further, it is believed that `the Convention itself could militate against some of it's objectives', for example the problem of paedophilia could be exacerbated by Article 15 giving freedom of association without parental control, and while Article 34 says that children are to be protected from participation in pornographic performances, Article 17 allows them to view it through the internet and magazines available at any newsagents. This Article also allows children to find out how to make bombs and drugs and form relationships with stranger' (119). Some concern was also expressed about HREOC which is seen to be `an incompetent body to enforce CROC because it operates outside traditional system of justice ... The commission can convict people of offences who have not had legal representation when facing and seeking to defend themselves against anonymously laid charges. This cannot happen in a court of law' (4). This is not to deny that there are potential problems of interpretation of CROC, or that HREOC is/was above criticism. It is, rather, that the context in which these views were expressed suggests that they are misguided criticisms rather than based on serious analysis.
[20] See, for example, submission 85, Council for the National Interest: Western Australia Committee.
[21] Submission 128, Peirson Adolescent Support Service.
[22] Submission 129, Salt Shakers: A Christian Ethics Action Group.
[23] Submission 159, Mr Greg and Ms Rose King.
[24] Submission 160, John Plunkett Centre for Ethics in Health Care.
[25] Submission 225, Mr Bruce and Mrs H Mitchell.
[26] Submission 7a, Mr R L Swift.
[27] Submission 395, R F Sherlock.
[28] See, for example, Ryan K (ed) International Law in Australia second ed, (LBC, 1984).
[29] Koowarta v Bjelke-Peterson (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1.
[30] Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261.
[31] Twomey A `Treaty making and implementation in Australia' (1996) 7 Public Law Review 4. Jus cogens refers to a peremptory norm of international law from which no derogation is permitted (see Article 53 Vienna Convention on Law of Treaties 1969). For a discussion of the limits of external affairs power see Rothwell D `The High Court and the External Affairs Power: Consideration of its Inner and Outer Limits' [1993] AdelLawRw 9; (1993) 15 Adelaide Law Review 209.
[32] See Parliamentary Debates, House of Representatives, Thursday 2 May 1996 at 231.
[33] See note 11.
[34] Balkin R, `Making Decisions in Accordance with International Treaties' paper presented to AIC Conference on Administrative Law and Ethics, 25 November 1997. See also Williams D `Treaties and the Parliamentary Process' (1996) 7 Public Law Review 199-204.
[35] Balkin R, above, note 34, at 8.
[36] This is discussed below -- see for example, text at note 47.
[37] Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1.
[38] See, for example Mabo v Queensland (No 2) (1992) 175 CLR 1 and Dietrich v R (1992) 117 CLR 292.
[39] Kirby M, `The Australian use of International Human Rights Norms: From Bangalore to Balliol -- a View from the Antipodes' (1993) 16 UNSW Law Journal. See also Kirby J's comments in Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 661 (excluding citation): `the Court [should not] adopt an interpretative principle as a means of introducing, by the backdoor, provisions of international treaties or other international law concerning fundamental rights not yet incorporated into Australian domestic law. However, as has been recognised by this Court and by other courts of high authority, the inter-relationship of national and international law, including in relation to fundamental rights, is "undergoing evolution". To adapt what Brennan J said in Mabo v Queensland [No 2], the common law, and constitutional law, do not necessarily conform with international law. However, international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia's Constitution, as the fundamental law of government in this country, accommodates itself to international law, including insofar as that law expresses basic rights.
The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. It also speaks to the international community as the basic law of the Australian nation which is a member of that community.'
[40] Above, note 13.
[41] See the `Joint Statement' by the then Minister of Foreign Affairs and the then Attorney-General of 19 May 1995 and of the current Minister of Foreign Affairs and the current Attorney-General of 25 February 1997; `the Report' by the Senate Legal and Constitutional Committee -- Administrative Decisions (International Instruments) Bill 1995; and the Administrative Decisions (International Instruments) Bill 1997.
[42] Mason CJ and Deane J, above, note 13, at 287.
[43] Submission 8, Endeavour Forum.
[44] Submission 24, Family Council of Victoria.
[45] Submission 138, Festival of Light.
[46] Consider, for example, the controversy surrounding the Franklin Dams case (Commonwealth v Tasmania (1983) 158 CLR 1).
[47] Submission 336, Mr Chris Sidoti, Human Rights Commissioner, HREOC.
[48] For example, the Preamble to CROC states: `... convinced that the family, as the fundamental group of society and the natural environment for growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community'.
