UN Convention on the Rights of the Child

Australia is a signatory to the United Nations’ Convention on the Rights of the Child (“the Convention”), which came into effect on 2 September 1991. A child is defined as a human being under 18 years. The Convention sets out a number of children’s rights and a nation’s obligations in respect of those rights. The convention includes the following provisions (in summary).

1 A state (i.e. nation) has an obligation to protect children from any form of discrimination (Article 2).

2 Any action concerning a child should take into full account their best interests (Article 3).

3 A child has a right to express an opinion and have that opinion taken into account in any matter or procedure affecting themself. In particular, a child has a right to be heard in any judicial or administrative proceeding affecting themself (Article 12).

4 A child has a right to freedom of expression (Article 13).

5 A child has a right to freedom of thought, conscience and religion (Article 14).

6 A child has a right to freedom of association, unless such freedom violates the rights of others (Article 15).

7 A child has a right to protection of privacy (Article 16).

8 A state has an obligation to protect children from all forms of maltreatment (Article 19).

9 A state has special obligations in respect of children without families (Article 20), refugee children (Article 22) and children with disabilities (Article 23).

10 A child has a right to benefit from social security (Article 26).

11 A child alleged to have committed an offence has the right to benefit from all aspects of the due process of the law, including legal or other assistance in preparing their defence (Article 40).

While the convention has been ratified by Australia, it has not been legislated into domestic law. There are no readily available domestic or international sanctions or remedies for breaches of the convention. The Australian Human Rights Commission can monitor compliance with the Convention and make recommendations, but its powers are limited.

However, judges are starting to use Australia’s obligations under international conventions to support their decisions in some cases (e.g. Justice Brennan’s decision in Mabo v Queensland (No 2) [1992] HCA 23).

In the case of Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20, the High Court held that the ratification of the Convention led to the assumption that, unless the government stated otherwise, its departments’ decisions would comply with the Convention’s provisions. In that case, an immigration review officer should, therefore, have treated the interests of a child as a primary consideration.

Unfortunately, the federal government has subsequently stated that it is not legitimate that the provisions of a treaty not incorporated in legislation be applied by decision-makers. This leaves the effectiveness of the Convention somewhat unclear.