CROC in Australia
When did Australia sign the Convention and its Optional Protocols?
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.
The Optional Protocol on the Involvement of Children in Armed Conflict entered into force on 12 February 2002, and Australia ratified it on 26 September 2006.
The Optional Protocol on the Sale of Children, Child Prostitution and Pornography entered into force on 18 January 2002 and Australia ratified it on 8 January 2007.
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 to 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 regularly report to the UN Committee on the Rights of the Child on progress made in ensuring children enjoy in practice the rights given to them under the Convention: Article 44
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. This creates a complex situation, given that the majority of the policy areas in question fall under the jurisdiction of the Australian States and Territories, which form a complex system of legislation and policies impacting children.
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) allowing it to place children deprived of their liberty in cells or institutions in which there are adults present. The Concluding Observations of the Committee on the Rights of the Child on Australia’s combined second and third report in 2005 stated that the Committee was of the view that Australia’s reservation was unnecessary and should be withdrawn.
When Australia ratified the Optional Protocol on the Involvement of Children in armed conflict, it entered a declaration that it would continue to observe a minimum voluntary recruitment age of 17 years
 Joint Standing Committee on Treaties, ‘17th Report on the United Nations Convention on the Rights of the Child’ The Parliament of the Commonwealth of Australia, August 1998 <http://www.aph.gov.au/house/committee/jsct/reports/report17/rept17ex.pdf> at 30 September 2010.