Political responsibilities for children — international obligations


3.12 The federal Government signs, ratifies and implements international instruments.[19] It is responsible to the national and international communities for meeting the obligations embodied in those instruments it ratifies.[20] The Commonwealth generally depends on the States and Territories to implement international treaties where the obligations are within their areas of responsibility.[21]

3.13 Australia has ratified a number of human rights treaties that contain general provisions concerning children and their rights.[22] Australia is also committed to particular international children’s rights instruments covering guardianship, foster placement and adoption,[23] child abduction,[24] discrimination in education,[25] minimum employment age[26] and the employment of children in night work.[27] In addition, Australia is committed to two instruments concerning juvenile justice and related issues.[28]

3.14 However, the most comprehensive statement of Australian policy regarding children’s interests is our ratification ofCROC. CROC is broadly conceived, encompassing civil, political, economic, social and cultural rights for children as well as provisions regarding their care and protection. It also recognises their evolving rights to participate in legal and administrative processes. CROC was ratified by Australia on 17 December 1991.[29]

Obligations under CROC

3.15 CROC recognises that children, as members of the human family, have certain inalienable, fundamental human rights. It emphatically endorses the proposition that the family is the fundamental environment for the growth and well-being of children and states that, for the wellbeing of society, the family should be afforded protection and assistance so as to fully assume its responsibilities. At the same time, it recognises that children need special safeguards and care where the family does not or cannot assume these roles.[30]

3.16 A number of CROC provisions are particularly relevant to this Inquiry. Article 3 requires that the best interests of the child must be a primary consideration in all actions concerning a child whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies. Article 12 requires States Parties to

(1)…assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

(2) For this purpose, the child shall in particular be provided with the opportunity to be heard in any judicial and administrative proceedings affecting the child, whether directly or through a representative or an appropriate body, in a manner consistent with the procedural rules of the national law.

These articles provide base guidelines for children’s interactions with legal processes.

3.17 CROC obliges States Parties to ensure that their laws are consistent with its treaty provisions;[31] to set and monitor the operating standards of particular institutions dealing with children;[32] and to encourage the dissemination of appropriate and beneficial information to children.[33] CROC also obliges States Parties to promote children’s development and assist their engagement with legal processes. In particular, children in need of protection from their families or legal guardians,[34] children in alternative care,[35] child refugees,[36] juvenile offenders[37] and mentally or physically disabled children[38] are to receive special assurances and protections in their dealings with legal processes. Other CROC provisions relate to States Parties’ commitments to providing children, within their families, with an adequate standard of living[39] and with rights to social security[40] and education.[41]

3.18 These standards have not been created by CROC. CROC provides explicit recognition of the applicability to children of their previously existing inalienable rights. It does not limit the rights of parents or prescribe conditions on the relationship between parents and children. By ratifying CROC the Australian government has made a commitment to the children of Australia. This commitment is that in all aspects of children’s involvement in society they will be treated in accordance with their fundamental human rights entitlements.

Compliance with CROC

3.19 Despite government assertions of compliance with CROC,[42] several non-government reports have detailed significant breaches of its commitments on the part of federal, State and Territory governments.[43] While much Australian law satisfies the requirements of CROC, there are still significant areas of law and practice that do not conform with CROC. In fact, in some jurisdictions within Australia the Inquiry has found policies and laws that are in direct violation of Australia’s international obligations with respect to children.[44] This Report discusses and seeks to address some of the problems which lead to these failures.

CROC in Australian law

3.20 Australia has not incorporated CROC in its entirety into domestic law, and does not propose to do so. Its provisions are not directly enforceable in law. However, Australia has consistently asserted that the provisions of CROC are fully implemented in the wide range of federal, State and Territory laws, programs and policies affecting children.[45] Although CROC and other relevant international instruments on children are not directly enforceable in domestic law, there are two means by which ratified international treaties influence the development of Australian legal thought.

