Of all the United Nations Human Rights instruments, the Convention on the Rights of the Child (CROC; the Convention) is the most widely ratified. It has been accepted by 197 state parties, the only notable exception being the United States of America. CROC is an inoffensive document, which puts the rights of the child on the agenda while affirming the importance of the family. The Convention is a generally taken to be an innocuous document, a convention to which it was thought nobody could object. This is in part because of the consensus process by which it was derived; a process which ensured that anything controversial was left out. The instrument has no individual complaints mechanism — its implementation is left to the good will of the nation states, whose primary responsibility is to report to the Committee on the Rights of the Child. The fact that it is very common for Reports to be late, or to be essential propagandistic, attests to the lack of seriousness with which it is treated by many of the states party to the treaty.
Nonetheless, should one wish to take the rights of the child seriously, the Convention is a good starting point. It is possible to find a guarded support for most of the issues which have concerned the various proponents of children’s rights theory, without giving priority to any one theory over another. Geraldine Van Beuren considers that the Convention reflects the views of four different schools of children’s right theory for it is not a question of prevention and protection or participation, or of children’s salvation or children’s liberation: all are equally necessary when applied appropriately.2
Van Bueren considers that CROC is concerned with the "4 ‘P’s’:
My concern in this paper is not so much with the truth or the details of CROC but with the assumptions made about the Convention by ordinary Australians. The Inquiry into the Status of the United Nations Convention on the Rights of the Child conducted by the Joint Standing Committee on Treaties was conducted throughout 1997, and reported to Federal Parliament in August this year. This review of the impact of the Convention in Australia gives us a unique insight into the opinions and thoughts of concerned groups and individuals. Submissions were received from over 700 organisations and individuals, the vast majority of which were anti-CROC. These submissions reflect a basic misunderstanding of the role of international law in Australia, and serious misconceptions about the terms of the Convention.
For those committed to the achievement of human rights and social justice in Australia, it is very important to touch base with the common view about a treaty such as CROC. It is important for it allows us to come to an understanding of what work needs to be done to redress problems borne from ignorance. This is crucial because it reminds us that we must not only talk to the converted but must address passionate and heart-felt positions of good and concerned if misguided citizens. It also comes as a salutary reminder that these voices are heard and taken seriously by government, and that voices we may consider to be as sane and authoritative are only granted the same weight as all the other submissions. This means that it is essential that informed groups and individuals participate in government inquiries in equal numbers and with as much passion. For unless a counter-weight is provided to balance the fear which underlies many of the myths about the Convention, it is possible that governments will give precedence to the majority view.
The Joint Standing Committee on Treaties Inquiry into the Status of the UN Convention on the Rights of the Child
Before exploring the myths about CROC, it is necessary to note that the Report of the Joint Standing Committee on Treaties Inquiry into the Status of the UN Convention on the Rights of the Child does not accept any of the myths contained in the submissions. The Terms of Reference of the Inquiry were:
The 49 Recommendations contained in the Report can be simply summarised here as:
The Report notes that significant work needs to be done to improve the position of children in many areas, in particular the protection of the rights of indigenous and ethnic children to cultural identity etc; the right of all children to basic health and social security provisions where applicable (especially Indigenous children); greater inclusion of children in decisions that affect their welfare; the right to a stable home environment and the right to confidentiality in circumstances of child abuse.
The Report stresses that the central aim of protecting the rights of children need to be balanced against the rights of parents who are still central to the well being and guidance of their children. Like CROC itself, the Report acknowledges the family as the fundamental unit of our society and the role of parents as central to the lives of their children. However, the Report rejects the idea of the child as an autonomous rights-bearer. It insists that the Convention is, and should be, implemented in such a way that the parents and the family unit are supported.
