Report Cards

• Article 3: In all actions, the best interests of the child should be the primary consideration.
• Article 4: All rights recognised in the Convention should be implemented in a State Party’s legislation.
• Article 12: Children have the right to be heard.

Areas Lacking Progress

NATIONAL: Lack of a comprehensive national child rights Act

Whilst Australia ratified the Convention in December 1990, it is yet to implement a comprehensive national child rights Act. Currently in Australia, only Victoria and the ACT have enacted legislation specifically dedicated to human rights.

NATIONAL: Lack of signature to the Third Optional Protocol of the Convention on the Rights of the Child, and lack of effective and consistent remedies for child rights violations

On 19 December 2011, the United Nations General Assembly approved the Third Optional Protocol to the Convention on the Rights of the Child (Third Optional Protocol), which allows for complaints regarding child rights violations to be submitted to CRC once domestic avenues have been exhausted. The Third Optional Protocol, which opened for signature on 28 February 2012, will enter into force on 14 April 2014, having received its tenth ratification from Costa Rica. As at January 2014, signatures numbered at forty-five, with ten State Parties having ratified it. [3] Australia is yet to do either of these as it is still considering its position. [4] In considering its position, the Australian Government conducted an initial public consultation which ended on 10 April 2012. Nineteen submissions were forwarded, with all of them urging the Australian Government to sign and ratify the Third Optional Protocol and most advising that the Government should do so expeditiously. [5] If and when the Third Optional Protocol is implemented in Australia, its complaints mechanism will allow for complaints to be brought to the Committee on the Rights of the Child individually or in groups of individuals; collectively by national human rights institutions, Ombudsmans or non-government organisations; and by other State Parties. [6]

By ratifying the Third Optional Protocol, the procedures will complement the existing mechanisms available at the domestic level and bring the Convention into line with the other six human rights treaties and the other Optional Protocols that Australia is already a party to. [7] Currently at the domestic level, children can complain to the Australian Human Rights Commission (AHRC) if they believe there has been a violation of human rights under the Convention. [8] In the ACT, victims of human rights violations may commence proceedings in the Supreme Court. [9] Likewise, those in Victoria who believe that an administrative decision has been made on unlawful grounds in regards to the Charter of Human Rights and Responsibilities 2006 (Vic), may have a right to seek relief or a remedy. [10] Furthermore, the Victorian Ombudsman has also been given extra powers to investigate complaints arising under the Charter. [11] Unfortunately, the National Children’s Commissioner currently does not have a complaint-handling role. In her first Children’s Rights Report she expressed her concern at the accessibility and availability of these domestic remedies, recommending additional resourcing for the AHRC in completing this work. [12]

• Australia should consider enacting a comprehensive child rights Act at national level.
• Australia should ensure effective remedies for violations of child rights are consistently available.
• Australia should sign and ratify the Third Optional Protocol to the Convention on the Rights of the Child.

1. Attorney-General’s Department, Australian Government, ‘National Human Rights Action Plan’ (2012) 7, <http://www.ag.gov.au/Consultations/Documents/NationalHumanRightsActionPlan/National%20Human%20Rights%20Plan.pdf> (accessed 9 January 2014)
2. See Charter of Human Rights and Responsibilities Act 2006 (VIC), and Human Rights Act 2004 (ACT)
3. United Nations Treaty Collection, Chapter IV Human Rights, 11.d Optional Protocol to the Convention on the Rights of the Child on a communications procedure<https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-11-d&chapter=4&lang=en> accessed 9 January 2014.
4. National Children’s Commissioner, Australian Human Rights Commission, ‘Children’s Rights Report 2013’ (2013) 16
5. Attorney-General’s Department, Australian Government, ‘Human rights treaty body reporting’ (website) <https://treaties.un.org/Pages/ViewDetails.aspx?mtdsg_no=IV-11-d&chapter=4&lang=en> accessed 9 January 2014
6. Third Optional Protocol to the Convention on the Rights of the Child on a Communications Procedure, Article 5, 12
7. See International Covenant on Civil and Political Rights; International Covenant on Economic, Social and Cultural Rights; Convention on the Elimination of All Forms of Discrimination against Women; Convention on the Rights of Persons with Disabilities; Convention on the Elimination of All Forms of Racial Discrimination; Convention against Torture. See also Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty;  Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography
8. Australian Human Rights Commission, ‘The Australian Human Rights Commission’s Complaint Process: for complaints about breaches of human rights’ (website) <http://www.humanrights.gov.au/australian-human-rights-commission-s-complaint-process-complaints-about-breaches-human-rights> (accessed 9 January 2014)
9. Human Rights Act 2004 (ACT) s40C(1)-(2)
10. Charter of Human Rights and Responsibilities 2006 (Vic) s39. Note: a right to seek relief or a remedy due to unlawfulness arising because of the Charter only exists if an external right to seek a relief or a remedy exists.
11. Ombudsman Act 1973 (Vic) s13AA(2)
12. Australian Human Rights Commission, National Children’s Commissioner, ‘Children’s Rights Report 2013’ 17