- Direct Rights Under Australian Law
- Indirect Rights Under Australian Law: The CROC’s Influence on Australian Decision-Making and Law-Making
- Australia’s Obligations Under International Law
- Availability of UN Complaint Mechanisms
- Political Activism
Direct Rights Under Australian Law
‘It is not enough that we are better than the worst offenders on a human rights report card; we should be the best society that we can be.’ – Larissa Behrendt
International treaties such as the CROC do not automatically form part of Australia’s law when the government becomes a party to them. For rights to be legally binding under Australian law, the Australian Parliament must include the provisions in Australian legislation.
While Australia has not taken specific measures to put the CROC into Australian legislation, some CROC rights are already a part of Australian law. These are capable of being upheld in state or federal courts. Examples include:
- The Right to Freedom from Discrimination: A range of federal Acts, including the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, and the Age Discrimination Act 2004 protect all Australian children from discrimination on the grounds of race, sex, disability and age.
- The Best Interests Principle: A determination of the best interests of the child is the key principle in most Australian, State and Territory legislation concerning children. For example, the Commonwealth Family Law Act 1975 requires the court to regard the best interests of the child as the paramount consideration when making parenting orders (section 60CA) and several other orders affecting children.
However, a number of CROC provisions are still inconsistent with Australia’s federal or State laws. For example, parental physical punishment of children is still permitted in all States and Territories, despite the fact that these practices breach Article 19 of CROC. While this means Australia is in breach of its international obligations, we cannot enforce these CROC rights here in Australia.
If you require advice as to whether a particular right under the CROC is protected under Australian law, you may find the information you need by visiting the Human Rights Law Centre Website or by contacting your local community legal centre.
Indirect Rights Under Australian Law: The CROC’s Influence on Australian Decision-Making and Law-Making
Even where the CROC provisions have not been translated into Australian law, the CROC still has influence on courts and members of the federal executive government (which includes the Prime Minister and Cabinet, Ministers, federal government Departments, the federal police). Our High Court has decided that:
- Development of the Common Law: The CROC may also be legitimately used by the courts to guide the development of the common law (i.e. the body of law developed by judges); and
- Interpretation of Legislation: Where the meaning of a statute, regulation, or common law principle is not clear, the courts should favour an interpretation that is consistent with Australia’s obligations under the CROC; and
- A Legitimate Expectation: Children and parents whose interests might be affected by decisions of the federal executive Government have a ‘legitimate expectation’ that such decisions and actions will comply with the CROC. So where a decision-maker intends to make a decision that is inconsistent with the CROC, he or she must give notice to the people who will be affected and give them an adequate opportunity to argue why this decision should not be made. If this opportunity is not provided, the person may be able to challenge the decision in a tribunal or court (Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh  HCA 20).
Australia’s Obligations Under International Law
When the Australian government became a party to the CROC in 1991, it entered into an agreement with the United Nations and with all other parties to CROC. This agreement, which is binding and enforceable at international law, obliges Australia to implement the rights in CROC by taking all necessary legislative, administrative, and other measures (Article 4). This means that Australia is required to:
- Review its laws and regulations to ensure that they comply with the CROC rights and to repeal or make amendments to any inconsistent laws;
- Review all Commonwealth, state and local government policies to check that they conform with CROC and to amend inconsistent policies;
- Develop systems for reviewing new laws and policies for compliance with the CROC;
- Prepare and implement a policy and plan of action for the rights set out in CROC;
- Incorporate the rights into Australian Commonwealth State and Territory law.
In reality, Australia has not complied with all of these obligations, but has not been held to account at international law.
Availability of UN Complaint Mechanisms
Some treaties have complaint mechanisms which allow you to complain to an international body if your government has breached one of your rights under an international treaty it has signed up to. These complaint mechanisms are only available if you have exhausted all options under Australian law. Decisions made by the relevant international bodies are not legally binding on countries but put pressure on them to reassess their practices and remedy rights violations.
While CROC does not have its own individual complaint mechanism in force at the moment, a draft mechanism is well on the way towards being adopted by the UN. If Australia agrees to be bound by this complaints mechanism, Australian children and their representatives will be able to bring complaints about violations of their rights before the Committee of the Rights of the Child. See the The NGO Group for the Convention on the Rights of the Child website for an update on these developments.
In the meantime, some of the CROC rights overlap with the rights children enjoy under other treaties that Australia is party to that have complaint mechanisms currently in force, such as:
- the International Covenant on Civil and Political Rights (ICCPR) and
- the Convention on the Elimination of All Forms of Racial Discrimination (CERD).