The Report points out the need for further examination of the effects of CROC's implementation on legislative and administrative procedures affecting both Commonwealth and State/Territory governments by the relevant Commonwealth Joint Standing Committee's outlined in the Report. To facilitate this it is proposed that an Office of the Child should be created within Parliament to work in tandem with Minister for Families. The purpose of this Office is to interact with other government ministries to safeguard contents of CROC, to investigate government queries about children in legislation; and to work with the Human Rights & Equal Opportunity Commission
The Report acknowledges the serious problems with community's knowledge about CROC, and calls for education in this area to be developed as a matter of urgency. The education of the community should provide details of CROC as a pro-parent and pro-family document, not one which gives children priority over parents. Educational programmes need to be developed which include multi-cultural awareness and cultural sensitivity. It is recognised that there is a need for programmes to be developed within schools - within the curriculum — and that there is also a need to provide training to teach teachers in the terms of the convention. Further, education should be directed at parents in order to teach parents alternative parenting skills to avoid corporal punishment and other conflict within the family.
Analysis of the Responses to the Inquiry
This paper analyses 424 submissions to the Joint Standing Committee on Treaties Inquiry into the UN Convention on the Rights of the Child and 53 supplementary or amending submissions.3 It would appear that only one submission was authored by a child. While approximately 125 of these submissions were pro-CROC or pro-child (approximately 25%), the remainder were either completely anti-CROC or at least argued for substantial amendments or reservations to the Convention. It is also interesting to note that while the majority of submissions supporting the Convention were from non-government organisations, the majority of the anti-CROC submissions were from private individuals.4 A broad range of organisations made submissions to the inquiry including general interest groups such as the Human Rights and Equal Opportunity Commission and the National Children’s and Youth Law Centre and specified interest groups such as the Head Injury Council, Ethnic Child Care Development Unit or the Refugee Council of Australia.
Those responses which were in favour of CROC tended to strictly adhere to the ‘terms of reference’ of the Inquiry, answering the questions based on careful, rational argument. While some pro-CROC responses were based on more specific issues this tended to be because they were from a special interest group. Generally the pro-CROC submissions tended to be longer as they were more rational and based on more substantial arguments. There were diverse responses within the pro-CROC submissions and attitudes within the submissions varied greatly depending on the particular interpretation. For example the Australian Catholic Bishops Conference were very supportive of CROC but argued that it must be interpreted so that no power to protect children should exceed parental authority.5 They also argued that CROC must be interpreted to include protection of the child before birth, thus prohibiting abortion. The anti-CROC submissions tended either to argue against the whole convention - arguing for example that the United Nations can not govern Australia, or to look at specific articles but bring up a plethora of tangential issues. These submissions tended to lack rational or logical argument and were generally insubstantial and brief.
Primary Myths about CROC
A number of myths concerning CROC pervade the submissions to the Inquiry.6 This paper is concerned with four primary myths. The first is that CROC interferes with Australia’s sovereignty. The second is that CROC interferes with the Federal balance, imposing Commonwealth will on the States. The third myth is that CROC interferes with parent’s rights and is anti-family. Finally there is a myth that Australian laws with respect to children’s rights are themselves adequate and that CROC is unnecessary in the Australian context. These myths highlight the confusion in Australia about the effect of international treaties generally and CROC in particular.
Myth 1: CROC Interferes with Australia’s sovereignty
Underlying the first myth, that CROC interferes with Australia’s sovereignty, is a misconception about national sovereignty and the effect of international treaties. There is a concern that Australian law should not be made by non-elected, non-democratic, non-government bodies outside Australia.7 The following comments from the submissions give the flavour of the submissions which subscribe to this myth:
The fundamental error contained in the myth about CROC interfering with Australia’s sovereignty is the assumption that international instruments give power to external bodies to control the activities of Australian government. For those who are proponents of international human rights law generally it is a great disappointment that international law has no such power. Rather, in Australia, international instruments have an extremely limited impact both at law and at the level of social policy.
While it is true that the Commonwealth has wide power to enter into treaties, international treaties, including human rights treaties, do not become part of Australian law unless they are specifically incorporated into Australian law through legislation. Although there have been some openings for international human rights law to play a role in the development of Australian law, these opportunities are limited. There are three situations where international treaties may have an effect in Australia - in the interpretation of statutes; the development of common law rules; and in the exercise of administrative discretion.
