What are our Obligations?
- The Convention on the Rights of the Child (CROC)
- The United Nations Declaration on the Rights of Indigenous People (UNDRIP)
- The Rights of Aboriginal and Torres Strait Islander Children
Australia has become party to a number of international human rights treaties and has also endorsed several declarations. Importantly for Aboriginal and Torres Strait Islander children, Australia:
- has agreed to be bound by the United Nations Convention on the Rights of the Child, 1990 (CROC) and
- has endorsed the United Nations Declaration on the Rights of Indigenous Peoples, 2007 (UNDRIP).
While the CROC and the UNDRIP will be the focus of these web pages, Australia is bound by other important human rights instruments, including:
- the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and
- the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
Many of the rights in these instruments overlap with, reinforce, and give detail to the rights protected under the CROC and the UNDRIP.
The CROC is a human rights treaty which sets out the civil, political, economic, social and cultural rights of people under the age of 18 years. For a summary of the CROC rights, see this UNICEF factsheet.
The CROC is a major development in the understanding of childhood. While children were once regarded as the property of their parents, the CROC emphasises that children have their own rights and entitlements and, because of their youth, also need extra protections.
The United Nations body responsible for monitoring compliance of countries who agree to be bound by the CROC is the Committee on the Rights of the Child.
The UNDRIP affirms the ‘minimum standards for the survival, dignity, and well-being’ of Indigenous peoples. The UNDRIP is a particularly important instrument because of the direct and prominent role played by Indigenous peoples in its development.
The UNDRIP does not carry the same legal consequences as the CROC because it is a declaration rather than a treaty. In contrast to treaties, declarations are not legally binding at international law. Declarations outline the principles that governments agree to work towards and carry political rather than legal weight.
Download a comprehensive definition of a declaration [PDF]. However, many provisions in the Declaration reflect obligations of the Australian government from other international treaties.
The Rights of Aboriginal and Torres Strait Islander Children
The CROC and the Declaration secure important rights for Aboriginal and Torres Strait Islander children. Among these rights are:
‘Rights such as access to education, adequate health care, employment, due process before the law, freedom of movement, and equality before the law target the very freedoms that an individual needs to be able to live with dignity. They are precious and they are inherent and should not be given merely at the benevolence of government.’ – Larissa Behrendt
The Right to Equality and Freedom from Discrimination
Aboriginal and Torres Strait Islander children are equal to all other Australian children and are entitled to enjoy their rights free from any kind of discrimination, including discrimination based on their Indigenous origin or identity (CROC – Article 2, the Declaration – Article 2).
This means that the Australian government must ensure that, among other things, Aboriginal and Torres Strait Islander children enjoy the same standard of nutrition, healthcare, education, and social services as non-Indigenous children.
The Right to Life and Health
Aboriginal and Torres Strait Islander children have the inherent right to life (CROC – Article 6 (1)). Our children also have the right, without discrimination, to a high standard of physical and mental health, and to facilities for the treatment of illness and the rehabilitation of health (CROC – Article 24 (1), the Declaration – Article 24(2)).
The Committee on the Rights of the Child has clarified in its statement on the rights of Indigenous children under the CROC (General Comment 11 ) that this means that governments party to the CROC have positive duties to combat malnutrition and infant, child, and maternal mortality, and to ensure that Indigenous children have equal access to health services.
This right also means that health services should, to the extent possible, be community based, culturally sensitive and administered with the cooperation of those involved. Information about these services should also be made available in Indigenous languages.
The Declaration also secures for Indigenous peoples rights to their traditional medicines and health practices (Article 24(1)). The Committee on the Rights of the Child asserts that health-care workers from Indigenous communities serve as an important bridge between traditional medicine and conventional medical services and that preference should be given to the employment of local Indigenous health workers in Indigenous communities.
The Right to Protection from Violence
Aboriginal and Torres Strait Islander children have the right to be protected from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of their parents or anyone else who looks after them (CROC – Article 19).
The Committee on the Rights of the Child has clarified that neglect includes, among other things:
- lack of supervision,
- a failure to provide the child with basic necessities including adequate food, shelter, clothing, and basic medical care, and
- psychological or emotional neglect, including a lack of emotional support and love and chronic inattention to the child.
Some examples of mental violence include, among other things:
- Insulting a child
- Humiliating or belittling a child, and
- exposing a child to domestic violence.
The Committee interprets physical violence as all uses of physical force to cause some degree of pain and discomfort, including smacking or spanking children with the hand or with an implement for the purposes of punishment. See the Committee’s discussion of this issue in its General Comment 13.
