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Jones, Melinda --- "Myths and Facts Concerning the Convention on the Rights of the Child in Australia" [1999] AUJlHRights 28; (1999) 5(2) Australian Journal of Human Rights 126

[*] Senior Lecturer, Faculty of Law, University of NSW. I would like to thank Julia Kosky and Radhika Withana-Arachchi for their work on this project. I would also like to thank the Law Foundation of NSW and the ARC Small Grants Scheme for supporting my research in this area.

[1] There are a number of reasons why the US has not ratified the CROC. These include the fact that in US law treaties have `law of the land' status: see Steiner H J and Alston P International Human Rights in Context (Clarendon Press, 1996) p 742.

[2] McGoldrick, D `The United Nations Convention on the Rights of the Child' (1991) 5 International Journal of Law and Family 138.

[3] Victorian Council of Civil Liberties, Submission 23 to the Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child (AGPS, 1998). See text at note 8, concerning this Inquiry.

[4] Van Beuren G The International Law on the Rights of the Child (Martinus Nijhoff, 1995). Van Beuren \t(p 6) notes that these four concerns reflect four different schools of children's rights theory, without giving priority to any one over the other -- `it is not a question of prevention and protection or participation, or of children's salvation or children's liberation: all are equally necessary when applied appropriately'.

[5] For an examination of the rights of children with disabilities under CROC see Jones M and Marks L `Beyond the Convention on the Rights of the Child: The Rights of Children with Disabilities in International Law' (1997) International Journal of Children's Rights; Jones M and Marks L `Differentiating between Children under the United Nations Convention on the Rights of the Child', Proceedings of the Fifth Annual Conference of the Australian and New Zealand Society of International Law (ANZSIL) \t(Centre of International and Public Law, 1997) p 249.

[6] Article 42 of CROC.

[7] Pritchard S `The Jurisprudence of Human Rights' [1995] AUJlHRights 2; [1995] 2(1) Australian Journal of Human Rights 3, 33.

[8] Joint Standing Committee on Treaties, United Nations Convention on the Rights of the Child (AGPS, 1998).

[9] Ibid p xv.

[10] Submission 220 to the Inquiry (above, note 8), Australian Council for Overseas Aid: `... community fears were at a height at the time of ratification in 1990. The national secretary of the Australian Family Association said that the Convention might create "little monsters, running around, quoting their rights and winning their court cases" (The Age, 12 January, 1990). There were protests in a Sydney town hall against the UN usurping the rights of parents and reports that the ratification of the Convention would result in "anti-spanking legislation". These fears were unfounded then, and they are now.'

[11] Senate Legal and Constitutional References Committee, Trick or Treaty? Commonwealth Power to Make and Implement Treaties (Senate Printing, 1995).

[12] See, for example, Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Sterling Press, 1997).

[13] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273.

[14] The Federal Government developed a National Program of Action to implement the World Declaration on the Survival, Protection and Development of Children. The first challenge set out in the Program of Action, Our Children, Our Future, released in 1994, is `to implement and monitor the Convention on the Rights of the Child'.

[15] Defence for Children International, Alternative Report to CROC Committee, 1996.

[16] This constitutes all the submissions contained in the first 13 volumes of submissions which were available for consultation up until December 1997. This can reasonably be presumed to be a representative sample of the total number of submissions to the Inquiry.

[17] Many of the anti-CROC submissions were in the form of a standard two-page letter, clearly emanating from one source. Many of these form letters were sent to the Committee from Queensland and northern NSW. While a number of the problematic responses were, no doubt, the result of the co-ordinated effort of a number of right-wing groups, these are nonetheless taken seriously in the formation of official public opinion. To the extent that these submissions represent deliberate misrepresentation and distortion of the truth rather than ignorance, it is essential that we understand their power. At the very least this suggests the importance of those with knowledge contributing to government human rights inquiries rather than leaving the case to be put by a small number of professional bodies.

[18] Submission 174, Australian Catholic Bishops Conference. Note that all references to `submissions' are to the submissions made to the Joint Standing Committee on Treaties, Inquiry into the Status of the UN Convention on the Rights of the Child (above, note 8) with the numbering of submissions being the numbering given to the submissions by the Inquiry.