Myth 2: CROC interferes with the Federal balance by imposing Commonwealth will on the States
The second myth, that CROC interferes with the Federal balance, is exemplified by the following comments:
In part these comments reflect myths about the Australian Federal system as much as about CROC. Australia today is seen as one country with national policies and practices reflecting a coherent dominant culture with its unique blend of English institutions and Western political values. The reality of relative power within the Australian federal system is not a matter of the exercise of treaty making power, although in some limited areas treaties have facilitated centralisation of power in Australia.18
The Commonwealth is particularly conscious of the position of the States in the process of treaty-making, and is careful to include State bodies in the decision-making with respect to signing and ratifying treaties. Australia played a leading role in drafting CROC. Throughout the 10 years of the drafting process, consultation occurred between Federal, State and Commonwealth governments. From 1980, the Convention was on the agenda of the Standing Committee of Attorneys-General (SCAG). Australian delegations attended all sessions of the convention drafting committee, and the States and Territories were represented on the delegation on each occasion. The negotiations which took place through SCAG resulted in their being a unanimous agreement between all the States and the Commonwealth about the ratification of the Convention.
There is no doubt that the fact that Australia is a party to CROC has given rise to international obligations. However these are not obligations taken on by the Commonwealth government to be imposed on the State governments. Rather they are international obligations applying to all governments within our federal system. Given the involvement of all State governments in the process of agreeing that Australia should become a party to CROC, it is not unreasonable to suggest that the States have accepted an obligation - not had it imposed upon them from above.
Myth 3: CROC Interferes with parents’ rights and is anti-family
The most pervasive yet disappointing myth about CROC involves the total misunderstanding of the content of the instrument. From the point of view of advocates of children’s rights there is much about CROC that is disappointing. The consensus process by which CROC was developed led perhaps inevitably to weak protections of children’s rights as a result of an incredibly delicate balance being struck between the recognition of the child’s need for welfare and their right and need for autonomy. In fact a great emphasis was placed on the ideological commitment to the beneficial and beneficent aspects of family life, the reliance of children on parents for nurturing and the ideological commitment to the family as the ideal location for development.
The myth that CROC interferes with parents rights and is anti-family takes a number of forms. However, the articulation of the myth about the Convention being anti-family does not come from isolated comments of uninformed trouble-makers — the following comments are representative remarks by concerned and caring individuals:
The first examples are general in nature, but also suggest that CROC empowers children to resist their parents:
In the context of the fear of loss of control over children of those in authority, there are four concerns which permeate the Submissions. These are: the rights of the parents with respect to freedom of religion; the problem of drugs and delinquency; the issue of corporal punishment and concern about abortion. In each of these matters the fear of the "breakdown of society", and the anxiety that the world "as we know it" is out of control is evident. In each case there is nothing, even potentially, in the terminology or overall meaning of the Convention which could substantiate these apprehensions. Some examples of comments reflecting these concerns follow.
CROC undermines a parents right to determine matters of religion and conscience of the child
Privacy clause (Art. 16) leads to increased truancy, drugs, delinquency etc.
CROC shouldn’t ban smacking (corporal punishment) - it is acceptable discipline not child abuse
Legal abortion is inconsistent with CROC (Art. 6)
There is no doubt that the task of parenting is a difficult one, and that the challenges of the late twentieth century have led to a re-evaluation of the role of authority in a number of areas. However it is important to understand that no matter how disruptive or dysfunctional modern family life may be, it is nonsensical to blame this on any form of law and in particular on the bland declaratory terms of the Convention of the Rights of the Child.
