Has Australia met 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 was only filed as a combined second and third report in March 2003. Australia's third report was due in January 2003.Australia’s fourth report was due in January 2008, but was submitted on 25 June 2009.
Does CROC form part of Australia's domestic law either at Federal or State and Territory level?
The Commonwealth government has made a firm statement that it does not intend to implement CROC by enacting the Convention in domestic law. It has stated that its approach has been to ensure, prior to ratification, that domestic legislation, policies and practice comply with the Convention. However, CROC has been declared a relevant international instrument under the Human Rights and Equal Opportunity Act 1986 (Cth) and the Australian Human Rights Commission can refer to the Convention when considering complaints of discrimination. Further, under Ministerial Direction No. 41 CROC is also a primary consideration in deciding whether to refuse, cancel or grant a person a visa under the Migration Act 1958 (Cth).
The principles of CROC are binding on Australia as part of international law but not binding on the Courts as part of domestic law. This creates a curious situation. However, to a considerable extent the relevant obligations are incorporated into local laws, and as such they are enforceable and capable of being protected in the state or federal courts. The case of Teoh established 'that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law' and that 'an international convention may play a part in the development by the courts of the common law'. As such, although CROC has not been officially incorporated into Australia’s domestic law, it does retain some degree of influence on domestic policy.
Has Australia developed a comprehensive national strategy and plan of action for children as required by CROC?
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 and combined second and third reports 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'.
Apart from the National Agenda for Early Childhood and the National Framework for Protecting Australia’s Children 2009 - 2020, 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.
In 1997, The Australian Law Reform Commission published, “Seen and Heard: Priority for Children in the Legal Process”, a report documenting a two year enquiry examination of how children and young people were treated by the Australian legal system in light of Australia being a CROC signatory. This report remains the most comprehensive examination of young people and the legal system undertaken in Australia. It highlighted several serious problems, including discrimination against children and a consistent failure by the institutions of the legal process to consult with and listen to children in matters affecting them. In 2008 the Australian Law Reform published “Children and Young People”, a report written in the wake of the 10th anniversary of the Seen and Heard report, reviewing the current treatment of children and young people in the legal process. Many of the issues raised in the first report were found to be unresolved, and key issues discussed in this report include the rights and life chances of Indigenous children and the effectiveness of the legal process in protecting children and young people as consumers.
In its 2005 concluding observations of the Combined Second and Third Periodic Report by Australia, the Committee on the Rights of the Child recommended that Australia effectively develop and implement a National Plan of Action for children and that it also completes the development of the National agenda for Early Childhood.
Measures implemented by the Australian Government over the last decade include:
- the Australian Government has endorsed the Progress on the National Agenda for Early Childhood in December 2005. Subsequently, all state and territory governments have developed action plans including the area of early childhood education and care;
- National Framework for Protecting Australia’s Children 2009–2020; and
- the launch of Australia’s Human Rights Framework on 21 April 2010, including the introduction of the Human Rights (Parliamentary Scrutiny) Bill on 2 June 2010 and again on 30 September 2010.
The establishment of a national commissioner for children and young people is believed by many to be an essential step in establishing a national approach to the protection of children’s rights under CROC and the Australian Greens have recently introduced a Bill for the creation of the commissioner as an independent statutory office.
What concerns did the Committee on the Rights of the Child raise after considering Australia's Combined Second and Third report?
The Committee considered Australia’s Combined Second and Third report in 2005. The Committee’s concluding observations on Australia’s Combined Second and Third report expressed a number of concerns, such as the fact that:
- while the Convention may be considered and taken into account in order to assist courts to resolve uncertainties or ambiguities in the law, it cannot be used by the judiciary to override inconsistent provisions of domestic law;
- there is no comprehensive policy at the national level for children specifically addressing human rights issues that may impact on them;
- there is no commissioner within HREOC devoted specifically to child rights and that substantial cuts in its funding over the past 10 years have severely affected HREOC’s workforce and its ability to handle effectively individual complaints, public inquiries and policy work;
- indigenous children and other vulnerable groups continue to need considerable improvement in their standard of living, health and education;
- discriminatory attitudes and stigmatisation continue to exist, especially towards certain groups of children such as asylum-seeking children and children belonging to ethnic and/or national minorities, including Arabs and Muslims. In this respect, the Committee is also concerned at the possible side effects that the enforcement of the anti-terrorism legislation may have on certain groups of children;
- the views of the child are not always sufficiently taken into account in judicial and administrative proceedings affecting the child;
- corporal punishment in the home is lawful throughout Australia under the label “reasonable chastisement” and other similar provisions in states’ legislation;
- indigenous children are over-represented in out-of-home care;
- a considerable number of children have one parent in prison, and indigenous children are significantly over-represented in this group;
- some children are exposed to a high level of domestic violence;
- there is a disparity in health status between indigenous and non-indigenous children and there is unequal access to health care for children living in rural and remote areas and;
- youth suicide is still high, especially among indigenous children and homeless adolescents.
The full reports can be found via the Australian Human Rights Commission website: www.humanrights.gov.au.
The Committee is expected to consider Australia’s Fourth Report in early 2012.
 Joint Standing Committee on Treaties, ‘Australia’s Report under the Convention on the Rights of the Child’ The Parliament of the Commonwealth of Australia, December 1995, .
 Direction [no.41]-Visa refusal and cancellation under s 501 2009 (Cth), .
 Justice Wood, ‘ Overview of Australian Justice and Prison Systems’ (Speech delivered at the China-Australia Human Rights Technical Cooperation Programme: Workshop on Prisoners and Detainees: Xian China, May 2004).
<http://www.lawlink.nsw.gov.au/lawlink/Supreme_Court/ll_sc.nsf/pages/SCO_wood_0504> at 30 September 2010.
 Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh  HCA 20,  (Mason CJ and Deane J).
 Commonwealth Commissioner for Children and Young People Bill 2010 (Cth).