This article first appeared in Article 13 (Law and Policy Journal of the National Children's and Youth Law Centre), issn 1447 - 2651, December 2002.
CROC is about rights
Rights mean little if they cannot be enforced
Obligations assumed by Australian government under international law
Reviewing existing laws and regulations
Reviewing and monitoring new laws
Reviewing and monitoring government policies
Preparation of a global children's policy and plan of action
Incorporate the rights of CROC into domestic legislation
CROC and policy decisions
How policy makers can promote CROC
CROC and the courts
How lawyers can promote CROC
How non-government organisations can promote CROC

CROC is about rights

The United Nations Convention on the Rights of the Child (CROC) gives children (anyone under 18 years) a comprehensive set of rights. The idea that children have rights is still foreign to many adults. This is hardly surprising because they are likely to have grown up in an era when children were expected to 'do as they were told' and to 'be seen and not heard'.

This view of children as being under the control of their parents, carers and teachers was reflected un laws which can be traced back to Roman Law and which were summarised by a judge in Victorian England: 'Children are under the authority and control of their parents until they reach adulthood'. Teachers were seen as acting in place of parents and they acquired parental powers of discipline and control over children in school.

It was only in the 1980s that two landmark events swept aside the notion of children being under the control and authority of adults.

The first was the Gillick case decided in England in 1985 which decided that children are not, in the eyes of the law, incompetent and powerless beings. The highest Court in England decided that children are entitled in law to make decisions in matters which affect them if they are able to understand the implications of the decision and to weigh up the risks and benefits that are likely to flow from it. Gillick recognises that children vary in their intellectual development and maturity and that they are able to make many decisions about their own lives. The Courts have pointed out that just because a parent or teacher might make a different decision does not mean that the child lacks the capacity to decide the matter.

The second landmark was the adoption by the General Assembly of the United Nations of the Convention on the Rights of the Child which bestowed on children the same civil rights and liberties that adults enjoy while recognising the role of parents to provide support and guidance for children.

Rights mean little if they cannot be enforced

A right is of little value unless there is some means of enforcing that right.. There is no machinery in CROC which allows an Australian child to go to an international court or tribunal and obtain an order forcing governments or individuals to deliver the rights granted by the Convention.

This does not mean that CROC is a toothless crocodile and that the rights set out in its 54 Articles are a dead letter. CROC has the potential to give Australian children enforceable rights.

Obligations assumed by Australian government under international law

In ratifying CROC, the Australian government in 1991 entered into an agreement with the United Nations and with all other parties to CROC. That agreement places an obligation on Australian governments to implement the rights in CROC by taking all necessary legislative, administrative and other measures: Article 4. This agreement is binding on Australia in international law.

In practice Australia is required under CROC to:

  • Review all existing laws and regulations to ensure that they comply with the rights set out in CROC and to repeal or pass amendments to any laws that are non-compliant
  • Review all policies at Commonwealth, State and Territory and Local Government level to check that they conform with CROC and to review and amend any policies that fail to comply
  • Develop systems for reviewing and monitoring new laws and policies to make sure that they do not breach CROC
  • Prepare and implement a global policy and plan of action based on the rights set out in CROC
  • Incorporate the rights in CROC into Australian Commonwealth State and Territory law.
Australia has not performed well in meeting these obligations

Reviewing existing laws and regulations

 Before ratifying CROC, the Commonwealth government wrote to each Australian State and Territory asking them to review their laws and to identify any areas of non-compliance with the principles of CROC. While the results of these reviews have not been published it is obvious that they were quite minimal. The United Nations did not expect every country to achieve full compliance before ratification. The Convention requires ratifying countries to move progressively towards full compliance.

There has been no attempt by Commonwealth or State and Territory governments to review all legislation with a view to documenting any areas of non-compliance and proposing repeal or amendment of existing laws or passing of new laws to achieve compliance.

Reviewing and monitoring new laws

No State or Territory has set up a process for systematically reviewing draft Bills, Bills and draft Regulations to ensure that they do not breach the rights set out in CROC. In Victoria all new Bills are scrutinised by a Scrutiny of Bills Committee which considers whether new Bills breach Australia's international human rights obligations and this Committee publishes regular reports.

In Queensland, New South Wales and Tasmania, where Commissioners for Children have been appointed, the Commissioners do keep an eye on new laws but only in New South Wales is this listed as a statutory functions and there there is no reference to CROC.

