Australia’s commitment to children’s rights and reporting to the UN
This paper discusses the following questions:
- What is Australia’s commitment to protecting children’s rights?
- Why do children need a separate human rights treaty?
- What is the process for reporting to the UN about children’s rights?
- Does the reporting process force the Australian government to take action on children’s rights?
- Can the Commission force the government to take action on children’s rights?
- Can people complain to the UN about breaches of children’s rights in Australia?
- How else does the Commission engage with the UN on children’s rights?
1.1 The Convention on the Rights of the Child sets out children’s rights
In November 1989, the UN General Assembly adopted the Convention on the Rights of the Child (CRC). It is the most widely ratified human rights treaty in the world. There are only 2 countries which have not signed the CRC; the United States of America and Somalia.
Australia ratified the CRC in December 1990. This means that Australia has a duty to ensure that all children in Australia enjoy the rights set out in the treaty.
The CRC contains the full range of human rights – civil, cultural, economic, political and social rights.
Some of the core principles of the CRC are:
- the right of all children to survival and development;
- respect for the best interests of the child as a primary consideration in all decisions relating to children;
- the right of all children to express their views freely on all matters affecting them; and
- the right of all children to enjoy all the rights of the CRC without discrimination of any kind.
1.2 Australia must report on children’s rights to the UN
Part of Australia’s commitment to the CRC includes reporting to the UN about the state of children’s rights, every 5 years. The next report is due in January 2008.
The reporting process allows the UN to periodically monitor Australia’s commitment to promoting and protecting children’s rights. The reporting process provides an opportunity for developing better policies and planning for the promotion and realisation of children’s rights in Australia.
1.3 The Commission has an official role to protect children’s rights
Under the Human Rights and Equal Opportunity Commission Act 1986 (Cth), the Commission has an official role to protect and promote children’s rights.
At first, the Commission monitored the Declaration on the Rights of the Child, which was a short document outlining a set of 10 principles. In the late 1970s, a working group began preparing a more comprehensive set of children’s rights principles that became the CRC. The Commission was actively involved in those discussions through the contributions of former Human Rights Commissioner, Brian Burdekin.
After Australia ratified the CRC, the government made the CRC part of the Commission’s role. This does not make the CRC part of Australian domestic law, but it does give the Commission the power to refer to the CRC when considering complaints from children who complain their rights have been breached.
Importantly, the Commission also has the legal power to examine laws that may breach the CRC, conduct public inquiries into breaches of the CRC, provide policy advice, and promote public understanding of children’s rights in Australia.
The CRC incorporates the whole spectrum of human rights - civil, political, economic, social and cultural - and sets out the specific ways these rights should be ensured for children and young people. The CRC recognises that the degree to which children can exercise these rights independently is influenced by their evolving maturity. It also emphasises the rights and responsibilities of parents where applicable. Although children have their own treaty, they are still protected by the other human rights treaties.
3.1 The Australian government prepares a general report on children’s rights
The CRC states that every 5 years the Australian government should prepare a report with detailed information about:
- what it is doing to protect and promote the rights contained in the CRC;
- the progress that has been made in protecting and promoting those rights; and
- the obstacles and problems that have been encountered in implementing the CRC.
Usually the preparation of the report will be co-ordinated by the Attorney General’s Department (AGD). The state and territory governments and other relevant Australian government departments and agencies will also be consulted. The government usually seeks input from the community on its draft report. When the report is finalised the government will publish the report on the AGD’s website.
3.2 Australia’s report is reviewed by the UN Committee on the Rights of the Child
Australia’s report on children’s rights is submitted to the UN Committee on the Rights of the Child (the UN Committee). The UN Committee was established to monitor the implementation of the CRC. The UN Committee consists of representatives from several countries.
The UN Committee examines Australia’s report and makes recommendations and comments in the form of ‘concluding observations’. The UN Committee encourages Australia to do what it can to implement its recommendations as soon as possible.
The UN Committee can also issue ‘general comments’ or ‘general recommendations’. These comments are not specific to Australia, but rather provide guidance to all countries about the content of the CRC.
