What is CROC?
What is new about CROC?
Where did the idea of a Children's Convention come from?
Who wrote CROC?
What age group does CROC apply to?
When did Australia sign the Convention?
What is required of the Australian government after ratification?
Which levels of government are bound by the Convention?
Is CROC binding on non-government organisations?
Is ratification of CROC a guarantee that Australia is fully compliant at the time of ratification?
What reservations Australia entered about CROC?
Can a country back out of its commitment to CROC?
Is it true that the Convention is anti-family and sets children against parents?
Does the Convention give children full control over their own destiny?
Has Australia met its reporting obligations under CROC?
What is CROC?
CROC is a human rights document developed through the United Nations and passed by the UN General assembly in November 1989. It contains 54 separate Articles, of which 39 are state-specific rights and 15 are machinery provisions. The machinery provisions deal with the interpretation of the Articles and the obligations undertaken by ratifying countries in relation to the spread of information, reporting and translation etc.
What is new about CROC?
CROC is not the first United Nations Convention to deal with children’s rights. The Geneva Declaration on the Rights of the Child was written in 1924 and the Declaration on the Rights of the Child was drafted in 1959. The 1959 Declaration (like the 1924 Declaration) was a short document. It contained only ten principles, most of which were taken from the earlier Universal Declaration of Human Rights of 1948. The 1959 Declaration included the important principle 'Mankind owes the child the best it has to give' in its preamble.
A Convention is different from a Declaration in that individual countries can choose to sign a Convention. This gives it some force in international law and some status within the country concerned. Article 12 is probably the most original Article in CROC, as it gives children the right to express their views freely in all matters that affect them and to have their views considered by the decision-maker. The earlier declarations on children’s rights focused on children’s wellbeing. CROC therefore represents a major shift towards children having their own rights.
Where did the idea of a Children's Convention come from?
A Children's Convention was suggested during the International Year of the Child in 1976.
Who wrote CROC?
It is sometimes wrongly suggested that CROC was written by faceless people within the large administration of the United nations. CROC was written by a group which met every three years, for more than a decade, to debate the rights to be given to children by the Convention. All countries represented at the United Nations were allowed to join in the working group sessions. Australia was an energetic contributor to these debates, with former Chief Human Rights and Equal Opportunity Commissioner, Brian Burdekin, playing a big part. Where people could not agree on the wording of a particular Article, smaller groups were created to try to come to an agreed wording. Australia chaired some of these smaller working groups. If agreement on complicated issues was impossible, a vote was taken.
What age group does CROC apply to?
'Child' is defined in Article 1 of CROC as 'every human being below the age of 18 years'. Therefore, according to the Convention, a person stops being a child on his or her 18th birthday. There was significant debate during the Convention’s development, whether the rights (including the right to life in Article 16) should apply to unborn children. The Preamble notes the need for protection for the child 'before and after birth, but Article 1 does not say whether an unborn child falls within the definition of a 'human being.' The Committee on the Rights of the Child has said that countries that allow abortion do not have to doubt their committment to the Convention because of this. However, the Committee has commented negatively about countries that have a high rate of abortion or use abortion as a form of family planning.
When did Australia sign the Convention?
The Convention only came into force on 2 September 1990 when 20 countries had officially signed it. Australia was one of the first countries to become a party to CROC after it came into force, in December 1990 and it became binding on Australia in January 1991.
What is required of the Australian government after it signed CROC?
When Australia signed CROC, it accepted a number of obligations including:
- To make CROC widely known in Australia by both children and adults: Article 42
- To make sure the rights in the CROC are available to every Australian child: Article 2(1)
- To take all appropriate measures to put the rights in CROC into practice: Article 4
- To report to the UN Committee on the Rights of the Child regularly on progress made in upholding children's rights in CROC.
Which levels of government are bound by the Convention?
The Commonwealth government signed CROC after the Australian States and Territories agreed to this. Under the Australian Constitution, the Commonwealth government has responsiblity for international matters.
State and Territory governments are bound by CROC. Yet, there is doubt as to how much the Federal government (which is responsible to the Unitd Ntaions as the signatory to CROC) can force states and territories to obey the requiremnets of CROC. The Federal government has limited power to overrule State and Territory laws. There is also doubt over whether the Convention applies to lower levels of government, such as local councils.