Stand-out examples of areas where Australian law does not comply with CROC include:

  • Education law: No education legislation in Australia gives children a right to government-provided education nor any of the other rights set out in Articles 28 and 29 of CROC.and no education law requires that schools provide opportunities for students to be involved in school decision-making as required by Article 12. Scotland enacted in 2002 a Standards in Scotland's Schools Act which in s1 gives all children of school age a right to state-provided education and in s2 sets out CROC principles in Art.29 (aims of education) and Art 12 (student involvement in decision-making).
  • Adoption law: Adoption laws in no Australian State or Territory (other than New South Wales) establishe the principle that the best interests of the child are the paramount consideration as required by Article 21 of CROC. Adoption legislation (other than in New South Wales) fails to provide mechanisms for children to be fully informed (Art. 13) and for the views of the child to be ascertained and taken into account. (Art. 12).
  • Corporal punishment: Parental physical punishment of children (including hitting with stick, strap or other implement) is permitted in all States and Territories despite the warning given to Australia in 1997 by the Committee on the Rights of the Child that such practices breach Article 19 of CROC. Corporal punishment in schools is not prohibited by law in any State or Territory (other than New South Wales, **) although it may breach education department policy in government schools in some States.

Reviewing and monitoring government policies

 Government policy making tends to be driven by political concerns and the rights of children are often overlooked. There is no system for appraisal of government policies at Commonwealth, State, Territory or Local Government level to assess their compliance with CROC. None of the three Commissioners for Children has a statutory responsibility to review and monitor government policies. In contrast, the New Zealand Commissioner for Children Bill, likely to be passed into law early in 2003, includes the full text of CROC in a Schedule and gives the Commissioner a statutory responsibility to monitor the observance of the principles of CROC by government departments.

There are glaring examples of polices which breach the principles of CROC:

  • Children in detention centres: Children of asylum seekers compulsorily detained in immigration detention centres are held in conditions which are sometimes inhuman and degrading and detrimental to their development and welfare. They are also denied access to information and appropriate education in breach of CROC.
  • Children's participation in public life: Children are denied opportunities available to adults to participate in public life and to enjoy public facilities. There has been no review of the laws which deny under-18s the right to vote and to stand for office. Children are through a variety of laws and policies denied the opportunity to enjoy the use of public space and public facilities. While all States and Territories have age discrimination laws these do to apply to government entities and they are not well known to or used by children.
  • Lower pay for equal work: Legal and policy provisions in each State and Territory allow for junior rates and deny children equal pay for equal work. Children are sometimes disadvantaged too by health and safety in employment legislation and practices.
There are examples of good practice.

In 2000 the Premier of New South Wales issued a directive to government agencies that they review their policies to ensure that children and young people should be involved in decision-making.

Some governments (notably South Australia, Western Australia, Australian Capital Territory and Northern Territory) and government agencies have developed or are developing youth policies. While these are to be welcomed they often only apply to children in the 12 to 17 age bracket and do not always have significant youth involvement and do not always take into account the different cultural perspective of indigenous children and young people.

Preparation of a global children's policy and plan of action

CROC is an international document which accords to children a set of fundamental rights. It is for Australian governments to translate the rights in CROC into a practical reality for Australian children.

The United Nations Committee on the Rights of the Child, in its comments on Australia's first report emphasised the need for an overall policy and plan of action aimed at delivering to children the rights given to them in CROC. Without this it is impossible to measure progress because laws and policies will be developed in an ad hoc manner. The Committee's General Guidelines) state that each country's reports should contain information on 'the plans envisaged to improve further the realisation of the rights of the child'.

No overall policy or plan of action in relation to children and the implementation of the rights in CROC has been developed by Commonwealth, State or Territory.governments. The appointment of a Federal Minister of Children and Youth Affairs in 2002 is a step forward but the Minister has no specific functions in relation to CROC.

Incorporate the rights of CROC into domestic legislation

Unlike the United States, Canada and New Zealand, Australia does not have human rights principles written into a Constitution, Charter of Rights or Bill of Rights. There are few examples of international human rights principles being given force under domestic law through incorporation into Acts of Parliament.

The most effective means of implementing CROC would be to incorporate its principles into Australian domestic law at both Commonwealth and State and Territory level and to provide some mechanism for resolving complaints that the Convention has been breached. Although it is 12 years since Australia ratified CROC no thought seems to have been given to means by which the Convention could be enshrined in Commonwealth or State or Territory law.

