ANSWERS TO QUESTIONS TAKEN ON NOTICE BY THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

JOINT STANDING COMMITTEE ON TREATIES INQUIRY INTO THE OPTIONAL PROTOCOL TO THE CONVENTION ON THE RIGHTS OF THE CHILD ON INVOLVEMENT OF CHILDREN IN ARMED CONFLICT


Introduction

  1. On 9 and 10 August 2004 the Joint Standing Committee on Treaties held oral hearings as part of its inquiry into the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict (‘Optional Protocol’). During its evidence to the oral hearing the Human Rights and Equal Opportunity Commission (‘Commission') agreed to take two questions on notice. The Commission's responses to those questions are set out below. The Commission also seeks the Committee's leave to respond to another two issues raised in the evidence to the oral hearings.

Protection of minors employed by defence contractors

  1. On 9 August 2004 Mr Wilkie asked Mr Lenehan, the Commission’s representative, the following question about the protection of minors employed by defence contractors:

    How does the Commission feel about organisations employed by Defence to provide services that may have underage people working for them who could then be involved in conflict indirectly or even directly – for example, if you had a contractor on board a ship who got involved in conflict, and that person employed an apprentice who was under 18?
  2. The Commission is of the view that the Australian Defence Force (‘ADF') should take measures to ensure that persons under the age of 18 years are not directly or indirectly involved in armed conflict whether or not such persons are members of the armed forces.

  3. As a minimum, the Commission notes that the Convention on the Rights of the Child provides that States Parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities.1

Norwegian measures to protect minors associated with the defence force

  1. On 9 August 2004 Dr Southcott asked Mr Lenehan the following question about Norwegian measures to protect minors:

    The Uniting Church, in their submission, talked about the Norwegian alternative. Are you familiar with that? Norway introduced legislation allowing it to offer 17-year-olds a military career without them formally becoming members of the defence force. Does [the Commission] wish to make any comments on that?
  2. The Commission understands, from the limited information available to it, that Norway has recently prohibited the recruitment, both compulsory and voluntary, of persons under the age of 18 years.2 While it does allow persons above the age of 16 years to join the Home Guard Youth, and volunteers over the age of 17 years to be affiliated with the armed forces, for example under apprenticeships, persons under the age of 18 years enjoy the following protections:

    • they are not considered to be members of the armed forces in any other way;
    • they are not permitted to form part of the mobilisation force or in any other way be affected by mobilisation plans;
    • they are free at any time to terminate their affiliation with the armed forces with immediate effect;
    • they are to be immediately be released from their affiliation with the armed forces if an armed conflict breaks out or becomes imminent, or if the armed forces or any part thereof has been ordered on a war footing;
    • they shall not be allowed to receive training in combatant disciplines nor shall they be allowed to participate in any other form of combatant activities.3
  3. The Commission reiterates its view, shared by the International Committee of the Red Cross, the UN High Commissioner for Human Rights and the special representative of the Secretary-General for children in armed conflict, that Australia should raise the minimum age for voluntary recruitment into the ADF to 18 years of age.

  4. However, if the ADF decides to continue recruiting persons under the age of 18 years the Commission would strongly support Australia implementing measures similar to the Norwegian model for their protection.

Compliance with the requirements of the Optional Protocol

  1. The Commission notes that the representatives from the ADF were not asked to comment on the discrepancies between the wording of the Optional Protocol and the protections contained in Defence Instruction (General) PERS 33-4 (‘Defence Instruction’) at the oral hearing on 10 August 2004. As highlighted in the Commission’s submission, the Defence Instruction does not require that the recruitment of persons under the age of 18 years be ‘genuinely’ voluntary, or that the minor be ‘fully’ informed about their duties or that their parents or legal guardians give ‘informed’ consent, as is required under Article 3(3) of the Optional Protocol.

Availability of Defence Instruction (General) PERS 33-4

  1. During the oral hearing held on 10 August 2004 Air Commodore Simon Harvey was asked to respond to the Commission’s submission that it would be preferable if the protections contained in the Defence Instruction were enshrined in the Defence Act 1903 (Cth). Air Commodore Harvey responded:

    I might add that one of the suggestions which was raised in the submission was that by putting it in legislation it would be more openly available to members of the general public. In my experience, if you are a 16- or 17-year-old, you probably do not spend a lot of time reading legislation. I think the more likely scenario would be that they would do a search on the Internet and, it being a treaty, it would be recognisable and discoverable for that mechanism.
  2. The Commission is of the view that, as a matter of policy, all rules, instructions, regulations and legislation should be accessible to members of the public in accordance with the principle of open and responsible government. This is particularly important in the case of Australian laws that implement fundamental protections such as those contained in the Optional Protocol. Actual and potential members of the ADF who are minors, their parents and (if necessary) their legal representatives, should have ready access to that information - including on the internet - which they may require at short notice (for example, at a time of imminent conflict).

Human Rights and Equal Opportunity Commission 20 August 2004


Endnotes

  1. Article 38(2).
  2. The Commission understands that the amendments came into force under Om lov om endringar i lov 17. juli 1953 nr. 28 om Heimevernet og lov 17. juli 1953 nr. 29 om verneplikt (heving av aldersgrenser for militær teneste) and that no English translation is available.
  3. This information is taken from a paper circulated by the Norwegian Delegation to the European Conference on the Use of Children as Soldiers, Berlin, (18-20 October 1999), cited on the Coalition to Stop the Use of Child Soldiers website.
Human Rights and Equal Opportunity Commission Website: Legal Information Last updated 15 January 2002.