[19] A number of other, minor myths, are expressed throughout the submissions. These include that the language of CROC is vague and ambiguous such that it is a `potential minefield' (submission 3); \tit is unclear as to who determines the `best interests of the child' (61), as a result `parents have \tno guarantee the Convention will be interpreted in a reasonable way, for example Article 14 may mean

parents can do little to protect their children from religious or political cults' (197) and that `some clauses have noble sentiments, but these are submerged by those that are dangerously vague or notable for what they don't say ... it will be a veritable mine-field in a court of law' (206). Further, it is believed that `the Convention itself could militate against some of it's objectives', for example the problem of paedophilia could be exacerbated by Article 15 giving freedom of association without parental control, and while Article 34 says that children are to be protected from participation in pornographic performances, Article 17 allows them to view it through the internet and magazines available at any newsagents. This Article also allows children to find out how to make bombs and drugs and form relationships with stranger' (119). Some concern was also expressed about HREOC which is seen to be `an incompetent body to enforce CROC because it operates outside traditional system of justice ... The commission can convict people of offences who have not had legal representation when facing and seeking to defend themselves against anonymously laid charges. This cannot happen in a court of law' (4). This is not to deny that there are potential problems of interpretation of CROC, or that HREOC is/was above criticism. It is, rather, that the context in which these views were expressed suggests that they are misguided criticisms rather than based on serious analysis.

[20] See, for example, submission 85, Council for the National Interest: Western Australia Committee.

[21] Submission 128, Peirson Adolescent Support Service.

[22] Submission 129, Salt Shakers: A Christian Ethics Action Group.

[23] Submission 159, Mr Greg and Ms Rose King.

[24] Submission 160, John Plunkett Centre for Ethics in Health Care.

[25] Submission 225, Mr Bruce and Mrs H Mitchell.

[26] Submission 7a, Mr R L Swift.

[27] Submission 395, R F Sherlock.

[28] See, for example, Ryan K (ed) International Law in Australia second ed, (LBC, 1984).

[29] Koowarta v Bjelke-Peterson (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1.

[30] Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261.

[31] Twomey A `Treaty making and implementation in Australia' (1996) 7 Public Law Review 4. Jus cogens refers to a peremptory norm of international law from which no derogation is permitted (see Article 53 Vienna Convention on Law of Treaties 1969). For a discussion of the limits of external affairs power see Rothwell D `The High Court and the External Affairs Power: Consideration of its Inner and Outer Limits' [1993] AdelLawRw 9; (1993) 15 Adelaide Law Review 209.

[32] See Parliamentary Debates, House of Representatives, Thursday 2 May 1996 at 231.

[33] See note 11.

[34] Balkin R, `Making Decisions in Accordance with International Treaties' paper presented to AIC Conference on Administrative Law and Ethics, 25 November 1997. See also Williams D `Treaties and the Parliamentary Process' (1996) 7 Public Law Review 199-204.

[35] Balkin R, above, note 34, at 8.

[36] This is discussed below -- see for example, text at note 47.

[37] Lim v Minister for Immigration and Ethnic Affairs (1992) 176 CLR 1.

[38] See, for example Mabo v Queensland (No 2) (1992) 175 CLR 1 and Dietrich v R (1992) 117 CLR 292.

[39] Kirby M, `The Australian use of International Human Rights Norms: From Bangalore to Balliol -- a View from the Antipodes' (1993) 16 UNSW Law Journal. See also Kirby J's comments in Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 661 (excluding citation): `the Court [should not] adopt an interpretative principle as a means of introducing, by the backdoor, provisions of international treaties or other international law concerning fundamental rights not yet incorporated into Australian domestic law. However, as has been recognised by this Court and by other courts of high authority, the inter-relationship of national and international law, including in relation to fundamental rights, is "undergoing evolution". To adapt what Brennan J said in Mabo v Queensland [No 2], the common law, and constitutional law, do not necessarily conform with international law. However, international law is a legitimate and important influence on the development of the common law and constitutional law, especially when international law declares the existence of universal and fundamental rights. To the full extent that its text permits, Australia's Constitution, as the fundamental law of government in this country, accommodates itself to international law, including insofar as that law expresses basic rights.

The reason for this is that the Constitution not only speaks to the people of Australia who made it and accept it for their governance. It also speaks to the international community as the basic law of the Australian nation which is a member of that community.'

[40] Above, note 13.

[41] See the `Joint Statement' by the then Minister of Foreign Affairs and the then Attorney-General of 19 May 1995 and of the current Minister of Foreign Affairs and the current Attorney-General of 25 February 1997; `the Report' by the Senate Legal and Constitutional Committee -- Administrative Decisions (International Instruments) Bill 1995; and the Administrative Decisions (International Instruments) Bill 1997.

[42] Mason CJ and Deane J, above, note 13, at 287.

[43] Submission 8, Endeavour Forum.

[44] Submission 24, Family Council of Victoria.

[45] Submission 138, Festival of Light.

[46] Consider, for example, the controversy surrounding the Franklin Dams case (Commonwealth v Tasmania (1983) 158 CLR 1).

[47] Submission 336, Mr Chris Sidoti, Human Rights Commissioner, HREOC.