The concluding observations and general comments are publicly available documents. These documents provide guidance about what Australia needs to do to comply with its obligations under the CRC.
This process enables people to monitor how their government is observing human rights obligations set out in the CRC.
3.3 NGOs and community groups can prepare a ‘shadow’ report
The UN Committee can look at any information it considers is important when reviewing Australia’s record on children’s rights. This may include information from NGOs and community groups in the form of a ‘shadow’ report. Shadow reports generally provide an alternative view about the government’s performance on children’s rights.
Since Australia’s next report on the CRC is due in January 2008, there is already a taskforce preparing a shadow report. Over the coming months, the taskforce will be asking the public for their comments about the government’s performance on children’s rights. The Commission will put information about the public consultation process on our website at that time.
3.4 The Commission’s role in the reporting process
The Commission does not report to the UN Committee on behalf of the government. However, the government usually asks the Commission to provide comments on the government’s draft report. This is useful because the Commission can provide comments to the government before the report is finalised. However, the government does not have to include the Commission’s comments in its final report.
Sometimes the Commission submits additional comments directly to the UN. The Commission might also work with NGOs or community groups to assist them in preparing a shadow report or by providing information on children’s rights issues.
4.1 The UN can only make recommendations
The UN Committee cannot legally force the Australian government to implement its recommendations. However, the UN’s recommendations can provide guidance to the government about how to better protect children’s rights.
However, the information and recommendations in the UN Committee’s reports can also be a useful tool for Australian children’s rights advocates to influence government action.
4.2 The opportunity to revitalize discussion on children’s rights promotes accountability
The regularity of the reporting process and the ability for the Commission, NGOs and community groups to play a role in the process encourages ongoing discussion about children’s rights in Australia.
The process also creates a public record of Australia’s children’s rights performance. Usually the information provided to the UN Committee is made public. This means that the views of the government, the UN Committee, the Commission and community groups should be publicly available.
The information that is placed on the public record and the activities which surround the reporting process promotes government accountability for the implementation of the CRC in Australia.
The Commission does not have enforcement powers
The Commission cannot force the government to implement any recommendations made by the UN Committee or by the Commission itself. However, the Commission can engage in activities designed to encourage implementation of the CRC.
For example, the Commission’s National Inquiry into Children in Detention found that the mandatory detention of children for long periods of time breached the CRC. A year after the release of Inquiry report, the government changed the law to state that children could only be held in immigration detention as a last resort.
The UN Committee does not accept individual complaints under the CRC
Some treaties enable individuals to make complaints to the UN committee established to monitor that treaty. Any persons, including children, can bring individual complaints under these treaties.
For example, the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the Convention Against Torture and Cruel, Inhuman and Degrading Treatment or Punishment (CAT), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) all include individual complaints mechanisms.
The UN Committee can not consider individual complaints under the CRC.
The CRC itself does not have an individual complaints mechanism.
7.1 UN World Report on violence against children.
In 2006, the UN Secretary-General released a study on violence against children that found that girls and boys of all cultures, classes, education, income and ethnic origin suffer or witness violence every day in the very places they should be safe – schools, communities and homes.
The Commission provided materials to UN staff to help them prepare their report.
The Commission has now urged the Australian government to consider the report’s recommendations and take steps to counter violence against children.
7.2 UN General Assembly Special Session on children
In May 2002, the Human Rights Commissioner participated in the most important international conference on children in more than a decade; the Special Session of the UN General Assembly on children. At the Special Session, the countries of the world committed themselves to a series of goals to improve the situation of children and young people.
In December 2007, the UN will be holding a follow-up meeting to monitor the progress made in implementing the goals made at the Special Session.
8. More information on children’s rights…
- The Commission: for an overview of the Commission’s work in children’s rights in Australia.
- The Convention on the Rights of the Child: for the complete text.
- UN Committee on the Rights of the Child: this is the website for the Committee that reviews the reports that are submitted by governments on the implementation of the CRC. The comments that the Committee makes about Australia and other countries are accessible on this site.
- UNICEF: for information about the CRC and the work of UNICEF.