As Michael Antrum, of the National Children’s and Youth Law Centre at the University of New South WALES, comments
It is difficult to understand hostile opposition to CROC from some family and some religious organisations. CROC enshrines the pre-eminent position of parents in relation to the child in Article5…and in Article 18(1)…in at least 11 of the operational Articles of CROC, parents are referred to beneficially, and in others they stand to benefit indirectly as a result of the implementation of those Articles. The Convention is not anti-family, and it is not anti-parent, it is quite the opposite.36
Myth 4: The Convention is unnecessary, Australian laws are already adequate
Perhaps the most distressing aspect of reading of the submissions is the incredible optimism and doubly incredible ignorance about the position of Australia’s children. Instead of understanding the serious problems confronting such a high percentage of Australia’s children, much too often the submissions suggested that the situation in Australia was optimal, and that we do not even need CROC as a benchmark against which to measure Australian law and practice. Consider for example, the following comments:
However, the situation for Australia’s children is far from perfect. While no-one would deny that most Australian children have access to clean water and sanitation and there is no reason to fear injury through inadvertent contact with land mines, there is nonetheless no reason to be complacent. Significant problems face all Australia’s children, but special attention needs to be given to the position of indigenous children and children from non-English speaking backgrounds; children with disabilities; children within the juvenile justice system; and children dependent on social security.
Some of the problems facing Australia’s children include:
What does this tell us about the implementation of CROC?
Those who have a good working knowledge of both the Convention on the Rights of the Child and Australian law were able to undertake a realistic appraisal of the limitations of the current treatment of children. They were also able to be realistic about the very many positive things happening with respect to children in Australia. From their submissions can be drawn not only a critique of the existing situation, but also a number of well-thought through recommendations to improve the situation.
However, by far the majority of those concerned about the Convention on the Rights of the Child, (2/3rds of those making submissions) believe, despite the evidence,
The adherence to these myths suggests that there is a lack of community understanding about treaties and treaty-making in Australia and that there is a real, if unfounded, fear that CROC and United Nations are all-powerful and that the United Nations Convention on the Rights of the Child has potential which bears no relationship to the terms of the document or to even the potential impact of treaties which have not been incorporated into Australian law.42
Chris Sidoti, in the submission for HREOC, commented that:
Full compliance with Australia’s commitments in the Convention on the Rights of the Child is both realistic and attainable. Implementation of the standards of the Convention need not entail a large increase in government funding. Rather what is needed is national coordination with uniform national standards.43
However what is also needed is widespread knowledge of the Convention. The fear which is generated, and the misinformation which has fed off that fear, can only be addressed by a serious educational program targeted at children and adults alike in compliance with Article 42 of the Convention.
Australia ratified the Convention on 17th December 1990, and it came into force in Australia on the 16th January 1991. In ratifying the Convention Australia accepted that it had legally binding international obligations with respect to the treatment of children. The standards contained in the Convention on the Rights of the Child are a standard to be applied at all levels of government, so apply equally at the Commonwealth, State and Territory level. By ratifying the United Nations Convention on the Rights of the Child, Australia not only made commitments at an international level, and acquired international obligations - it also held out a promise to the Australian people - in particular, to Australia’s children. That promise, and those commitments, can be reduced to four:
The current status of these commitments needs to be addressed in the light of the Inquiry into the Status of the United Nations Convention on the Rights of the Child conducted by the Joint Standing Committee on Treaties. The research recited in this paper would indicate that what is most pressing is the need to comply with the commitment contained in Article 42 of CROC. Appropriate educational strategies about human rights in Australia generally, and about the rights of the child in particular, must be developed and implemented as a matter of urgency.
Notes:1 Senior Lecturer, Faculty of Law, University of NSW. I would like to thank Julia Kosky and Radhika Withana-Arachichi for their work on this project. I would also like to thank the Law Foundation of NSW and the ARC Small Grants Scheme for supporting my research in this area.
2 Van Beuren, G the International Law on the Rights of the Child 1995 Matinuus Nijhoff Dordrecht at p15.
3 This constitutes all the submissions contained in the first 13 volumes of submissions which were available for consultation up until December 1997. There is no reason to believe that other than that this is a representative sample of the total number of submissions to the Inquiry.