Is CROC binding on non-government organisations?
CROC does not apply to non-government organisations because they have not signed it. Governments can, and do, contract out some of their responsibilities towards children to non-government organisations. When they do this, they should make sure that the contract makes the NGO obey the principles of CROC.
Does signing CROC mean that Australia is fully compliant with CROC at the time of signing?
The signing of an international treaty is not a guarantee by the signing party that they are compliant with all the articles of CROC. Articles 2 and 4 of CROC make it clear that the obligation is to bring the signing country into a state of compliance. This means that Commonwealth and State and Territory governments must check existing laws, policies and government practices to see if there are any areas of non-compliance and to make any changes to bring the country into full compliance.
Prior to signing, the Commonwealth government asked State and Territory governments to see if there were any areas of non-compliance. This was to give the Commonwealth government the information it needed in deciding whether to enter reservations to the convention in these areas.
What reservations Australia entered about CROC?
Any country that wants to sign CROC may enter a reservation about particular principles of the Convention if they believe that they will not be able to comply with a particular Article of the Convention. The power to do this was meant to cover situations where a country could not follow through on the requirements of a particular Article. CROC itself states that no reservation that is unsuited to the aim and purpose of the Convention will be allowed: Article 51.2.
Countries sometimes enter reservations to CROC because their government does not agree with a particular principle. This is not a valid reason to enter a reservation because it goes against the aim and purpose of the Convention.
When Australia signed CROC, it entered a reservation about Article 37(c). This allowed Australia to place children in cells or places where there are adults. When the Committee on the Rights of the Child considers reports from countries, it asks to look at all the reservations the country has entered, with a view to try to remove them. Australia's first report to the Committee did not set out the reservations that Australia entered, nor did the report try to explain and justify the reasons for entering the reservations.
Can a country back out of its commitment to CROC?
Article 52 allows a country to cancel its commitment the Convention at any time by giving written notice to the UN Secretary-General. If such notice is given, the country will no longer be under a duty to obey and comply with the Convention after one year has passed.
Is it true that the Convention is anti-family and sets children against parents?
The Convention is often blamed for doing this, but by reading the convention as a whole, it clearly demonstrates that it is not anti-family, nor does it set children against their parents. Article 5 states that governments should respect the responsibilities, rights and duties of parents, carers and extended family members to provide direction and guidance in the exercise of the rights granted by the Convention. The role of parents is a lot more important with babies and young children than with young people in their mid or late teens. Article 18.2 requires government to give assistance to parents and carers of children.
Article 16, which establishes the child's right to freedom of thought, conscience and religion, again emphasises the importance of parental guidance. Article 9 gives children the right not to be separated from their parents, other than where it is in the child's best interests. Even when a child is separated from a parent, Article 9.2 gives the child a right to keep personal relations and contact with both parents.
Does the Convention give children full control over their own destiny?
It has been said that the Convention 'sacrifices children to their rights'; which suggests that the rights may damage their wellbeing. CROC contains a number of provisions aimed at protecting children from abuse, neglect or harmful influences (see Articles 19, 17, 23, 24, 25, 27, 32, 33, 34, 35, 36, 37 & 39).
The Convention does not give under-18s the power to make decisions about their own lives. In this way, the
Convention does not go nearly as far as the common law. The common law, in the House of Lords case of Gillick,
allows children to make their own decisions where they have reached a stage of maturity and understanding to allow
them to weigh the benefits and risks of a particular decision. Article 12 of CROC only gives under-18s the right
to express their views to the decision-maker and have those views considered.
Has Australia met its reporting obligations under CROC?
Australia has failed to meet its reporting duties under CROC. Australia's first report was due in January 1993 but was not handed in until December 1995. Australia's second report was due in January 1998 but has never been handed in. Australia's third report was due in January 2003. The government said that it intended to hand in a combined second and third report in 2003. As the government was very late in starting to work on developing its second and third reports, it was highly unlikely that the report would be ready on time. The failure to meet reporting duties, which is the main way to make sure that Australia is doing everything it is supposed to do under the Convention, means there has been no review of Australia's performance since Australia handed in its first report. However, Australia did manage to hand in its combined second and third report in March 2003.
Go to All About CROC part 2
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