3.21 The first is a principle of statutory and common law interpretation. In the process of applying legislative provisions, the judiciary will presume, when faced with a number of equally valid interpretations and in the absence of any indication to the contrary, that the interpretation which conforms most fully with Australia’s relevant international treaty obligations should apply.[46] Australia’s international human rights obligations are considered to be of persuasive influence in the judicial interpretation and application of common law.[47]

3.22 The second is based on a principle established in Teoh.[48] A majority of the High Court in that case held that, by ratifying an international treaty, the Australian Government provided grounds for persons to have a legitimate expectation that, in the absence of any express provision to the contrary, the executive will act consistently with the treaty’s provisions.[49] Where this legitimate expectation is not met by the executive in government decision-making, judicial review is available. However, through Ministerial statements of 25 February 1997 and 10 May 1997 and in the proposed Administrative Decisions (Effect of International Instruments) Bill 1997, the federal Government has attempted to remove any legitimate expectations that may be based on ratification of international treaties such as CROC.

Implementing CROC

3.23 International treaties can be entered into by the Commonwealth without necessary reference to the state of domestic law. The practice of successive governments in Australia, however, has been to ensure that Australian law complies with a treaty’s obligations before it is ratified.[50] The effective implementation of this practice rests on two presumptions: first, that an assessment of the relative positions of domestic law and the treaty has been undertaken and the areas of conflict identified; and second, that any amendments to existing laws of the States, Territories or Commonwealth that are required to meet the treaty’s demands must be implemented before ratification.

3.24 Although in its 1995 Report to the UN Committee on CROC the federal Government explained that this was its practice, the Government did not claim that scrutiny of all relevant legislation took place before ratification of CROC; in fact none was undertaken. Therefore, the principal concern of Australian legislators should now be to ensure that domestic legislation complies with CROC. A comprehensive review of the conformity of the existing body of legislation with CROC would fulfil the pre-condition implicit in the current practice on treaty ratification, albeit several years after the task ought to have been done. This review should be undertaken as soon as possible by a federal Parliamentary standing committee.[51]

3.25 This process will undoubtedly reveal inconsistencies between domestic law and CROC. Where these inconsistencies are discovered in State or Territory legislation, the Commonwealth should encourage the amendment or repeal of the offending legislation. However, where clear and flagrant violations of international law are found and the relevant jurisdiction is not amenable to changing its practices, the Commonwealth should use its external affairs power to ensure that CROC’s obligations are complied with.[52] While this is a serious measure that should be used sparingly, the Inquiry has identified instances where the use of this power may be appropriate.[53]

3.26 As important as an initial general review of existing legislation is the establishment of a mechanism to scrutinise future legislation before enactment for compliance with CROC. One commentator has noted that compliance with CROC ‘…clearly represents an ongoing program, rather than being a once and for all “set and forget” instrument’.[54] There are, in each parliament in Australia, parlia-mentary committees already charged with the responsibility to scrutinise proposed and delegated legislation for compliance with a number of criteria, including broad human rights considerations. These are well placed to undertake this function. The terms of reference of each of these committees could be altered to include a direction that the committee ensure that all Bills and proposed delegated legislation coming before them comply with Australia’s commitments under CROC.[55]

[19] Constitution s 51(xxix).

[20] See Vienna Convention on the Law of Treaties (1969) art 26: ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’. The jurisdiction of the International Court of Justice to enforce international treaties is provided by the Statute of the International Court of Justice, art 38.

[21] However, in Australia’s first report on CROC released in December 1995 the federal Government acknowledged that it has a significant role to play in implementing the provisions of CROC. The report outlined a wide range of federal Government policies and programs in areas relevant to children and the legal process. They included social welfare programs, income support schemes, programs specifically for Indigenous children, legislation dealing with sexual exploitation of children, assistance for refugee children, and the federal Government’s Justice Statement which included funding for legal advice and advocacy for children and young people. The report also included information on several hundred pieces of federal, State and Territory legislation affecting children: Attorney-General’s Dept Australia’s Report under the Convention on the Rights of the Child Attorney-General’s Dept Canberra 1996.

[22] In addition to CROC, Australia has also ratified ICCPR, the Convention on the Elimination of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination Against Women. These provide rights to: equality, non-discrimination, fairness and privacy; freedoms of speech, movement, association and to found a family; protections against cruel and unusual punishment and unlawful detention. The International Covenant on Economic, Social and Cultural Rights and certain International Labour Organisation Conventions also provide for the protection and advancement of social welfare and work-related rights to health, education, safe employment conditions and an adequate standard of living.