[48] For example, the Preamble to CROC states: `... convinced that the family, as the fundamental group of society and the natural environment for growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community'.

[49] On the issue of the family not always being a safe haven see McGillivray A `Reconstructing Child Abuse: Western Definition and Non-Western Experience' in Freeman M and Veerman P The Ideologies of Children's Rights (Martinus Nijhoff, 1992) p 213.

[50] Submission 104, Mr David Allen.

[51] Submission 33, Mr Tony Shaw.

[52] Submission 160, John Plunkett, Centre for Ethics in Health Care.

[53] Submission 29, Mrs S J Kuchel.

[54] Submission 68, Mr A R Moulton.

[55] Submission 9, National Party of Australia, Craigslea Branch, Queensland.

[56] Submission 68, Mr A R Moulton.

[57] Submission 113, Australian Family Association, ACT.

[58] Submission 343, Mr N and Mrs E Clarke.

[59] Submission 128, Peirson Adolescent Support Service.

[60] Submission 3a, Mr C Francis.

[61] Submission 138, Festival of Light.

[62] Submission 119, Mrs Debra Hausmann-Akui.

[63] Submission 128, Peirson Adolescent Support Service.

[64] Submission 218, Mr L T Grieve.

[65] Submission 175, Mr DC and Mrs HL Keen.

[66] Submission 70, Australian Family Association, Tasmania.

[67] Submission 321, National Children's and Youth Law Centre.

[68] Submission 168, Department of the Premier and Cabinet, Tasmania.

[69] Submission 20, Country Women's Association of Western Australia.

[70] Submission 230, Cooloola Ratepayers and Residents Association.

[71] Submission 351, Mr A Griggs.

[72] Submission 227, Ms Tina Dolgopol, Action for Children, School of Law, Flinders University. Of the 18 industrialised nations surveyed by UNICEF, Australia is second behind the US as having the worst child poverty.

[73] HREOC/ALRC Speaking for Ourselves: Children & the Legal Process Issues Paper, 18 March 1996.

[74] See submission 135, World Vision; and submission 336, HREOC.

[75] Submission 227, Action for Children.

[76] World Vision (submission 135) cite the figures as up to 100 times more frequently; HREOC state that the incidence is 10 times higher (submission 336). One suspects the truth is somewhere in between.

[77] Submission 135, World Vision.

[78] Submission 135 cited by World Vision.

[79] Submission 336, HREOC. In June 1996 Queensland indigenous children were 41 times more likely than non-indigenous children to be in custody; Western Australian indigenous children were 32 times more likely; NSW indigenous children were 21 times more likely.

[80] Australian Royal Commission into Aboriginal Deaths in Custody, National Report: Overview and Recommendations by Commissioners Elliott Johnston (AGPS, 1991).

[81] See above, note 12.

[82] The Reservation/Declaration by Australia to Article 37 reads: `Australia accepts the general principles of Article 37. In relation to the second sentence of para (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by Article 37 (c).'

[83] The Children (Parental Responsibility) Act 1994 (NSW), which was re-enacted in the Children (Protection & Parental Responsibility) Act 1997 (NSW), allows police in `operational areas' to remove children under 15 years old not under the supervision of an adult from any public place.

[84] Juvenile Justice Amendment Act (No 2) 1996 (NT): mandatory imprisonment of young people found guilty of more than one property offence no matter how minor.

[85] Criminal Code Amendment Act (No 2) 1996 (WA) s 5 : mandatory detention of at least 12 months for young people found guilty of three or more burglary offences.

[86] Submission 91, Jones M and Marks L.

[87] Flynn C Disability Discrimination in Education (NCYLC, 1996).

[88] Secretary, Department of Health and Community Services v JWB & SMB [1992] HCA 15; (1992) 175 CLR 218.

[89] Brady S and Grover S The Sterilisation of Girls and Young Women in Australia: A Legal, Medical and Social Context (HREOC, 1997).

[90] Boss P, Edwards S and Pitman S Profile of Young Australians (Livingstone, 1995) p xix.

[91] A range of proposals of this nature were made to the Committee. These included proposals for the creation of an Office of Children, a Children's Commissioner or Ombudsman; the creation of a joint Ministerial Council on Children's Rights; and the monitoring of the rights of the child through parliamentary scrutiny committees.

[92] Submission 336, HEROC.

[93] See Jones M and Marks LAB `Mediating Rights: Parents, Children and the State' [1996] AUJlHRights 11; (1996) 2 (2) Australian Journal of Human Rights 313-327.

[94] Commonwealth of Australia Australia's Report under the Convention on the Rights of the Child (AGPS, 1996) p 2.