For example, the CROC right to freedom of expression (Article 13) is also protected under the ICCPR (Article 19) and so it may be possible to use the ICCPR complaint mechanism where there is a breach of this right.
For more information on treaty complaint mechanisms, see:
- Australian Government Attorney General’s Department ‘Complaints Mechanisms Under Human Rights Treaties’
- The Office of the United Nations High Commissioner for Human Rights – ‘Frequently Asked Questions About Treaty Body Complaints Procedures’
As Declarations do not have the same legal implications of treaties, the above options for enforcing CROC rights do not apply to the Declaration, which has political force.
In any case, legal enforceability is only one part of human rights accountability. Political pressure and activism are the most common means through which governments are encouraged to respect, protect, and fulfil human rights. For example, within the UN, there are other bodies that encourage and put pressure on Governments to comply with human rights. Many of these are situated within the Human Rights Council, which is an inter-governmental body within the UN system made up of 47 States responsible for strengthening the promotion and protection of human rights around the globe.
These special bodies and procedures include:
- Special Rapporteurs:
A Special Rapporteur is an independent expert appointed by the UN Human Rights Council to examine, monitor, research, report and advise on either particular human rights issues or particular countries. On reports of human rights violations, Special Rapporteurs may request governments to investigate and address the violations or may request to visit the country. Special Rapporteurs also make public reports to the UN Human Rights Council on issues within their area of focus.
In contrast to the complaints mechanisms outlined above, urgent requests for action by the Special Rapporteur are usually dealt with quickly and do not require the individual to have exhausted all options under Australian law first. However, such actions usually remain confidential between the state and the Special Rapporteur and the individual complainant may not even be informed of the outcome of the actions taken.
- Reporting Obligations:
When a country becomes party to an international treaty, it must submit regular reports to the treaty’s UN monitoring body. This provides an opportunity to record, monitor, and evaluate the country’s progress towards fulfilling its human rights obligations, draws international attention to human rights concerns, and creates dialogue between the relevant country’s government and the UN.
Australia’s commitment to the CROC includes reporting to the UN Committee on the Rights of the Child once every five years. The CROC provides that this report should provide detailed information about:
- what Australia is doing to protect and promote CROC rights;
- the progress made in protecting and promoting those rights; and
- the obstacles and problems encountered in implementing the CROC.
Non-government organisations also play a strong role in informing the Committee on the Rights of the Child of pressing human issues impacting Australian children.
In May 2012, the Committee on the Rights of the Child will review Australia’s compliance with the CROC. See the Recent and Current Issues page for more information.
- United Nations Periodic Review Process: Another political mechanism that encourages government accountability is the Universal Periodic Review (UPR) process. The UPR is a new process of the UN Human Rights Council whereby the human rights records of all 192 UN member states are reviewed once every four years. Australia’s human rights record was recently reviewed under the UPR process.
- The Expert Mechanism on the Rights of Indigenous Peoples (EMRIP): The EMRIP was established by the Human Rights Council in 2007 to provide the Council with advice, in the form of studies and research, on the rights of Indigenous peoples. The EMRIP, which is made up of five independent experts on the rights of Indigenous peoples, holds an annual session for discussion by states, Indigenous peoples, Indigenous organisations, inter-governmental organisations and researchers.
SNAICC Human Rights Resources
Aboriginal and Torres Strait Islander Child Rights Report Card (2012) – SNAICC/NATSILS – [REPORT]
23 Aug 2012
Child Rights Education Kit – Child Rights Educator’s Guide – SNAICC 2013 [Resource]
4 Sep 2013
Children’s Rights Fact Sheet 2010
31 Dec 2010
National Aboriginal and Islander Children’s Day (NAICD) Poster 2013 – SNAICC [POSTER] – Back Page
27 May 2013
National Aboriginal and Islander Children’s Day (NAICD) Poster 2013 – SNAICC [POSTER] – Front Page
29 May 2013
Our Children Our Dreaming 2013 – The Healing Foundation, QATICCP, AbSec and SNAICC – [DISCUSSION PAPER]
25 Jun 2013
SNAICC Submission – Royal Commission into Child Sexual Abuse – November 2012
28 Nov 2012
SNAICC Submission to the Australian Human Rights Commission National Children’s Commissioner’s examination of intentional self-harm and suicidal behaviour in children – June 2014
30 Jun 2014
Safe For Our Kids – A guide to family violence response and prevention for Aboriginal and Torres Strait Islander children and families – SNAICC 2014
30 Jun 2014