AUSTRALIA: National Laws

Summary: General overview of Australia's national legal provisions on children's rights, including guidance on how to conduct further research.

National laws on children's rights

Status of the CRC in national law
International treaties and Conventions do not automatically form part of Australian law, and the CRC has not been directly incorporated into national law.  The Convention cannot be enforced in domestic courts and does not take precedence over national legislation, but can and has been used to interpret laws and review Government actions. 

Constitution: The Australia Constitution Act, with the exception of limited political rights with regards to elections, does not contain rights provisions, nor is there a federal Human Rights Act. At the level of the states and territories, Victoria and the Australian Capital Territory have enacted the Victorian Charter of Human Rights and Responsibilities Act 2006 and the Human Rights Act 2004, respectively.

The Victoria Charter of Human Rights and Responsibilities Act 2006 contains a number of sections of particular importance to the rights of children:

• Art. 17: provides for the protection without discrimination of children such as is in the child's best interests
• Art. 23: contains three specific guarantees in relation to the rights of children involved in the criminal process
• Art. 24(3): provides that criminal proceedings involving children may be exempted from the requirement to make such proceedings public
• Art. 25(3): provides that a child charged with a criminal offence has a right to a procedure that takes account of his or her age and the desirability of promoting the rehabilitation of the child
• Art. 44: requires the Attorney-General to conduct a review of the Act after four years, including as to whether additional rights under the Convention on the Rights of the Child should be included

The Australian Capital Territory Human Rights Act 2004 contains similar provisions:

• Art. 11(2): provides for the protection needed for children because of being a child, without distinction or discrimination of any kind
• Art. 20: contains a number of specific rights of children involved in the criminal process
• Art. 21(3): provides that criminal and civil proceedings involving children may be exempted from the requirement to make such proceedings public
• Art. 22(3): provides that a child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability for promoting his or her rehabilitation

Legislation: Legislation relating to children exists at both the federal and state levels. The Acts of particular importance for children in the states, territories and at the federal level include, but are by no means limited to:

• The Commonwealth Family Law Act 1975 (Australia)
• The Commonwealth Crimes Act 1914 (Australia)
• The Criminal Code Act 1995 (Australia)
• The Disability Discrimination Act 1992 (Australia)
• The Children, Youth and Families Act 2005 (Victoria)
• The Education and Training Reform Act 2006 (Victoria)
• The Children's Protection Act 1993 (South Australia)
• The Children (Criminal Proceedings) Act 1987 (New South Wales)
• The Children and Young People Act 1999 (Australian Capital Territory)
• The Young People Amendments Act 2006 (Australian Capital Territory)
• The Crimes (Restorative Justice) Act 2004 (Australian Capital Territory)
• The Crimes (Sex Offenders Registration) Act 2005 (Australian Capital Territory)
• The Queensland Child Protection Act 1999 (Queensland)
• The Juvenile Justice Act 1992 (Queensland)
• The Youth Justice Act 2005 (Northern Territories)
• The Working with Children (Criminal Record Checking) Act 2004 (Western Australia)

  Note: the State in which the legislation applies is identified in brackets after the name of each Act. Legislation that applies at the Federal level is marked “Australia”.

Legal Research
The Australian Parliament maintains an official website with details of Bills under consideration (http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation#a13) as well as links to legislative instruments (http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/leginstruments), and the Government publishes national legislation on its ComLaw website (http://www.comlaw.gov.au/).  The Australasian Legal Information Institute also makes a wide range of federal and state legislation available (http://www.austlii.edu.au/).  In addition, the GlobaLex project at New York University has released a guide to legal research in Australia (http://www.nyulawglobal.org/Globalex/Australia1.htm), and the World Legal Information Institute (http://www.worldlii.org/au/) and the U.S. Law Library of Congress (http://www.loc.gov/law/help/guide/nations/australia.php) both provide access to a selection of legal and governmental resources.

Case Law
CRC Jurisprudence
Australian courts have considered the Convention on the Rights of the Child in a number of cases, including with regards to the best interests of the child (Minister of State for Immigration and Ethnic Affairs v. Teoh; Tien and Others v. Minister for Immigration and Multicultural Affairs), the detention of children in immigration centres (Minister for Immigration and Multicultural and Indigenous Affairs v. B and ors.) and the sexual exploitation of children in extra-territorial jurisdictions (XYZ v. Commonwealth of Australia).

Case Law Research
The Australasian Legal Information Institute maintains a database of the case law of the High Court of Australia (http://www.austlii.edu.au/au/cases/cth/HCA/), the Federal Court of Australia (http://www.austlii.edu.au/au/cases/cth/FCA/) and the Family Court of Australia (http://www.austlii.edu.au/au/cases/cth/FCA/). Legal jurisdiction in Australia is complicated by the country's federal political arrangement, but links to judicial decisions from the various states can also be found through the Australasian Legal Information Institute (http://www.austlii.edu.au/databases.html).

Compliance with the CRC
In its 2012 Concluding Observations, the Committee on the Rights of the Child welcomed the passage of legislation at the Federal and state levels to give effect to the CRC, but expressed concern at a number of broad areas of national law. The Committee noted the absence of a comprehensive Child Rights Act to give direct effect to the Convention in national law as well as the “fragmentation and inconsistencies in the implementation of child rights across [Australian] territory” as a result of the variation in laws between the states and territories.

In depth analysis
Beyond these general concerns about the general legal framework for children's rights, the Committee's 2012 Concluding Observations also raised a number of more specific concerns with regards to the compatibility of national law with the Convention. The Committee reiterated serious and persistent concerns about the domestic law with regards to asylum-seeking and refugee children, and of particular concern was the failure to make the best interests of the child the primary consideration in immigration procedures, especially with regards to the detention of children. The Committee also raised concerns that no time limits were set on the period for which children could be detained, and that immigration detention was not amenable to judicial review. As such, the Committee urged the State to consider substantial reform to this area of national law to bring it into conformity with the Convention.

The Committee also raised pervasive concerns with regards to the juvenile justice system. Specifically, the Committee noted the low minimum age of criminal responsibility, the failure to take adequate account of the specific circumstances of children with mental disabilities in conflict with the law, the prevalence of mandatory sentencing regimes for children, and Queensland's practice of trying children aged 17 in the adult criminal justice system. The Committee urged the State to address these concerns, including through legislation.

Also of serious concern was the continuing practice of non-therapeutic sterilisation of girls with disabilities, an issue the Committee raised in the context of violence against girls and discrimination against children with disabilities. The Committee urged the State to prevent the sterilisation of women and girls unable to consent to the treatment and to ensure that the practice of sterilisation is governed by non-discriminatory legislation.

Current legal reform projects
Please contact CRIN if you are aware of any current legal reform projects in Australia.