Reservations
Despite having ratified the Convention on the Rights of the Child (the Convention) in 1990, Australia is yet to withdraw its reservation to Article 37(c), which protects a child’s right to separation from adults in circumstances where a child’s liberty has been deprived, unless it is in the child’s best interest not to do so. Australia entered a reservation for this article which states that:
the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia, therefore, ratifies the Convention to the extent that it is unable to comply with the obligation imposed by Article 37(c). [1]
The Committee on the Rights of the Child has previously recommended that Australia withdraw this reservation as it is unnecessary, [2] and has again reiterated its recommendation in these Concluding Observations that Australia continue and strengthen its efforts for a full withdrawal of its reservation.
- Article 3: A child’s best interest is to be a primary consideration in all actions concerning children
- Article 37(c): In circumstances where a child has been deprived of their liberty, they have the right to be treated with respect and dignity and in a manner which takes into account the needs of their age, with particular attention to be paid to the separation of children from adults unless it is in a child’s best interest not to
Areas Lacking Progress
NATIONAL: Lack of withdrawal of reservation from Article 37(c)
Despite stating in its Response to the List of Issues [3] that it was reviewing its reservation to Article 37(c) and would be consulting with States and Territories in 2012, [4] the Australian Government is yet to release any information regarding its consultation and review. The Australian Government made a similar public commitment in its 2012 National Human Rights Action Plan, promising that it would place the review of the reservation to Article 37(c) on the agenda of the Standing Council of Treaties and finalise the review by the end of 2012. [5] In Australia’s Universal Periodic Review 2013 Progress Report, the Australian Council of Human Rights Authorities expressed its disappointment at the lack of information on both the review and public consultation processes and recommended that the Australian Government reconsider the necessity of the reservation given the situation in Western Australia where children were being held in adult prisons. [6] The National Children’s Commissioner also made a similar recommendation in her first Children’s Rights Report in 2013, asking that Australia finalise its review and withdraw its reservation. [7]
- The Australian Government withdraw its reservation to Article 37(c) of the Convention on the Rights of the Child.
- The Australian Government finalise its review of the reservation to Article 37(c) and make available any information regarding the review and consultation processes.
- Australia’s reservation
- Previous recommendation: (CRC/C/15?Add.268, para. 8)
- Attorney-General’s Department, Australian Government, ‘Australia’s response to the List of Issues-Convention on the Rights of the Child’ <http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporting/Documents/CRCListofIssuesresponse.pdf> (accessed 19 December 2013).
- Ibid., 1 <http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporting/Documents/CRCListofIssuesresponse.pdf> (accessed 19 December 2013).
- Attorney-General’s Department, Australian Government, National Human Rights Action Plan (2012) 7.
- Australian Council of Human Rights Authorities, ‘Australia’s Universal Periodic Review 2013 Progress Report’ (December 2013) 3.
- National Children’s Commissioner, ‘Children’s Rights Report 2013’ (2013) 9.