This article first appeared in Article 13 (Law and Policy Journal of the National Children's and Youth Law Centre), issn 1447 - 2651, September 2002.
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 has Australia entered to 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 under the auspices of 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 latter deal with interpretation, and the obligations undertaken by ratifying countries in respect of dissemination of information, reporting and translation etc.
What is new about CROC?
CROC is not the first United Nations Convention to speak of the rights of children. There was a Geneva Declaration on the Rights of the Child in 1924 and this was followed by a Declaration on the Rights of the Child proclaimed by the General Assembly of the UN in November 1959. The 1959 Declaration (like its earlier counterpart) was a short document containing only ten principles, most of which were adapted from the earlier Universal Declaration of Human Rights of 1948. The 1959 Declaration included in its Preamble the notable principle 'Mankind owes the child the best it has to give'.
A Convention differs from a Declaration in that individual countries can choose to ratify a Convention giving it some force in international law and some status within the country concerned. Arguably, Article 12 is the most innovative provision included 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 of Children's Rights had a welfare focus. CROC thus represents a major shift towards children having autonomous rights.
Where did the idea of a Children's Convention come from?
The proposal for a Children's Convention was mooted during the International Year of the Child in 1976.
Who wrote CROC?
It is sometimes erroneously suggested that CROC was written by faceless people within the vast bureaucracy of the United Nations. CROC was drafted by a working group which met every three years, for more than a decade, to debate the rights to be conferred on children by the Convention. All countries represented at the United Nations were entitled to participate 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 an active part. Where delegates could not agree on the wording of a particular Article, smaller groups were established to try to come to an agreed wording. Australia chaired some of these smaller working groups. If consensus on controversial issues proved impossible, a vote was taken. The final session of the working group was marked by angry exchanges between delegates pressing a particular point of view. The issues of intercountry adoption and the age at which children might serve in the military forces provoked fiery debate.
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'. For Convention purposes, a person ceases to be a child on his or her 18th birthday. There was considerable debate, during development, as to whether the rights (including the right to life in Article 16) should apply to the unborn child. The Preamble refers to the need for protection for the child 'before and after birth', but Article 1 gives no guidance whether an unborn child falls within the definition of a 'human being'. The Committee on the Rights of the Child has stated that countries which permit abortion do not have to enter reservations to the Convention in that respect. However, the Committee has commented adversely on countries which 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 lodged their formal document of ratification with the UN Secretary-General. Australia was one of the first countries to become a party to CROC after it came into force. The Australian government ratified the Convention in December 1990 and it became binding on Australia in January 1991.
What is required of the Australian government after ratification?
Ratification of CROC involves the acceptance of various obligations including:
- To make CROC, by appropriate and active means, widely known in Australia by both children and adults: Article 42
- To ensure the rights in the Convention are available to each Australian child: Article 2.1
- To take all appropriate legislative, administrative and other measures in order to implement the rights set out in the Convention: Article 4
- To report to the UN Committee on the Rights of the Child regularly on progress made in ensuring children enjoy in practice the rights given to them under the Convention.
Which levels of government are bound by the Convention?
The Commonwealth government ratified CROC after gaining approval of the Australian States and Territories. Under the Australian Constitution, the Commonwealth government has responsibility for international affairs.
State and Territory governments are bound by the Convention. There is doubt, however, as to the extent to which the Federal government (which is responsible to the United Nations as the signatory to CROC) can force States and Territories to comply with requirements of CROC.
The Federal government has limited power to override State and Territory legislation. There is also doubt over whether the Convention is binding on lower levels of government, such as local authorities.
Is CROC binding on non-government organisations?
CROC is not binding on non-government organisations because they have not ratified the Convention, and the Commonwealth government cannot bind them by signing international treaties such as CROC. Governments can, and do, contract out some of their responsibilities towards children to non-government organisations. When they do this, they should ensure that the terms of the agreement require the NGO in question to comply fully with the principles of CROC.
Is ratification of CROC a guarantee that Australia is fully compliant at the time of ratification?
Ratification of an international treaty is not an assurance by the ratifying party that a country is fully compliant. It is clear from Articles 2 and 4 of CROC that the obligation is to bring the ratifying country into a state of compliance. This means that Commonwealth and State and Territory governments must carry out an audit of existing laws, policies and administrative practices to identify any areas of non-compliance and to make any changes in laws, policies and procedures necessary to bring the country into full compliance.
Prior to ratification, the Commonwealth government did ask State and Territory governments to identify 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 has Australia entered to CROC?
Any country that wishes to ratify CROC may enter a reservation in respect of particular principles of the Convention. The power to enter a reservation was intended to cover situations in which it was outside the power of the ratifying country to meet the requirements of a particular Article. CROC itself states that no reservation that is incompatible with the object and purpose of the Convention will be permitted: Article 51.2.
Countries sometimes enter reservations to CROC because their government does not agree with a particular principle. This is not strictly grounds for a reservation because it is incompatible with the object and purpose of the Convention.
When Australia ratified CROC, it entered a reservation under Article 37(c) thus allowing it to place children deprived of their liberty in cells or institutions in which there are adults present. When the Committee on the Rights of the Child considers reports from countries, it asks to review all reservations with a view to withdrawing them. Australia's first report to the Committee does not set out the reservations Australia has entered, nor does it attempt to justify these reservations.
Can a country back out of its commitment to CROC?
Article 52 allows a country at any time to denounce the Convention by giving written notice to the UN Secretary-General. If such notice is given, the country ceases to be bound by the Convention after a period of one year.
Is it true that the Convention is anti-family and sets children against parents?
This is a common criticism of the Convention, but it is not demonstrated by reading the Convention as a whole. Article 5 states that governments shall 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. This is qualified by a reference to the child's evolving capacity. The role of parents is considerably more important with babies and young children than with young people in their mid or late teens. Article 18.2 requires government to provide appropriate assistance to parents and carers in the performance of their child-care responsibilities.
Article 16, which establishes the child's right to freedom of thought, conscience and religion, again stresses 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 grants the child a right to maintain 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'; the implication being that giving children rights may damage their welfare. 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 respect, the Convention does not go nearly as far as the common law as defined in the House of Lords case of Gillick. The common law 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 taken into account.
The argument that the Convention encourages children to make decisions which may harm them is demonstrably false.
Has Australia met its reporting obligations under CROC?
Australia has failed to meet its reporting obligations under CROC. Australia's first report was due in January 1993 but was not filed until December 1995. Australia's second report was due in January 1998 but has never been filed. Australia's third report is due in January 2003. The government has indicated that it intends to file a combined second and third report in March 2003. As the Commonwealth government was very late in starting the process of developing its second and third reports, it is highly unlikely that this time schedule will be met. The failure to meet the reporting obligations, which is the primary system for monitoring compliance with the Convention, means there has been no review of Australia's performance since the Committee considered Australia's first report.
Continue to All About CROC part 2
|