The Declaration reinforces this CROC right and provides that the special needs of children requires attention in the implementation of all provisions of the Declaration (Article 22). This means that the expression of other rights should not interfere with children’s fundamental rights, including their right to protection from violence.
The Best Interests Principle
The best interests of the child must be a primary consideration in all actions concerning children (CROC – Article 3(1)). This principle not only applies to government decisions but also to decisions by private social welfare institutions, including non-government organisations concerned with child welfare.
For example, the best interests of the child must be a primary consideration of the relevant Government department when deciding whether an Aboriginal or Torres Strait Islander child should be placed in out-of-home care and, if so, with whom the child should be placed.
The Committee on the Rights of the Child has emphasised that, where government authorities and social welfare institutions seek to assess the best interests of an Indigenous child, they should consider the child’s cultural rights and his or her need to exercise these rights collectively with his or her community. This means that the Indigenous community should be able to contribute to defining what are the best interests of Indigenous children in the development of all legislation, policies, and programmes that affect Indigenous children. See more on the best interests principle in the Committee’s General Comment No. 11 and this Australian Human Rights Commission brief.
Rights with Respect to Home Environment and Alternative Care
The CROC provides all children with various human rights with respect to their family situation and home life. These rights are important to Aboriginal and Torres Strait Islander children given that they are almost ten times more likely to be placed in out-of-home care than other Australian children.
- Support for Families
the Australian government must assist Aboriginal and Torres Strait Islander (and all other Australian) families in their child-rearing responsibilities. For example, the government must ensure that the institutions, services, and facilities responsible for the care or protection of children conform to established standards for safety, health, staff quality, and supervision (CROC – Article 3(3)). Children of working parents have the right to benefit from child-care services and facilities (CROC – Article 18(3)) and the government must also, within its means, provide material assistance and support programs where necessary, particularly with regard to nutrition, clothing, and housing (CROC – Article 27(3)).
- Separation from Parents
A child should not be separated from his or her parents against their will except where competent government authorities decide, in accordance with law, that it is in the best interests of the child (CROC – Article 9(1)). This may be necessary where a child has been abused or neglected by his or her parents.
- Out-of-Home Care
Where a child is to be removed from his or her home, the government must give adequate consideration to benefits of continuity in the child’s upbringing and the child’s ethnic, religious, cultural, and linguistic background (CROC – Article 20(3)).
In Australia, this provision is given force through the Aboriginal Child Placement Principle which directs the priority order for out-of-home care placements for Aboriginal and Torres Strait Islander children. The child should be placed: in the child’s extended family and kinship group; or if that is not possible, within the child’s local Indigenous community; and, failing that, with another Aboriginal and Torres Strait Islander family outside the community. Where none of these options are possible, the child may be put in non-Indigenous care.
If the child is placed in out-of-home care, the government has an obligation to ensure periodic review of the treatment and conditions the child experiences in the out-of-home care setting (CROC – Article 25).
The Right to Education
Aboriginal and Torres Strait Islander children have the right to a free primary school education (CROC – Article 28) of an equal standard to that enjoyed by other Australian children (the Declaration – Article 14 (2)).
Education should develop children’s personalities, talents and abilities to the fullest and should encourage them to respect others, human rights, the environment, and their own cultural identity, language, and values (CROC – Article 29).
The Government should also take effective measures in order for Aboriginal and Torres Strait Islander children to have access, when possible, to an education in their own culture and provided in their own language (the Declaration – Article 14(3)). This right is particularly important in remote communities where our children should have access to a bilingual education and learning resources in their own language.
The Right to be Heard and to Participate in Decision-Making
All children capable of forming their own views have the right to express those views freely in all matters affecting them, including court decisions and matters in school or alternative care settings (CROC – Article 12, the Declaration – Article 18). Their views should be given weight in accordance with their age and maturity. Children have the right to be heard and to have their views taken seriously.
Aboriginal and Torres Strait Islander peoples have the right to self-determination (the Declaration, Article 3). The Australian Human Rights Commission explains that this right means three key things for Aboriginal and Torres Strait Islander people:
- The right to have a choice in determining how their lives are governed;
- The right to participate in decisions affecting their lives; and
- The right to control over their lives and future, including their economic, social, and cultural development.
For more information on this important right, see:
The Right to Enjoy Culture, Language, and Spirituality
Our children have the rights to enjoy their own culture, to profess and practice their own religion, and to use their own language (CROC – Article 30).
The Declaration also supports these rights, including the rights to practice and revitalise cultural traditions and customs (Article 11) and to practice and develop spiritual and religious traditions, customs and ceremonies (Article 12). Our children should not be prevented from speaking traditional languages or practicing their culture or spirituality.
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