[49] On the issue of the family not always being a safe haven see McGillivray A `Reconstructing Child Abuse: Western Definition and Non-Western Experience' in Freeman M and Veerman P The Ideologies of Children's Rights (Martinus Nijhoff, 1992) p 213.
[50] Submission 104, Mr David Allen.
[51] Submission 33, Mr Tony Shaw.
[52] Submission 160, John Plunkett, Centre for Ethics in Health Care.
[53] Submission 29, Mrs S J Kuchel.
[54] Submission 68, Mr A R Moulton.
[55] Submission 9, National Party of Australia, Craigslea Branch, Queensland.
[56] Submission 68, Mr A R Moulton.
[57] Submission 113, Australian Family Association, ACT.
[58] Submission 343, Mr N and Mrs E Clarke.
[59] Submission 128, Peirson Adolescent Support Service.
[60] Submission 3a, Mr C Francis.
[61] Submission 138, Festival of Light.
[62] Submission 119, Mrs Debra Hausmann-Akui.
[63] Submission 128, Peirson Adolescent Support Service.
[64] Submission 218, Mr L T Grieve.
[65] Submission 175, Mr DC and Mrs HL Keen.
[66] Submission 70, Australian Family Association, Tasmania.
[67] Submission 321, National Children's and Youth Law Centre.
[68] Submission 168, Department of the Premier and Cabinet, Tasmania.
[69] Submission 20, Country Women's Association of Western Australia.
[70] Submission 230, Cooloola Ratepayers and Residents Association.
[71] Submission 351, Mr A Griggs.
[72] Submission 227, Ms Tina Dolgopol, Action for Children, School of Law, Flinders University. Of the 18 industrialised nations surveyed by UNICEF, Australia is second behind the US as having the worst child poverty.
[73] HREOC/ALRC Speaking for Ourselves: Children & the Legal Process Issues Paper, 18 March 1996.
[74] See submission 135, World Vision; and submission 336, HREOC.
[75] Submission 227, Action for Children.
[76] World Vision (submission 135) cite the figures as up to 100 times more frequently; HREOC state that the incidence is 10 times higher (submission 336). One suspects the truth is somewhere in between.
[77] Submission 135, World Vision.
[78] Submission 135 cited by World Vision.
[79] Submission 336, HREOC. In June 1996 Queensland indigenous children were 41 times more likely than non-indigenous children to be in custody; Western Australian indigenous children were 32 times more likely; NSW indigenous children were 21 times more likely.
[80] Australian Royal Commission into Aboriginal Deaths in Custody, National Report: Overview and Recommendations by Commissioners Elliott Johnston (AGPS, 1991).
[81] See above, note 12.
[82] The Reservation/Declaration by Australia to Article 37 reads: `Australia accepts the general principles of Article 37. In relation to the second sentence of para (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by Article 37 (c).'
[83] The Children (Parental Responsibility) Act 1994 (NSW), which was re-enacted in the Children (Protection & Parental Responsibility) Act 1997 (NSW), allows police in `operational areas' to remove children under 15 years old not under the supervision of an adult from any public place.
[84] Juvenile Justice Amendment Act (No 2) 1996 (NT): mandatory imprisonment of young people found guilty of more than one property offence no matter how minor.
[85] Criminal Code Amendment Act (No 2) 1996 (WA) s 5 : mandatory detention of at least 12 months for young people found guilty of three or more burglary offences.
[86] Submission 91, Jones M and Marks L.
[87] Flynn C Disability Discrimination in Education (NCYLC, 1996).
[88] Secretary, Department of Health and Community Services v JWB & SMB [1992] HCA 15; (1992) 175 CLR 218.
[89] Brady S and Grover S The Sterilisation of Girls and Young Women in Australia: A Legal, Medical and Social Context (HREOC, 1997).
[90] Boss P, Edwards S and Pitman S Profile of Young Australians (Livingstone, 1995) p xix.
[91] A range of proposals of this nature were made to the Committee. These included proposals for the creation of an Office of Children, a Children's Commissioner or Ombudsman; the creation of a joint Ministerial Council on Children's Rights; and the monitoring of the rights of the child through parliamentary scrutiny committees.
[92] Submission 336, HEROC.
[93] See Jones M and Marks LAB `Mediating Rights: Parents, Children and the State' [1996] AUJlHRights 11; (1996) 2 (2) Australian Journal of Human Rights 313-327.
[94] Commonwealth of Australia Australia's Report under the Convention on the Rights of the Child (AGPS, 1996) p 2.
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