Some progress has been made in integrating the child participation principle in Article 12 of CROC into children's legislation. Section 10 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and s9 Adoption Act 2000 (NSW) give statutory force to Article 12 as well as practical guidance in how the views of children can be best ascertained and given effect to. Section 12(2)(a) & (b) Children and Young Persons Act 1999 (ACT), s5(h) Child Protection Act 1999 (Qld) and s 4(3) Children's Protection Act 1993 (SA) also reflect Art. 12 in one form or another. While these small steps forward deserve congratulation it is fair to say that in most areas of law and policy affecting children they are rarely consulted.

CROC and policy decisions

The principles of CROC binding on Australia as part of international law but not binding on the Courts as part of domestic law. This creates a curious situation.

The Australian government's ratification of CROC in 1991 is a statement to the international community that the Commonwealth recognised and accepted the principles of the Convention. The government has not resiled from its support for CROC by entering reservations or by denouncing (opting out of ) the Convention. The High Court of Australia held in Teoh that children and parents, whose interests might be affected by decisions and actions of the Federal government had a legitimate expectation that such actions and decisions would comply with the principles of CROC.

This does not mean that government officials are bound to apply CROC. It does mean that where they have a discretion they must give thought to the principles of CROC before making a decision. It is not clear whether this rule applies only to Federal government officials or to officials in State and Territory government agencies.

How policy makers can promote CROC

  • Become familiar with the principles of CROC and the interpretations of the Committee on the Rights of the Child: see Implementation Handbook for the Convention on the Rights of the Child UNICEF 1998.
  • Look to CROC principles for guidance when exercising a discretion or trying to resolve an ambiguity in laws or policies.
  • Press for the establishment of a Minister for Children and a Commissioner for Children in your State or Territory and argue the case for the Minister or Commissioner having a statutory responsibility to review existing legislation and monitor new legislation to ensure its compatibility with CROC.

CROC and the courts

 Where CROC principles are inconsistent with the provisions of an Act or an established common law principle, CROC must give way to Australian law. But this does not mean that ratification has no relevance to decision-making by courts and tribunals. The decision of the High Court of Australia in Teoh and later decisions indicate that:
  • Where the meaning of a statute, regulation or common law principle is ambiguous, the courts will favour a construction which accords with Australia's obligations under CROC.
  • If a statutory provision gives the court or some other decision-maker a discretion the court or other decision-maker should exercise that discretion in a way which conforms with the principles of CROC.
  • CROC can be used by the courts as a legitimate guide in the development of the common law (i.e. judge-made law).

How lawyers can promote CROC

 Lawyers can promote CROC by:
  • Using arguments based on the Convention where relevant in proceedings affecting children.
  • When representing children ensuring that the views of the child are put before the court or tribunal in a clear and persuasive manner and making sure that their child clients are treated respectfully and are fully informed about the issues and the processes by which decisions are made.
  • When acting for children ensure that their confidentiality and privacy are fully respected except in the rare situation that breach of confidentiality is necessary to prevent an imminent threat to the child's health or safety.

How non-government organisations can promote CROC

 CROC was ratified by the Australian government. It is the view of the Committee on the Rights of the Child that, in a country with a federal system of government, ratification binds not only federal government but also state governments.

CROC cannot be binding on non-government organisations. Australian NGOs have, in general, embraced CROC with greater enthusiasm than some government agencies.

Non government agencies can express their support for CROC in a number of ways:

  • Incorporating CROC (or selected Articles of CROC) into their constitution, Articles of Association, Code of Ethics, practice manuals or other basic documents
  • Using CROC as a benchmark in developing polices and practice standards for the organisation
  • Including in their letterhead, leaflets, journals annual reports etc. a statement that the organisation supports the principles in CROC and that these principles underpin the work of the organisation
  • Referring to CROC in any submissions or comments made on new legislation, new policies or proposed new initiatives affecting children
  • Implementing the child participation principle in Art 12 by setting up a children's and young person's reference group within the organisation or discussing with children and young people how they might have an input into decision-making at agency level
  • Pressing Commonwealth and State governments to incorporate CROC into domestic law and to make greater efforts to achieve compliance with CROC
  • Consulting with local youth advocacy groups and youth peak bodies on a regular basis to share ideas and gain a youth perspective on issues
  • Running regular training courses for staff of the agency on the principles of CROC and how they can be integrated into agency practice