[23] UN Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally 1986. The federal Government is currently negotiating with States and Territories regarding ratification of the Hague Convention on the Protection of Children and Co-operation in Respect of Intercountry Adoption: see para 9.76, rec 29.

[24] The Hague Convention on Civil Aspects of International Child Abduction.

[25] UN Educational, Scientific and Cultural Organisation Convention against Discrimination in Education 1960.

[26] International Labour Organisation Convention No 138 Concerning Minimum Age for Admission to Employment 1973.

[27] International Labour Organisation Conventions No 79 and No 90 on Night Work of Young Persons (Non-Industrial and Industrial Occupations), 1946 and 1948 respectively.

[28] These are the UN Standard Minimum Rules for the Administration of Juvenile Justice 1985 (the Beijing Rules) and the Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines).

[29] Australia has also committed itself to the World Declaration on the Survival, Protection and Development of Children 1990.

[30] preamble.

[31] art 4.

[32] art 3(3).

[33] arts 13, 17.

[34] arts 3(2), (3), 9(1), 19.

[35] arts 3(2), (3), 20, 25.

[36] art 22.

[37] arts 37, 40.

[38] art 23.

[39] arts 18, 27.

[40] art 26.

[41] arts 28, 29.

[42] Attorney-General’s Dept Australia’s Report under the Convention on the Rights of the Child Attorney-General’s Dept Canberra 1996, 2–3.

[43] eg M Hogan & E Fishwick Doing the Rights Thing Public Interest Advocacy Centre Sydney 1992; G Brewer & P Swain Where Rights are Wronged National Children’s Bureau of Australia Melbourne 1993; Defence for Children International Australia’s Promises to Children— The Alternative Report Defence for Children International Canberra 1996.

[44] See paras 19.63–64 for a discussion of two of these violations of international law –– the mandatory sentencing laws in WA and NT.

[45] Attorney-General’s Dept Australia’s Report under the Convention on the Rights of the Child Attorney-General’s Dept Canberra 1996, 2–3.

[46] Dietrich v R (1993) 177 CLR 292, 348–9 per Dawson J. See also Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, 362 per Mason CJ & Deane J.

[47] A Mason ‘The influence of international and transnational law on Australian municipal law’ (1996) 7 Public Law Review 1, 20.

[48] Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353.

[49] Minister for Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353, 365 per Mason CJ & Deane J.

[50] Dept of Foreign Affairs and Trade Negotiation, Conclusion and Implementation of International Treaties and Arrangements Dept of Foreign Affairs and Trade Canberra 1994 para 56; see also D Kinley ‘The implications of executive ratification of treaties for democratic governance’ in P Alston & M Chiam (eds) Treaty Making in Australia: Globalisation Versus Sovereignty? Federation Press Sydney 1995, 62–63.

[51] A federal parliamentary standing committee could either conduct a review of all federal, State and Territory legislation or it could undertake this function only with respect to federal legislation and receive reports from a separate body on State and Territory legislation. Rec 3 suggests the establishment of an Office for Children that could undertake this function.

[52] There is certainly precedent for the use of the external affairs power in this manner: eg the Human Rights (Sexual Conduct) Act 1995 (Cth) was a response to Tasmanian legislation that criminalised male homosexual sex.

[53] See para 19.64.

[54] B Burdekin ‘Transforming the Convention into Australian law and practice’ in P Alston & G Brennan (eds) The UN Children’s Convention and Australia HREOC, ANU Centre for International and Public Law & Australian Council of Social Service Canberra 1991, 7.

[55] The Joint Committee on Foreign Affairs, Defence and Trade recently recommended that a similar process be introduced for the two Senate legislative scrutiny committees, by amending their terms of reference to require them to examine the compliance of legislation with the specific terms of ICCPR and the International Covenant on Economic, Social and Cultural Rights: Joint Committee on Foreign Affairs, Defence and Trade A Review of Australia’s Efforts to Promote and Protect Human Rights Joint Committee on Foreign Affairs, Defence and Trade Canberra 1994, 53.