4 Many of the anti-CROC submissions were in the form of a standard 2-page letter.
5 Submission 174, Australian Catholic Bishops Conference
6 A number of other, minor myths, are expressed throughout the submissions. These include that the language of the Convention is vague and ambiguous such that it is a "potential minefield" (3) and it is unclear as to who determines the ‘best interests of the child’, conflict in this area is what causes the majority of the current problems which the Convention is attempting to solve (61). It is believed that as a result "parents have no guarantee the Convention will be interpreted in a reasonable way… eg Art. 14 may mean parents can do little to protect their children from religious or political cults" (197) and that "Some clauses have noble sentiments, but these are submerged by those that are dangerously vague or notable for what they don’t say…it will be a veritable mine-field in a court of law." (206). Further, it is believed that the "the Convention itself could militate against some of it’s objectives" eg the problem of paedophilia could be exacerbated by Article 15 giving freedom of association without parental control, and Article 34 children are to protected from participation in pornographic performances, yet article 17 allows them to view it through the Internet and magazines available at any newsagents. This article also allows children to find out how to make bombs and drugs and form relationships with strangers…" (119). Some concern is also expressed about HREOC which is seen to be "an incompetent body to enforce CROC because it operates outside traditional system of justice... The commission can convict people of offences who have not had legal representation when facing and seeking to defend themselves against anonymously laid charges. This cannot happen in a court of law." (4) This is not to deny that there are potential problems of interpretation of CROC, or that HREOC is/was above criticism. It is, rather, that the context in which these views were expressed suggests that they are misguided criticisms rather than based on serious analysis.
7 Submission 85, Council for the National Interest: Western Australia Committee
8 Submission 128, Peirson Adolescent Support Service
9 Submission 129, Salt Shakers: A Christian Ethics Action Group
10 Submission 159, Mr. Greg and Ms Rose King
11 Submission 160, John Plunkett Centre for Ethics in Health Care
12 Submission 225, Mr. Bruce and Mrs. H Mitchell
13 Submission 7a, Mr. R L Swift
14 Submission 395, R F Sherlock
15 Submission 8, Endeavour Forum
16 Submission 24, Family Council of Victoria
17 Submission 138, Festival of Light
18 For example there was disquiet about the effects of the Franklin Dams case on Australian federalism.
19 Submission 104, Mr. David Allen
20 Submission 33, Mr. Tony Shaw
21 Submission 160, John Plunkett Centre for Ethics in Health Care
22 Submission 29, Mrs. S J Kuchel
23 Submission 68, Mr. A R Moulton
24 Submission 9, National Party of Australia, Craigslea Branch, Queensland
25 Submission 68, Mr A R Moulton
26 Submission 113, Australian Family Association, ACT
27 Submission 343, Mr N and Mrs E Clarke
28 Submission 128, Peirson Adolescent Support Service
29 Submission 3a, Mr C Francis
30 Submission 138, Festival of Light
31 Submission 119, Mrs. Debra Hausmann-Akui
32 Submission 128, Peirson Adolescent Support Service
33 Submission 218, Mr L T Grieve
34 Submission 175, Mr DC and Mrs HL Keen
35 Submission 70, The Australian Family Association, Tasmania
36 Submission 321, The National Children’s and Youth Law Centre
37 Submission 168, Department of the Premier and Cabinet, Tasmania
38 Submission 20, The Country Women’s Association of Western Australia
39 Submission 230, Cooloola Ratepayers and Residents Association
40 Submission 351, Mr A Griggs
41 On the rights of children with disabilities under CROC see Jones M & Marks LAB "Beyond the Convention on the Rights of the Child: the Rights of Children with Disabilities in International Law" (1997) 5 International Journal of Children's Rights 177-192
42 While a number of the problematic responses were by way of form letter, and a number were no doubt the result of the coordinated effort of a number of right wing groups we must understand that these are nonetheless taken seriously in the formation of official public opinion. To the extent that these submissions represent deliberate misrepresentation and distortion of the truth rather than ignorance, it is essential that we understand their power. At the very least this suggests the importance of those with knowledge contributing to government human rights inquiries rather than leaving what we as given to be put by a small number of professional bodies.
43 Submission 336, Human Rights and Equal Opportunity Commission.