UN Convention on the Rights of the Child

The United Nations Convention on the Rights of the Child (1989) (“Convention”) is a human rights treaty that sets out children’s civil, political economic, social, health and cultural rights (“rights” are things that every child should have or be able to do). A “child” is defined as a human being under 18 years old. The Convention came into effect on 2 September 1991.

Some of the rights set out in the Convention include:

Article 3: All organisations concerned with children should work towards what is best for each child.

Article 12: Children have the right to say what they think should happen when adults are making decisions that affect them and to have their opinions taken into account. In particular, a child has a right to be heard in any judicial or administrative proceeding affecting themself.

Article 13: Children have the right to get and to share information, as long as the information is not damaging to them or to others.

Article 14: Children have the right to think and believe what they want and to practice their religion, as long as they are not stopping other people from enjoying their rights.

Article 15: Children have the right to meet with other children and young people and to join groups and organisations, as long as this does not stop other people from enjoying their rights.

Article 16: Children have the right to privacy.

Article 19: Governments should ensure that children are properly cared for and protect them from violence, abuse and neglect by their parents, and anyone else who looks after them.

Article 40: Childen who are accused of breaking the law have the right to benefit from all aspects of the due process of the law, including legal or other assistance in preparing their defence.

(Source: www.unicef.org.au)

To read the Convention in full, see www.unicef.org.au/crc.

Australia is a signatory to the Convention, which means Australia has a duty to ensure that all children in Australia have the rights set out in the Convention. However, the Convention has not been legislated into Australian law. Also, 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 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 & Ethnic Affairs v Teoh [1995] HCA 20, the High Court held that Australia being a signatory to the Convention led to the assumption that, unless the government stated otherwise, its departments’ decisions would comply with the Convention. In the Teoh 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 the provisions (i.e. the articles) of an international treaty that are not incorporated in legislation can not be applied to decision-makers. This leaves the effectiveness of the Convention somewhat unclear.