CRC25 Australian Progress Report 2016

Opening Remarks
by the Honourable
Alastair Nicholson
AO RFD QC
Chair, Children’s Rights International
“The topic of children’s rights is a controversial one. While espousing
the need to protect children, emphasising their vulnerability and
identifying their importance as future adults, many individuals,
organisations and nations either flout basic principles or baulk
at the conversion of rhetoric into action.”
(Harrison 1990)
These remarks were prescient as this Report demonstrates.
Australia signed the CRC on 22 August 1990, ratified it on 17
December 1990 and it has since been ratified by every country
in the world except the United States.
When I became Chief Justice of the Family Court of Australia in
February 1988 I welcomed its advent as opening new doors to
courts dealing with children in furthering their safety, welfare
and development.
I naively assumed that Australia, as a major supporter of the UN
from its inception and as one of the nations that was particularly
active in the drafting of the CRC, would make great efforts to
comply with it and support it with appropriate legislation. This did
not happen and without domestic legislation, the treaty has no
legislative force in Australian law.
The Australian legal approach to this issue has been described
as “Janus Faced”:
“The internationally-oriented face enjoys the international status
it receives from being a party to the treaties; while the nationallyturned
face refuses to acknowledge the domestic implications of
its international obligations” (Charlesworth 2000).
This is not to say that the CRC has ceased to have influence,
but its influence has waned as Governments come to realise
that international treaties are of persuasive force only.
As a result, Australian Governments have consistently flouted the
guiding principles of the CRC and other international instruments.
That Governments at both the Federal and State level have
consistently done so is evidenced by the 2012 report of the UN
Committee on the Rights of the Child, which is not comfortable
reading for Australians and neither is this report. Not surprisingly,
this approach has attracted criticism from multiple UN sources.
The 2012 report criticised the Migration Act which permits mandatory
detention of asylum seeker and refugee children without time limits
or judicial review and failure to consider their best interests. Its
recommendations included ensuring adequate legal protections for
asylum seekers and to conclusively abandon its attempted policy
of so-called “offshore processing” of asylum claims and “refugee
swaps”; and evaluate reports of hardship suffered by children
returned without a best interests determination.
Similarly, in relation to Aboriginal and Torres Strait Islander issues
it expressed concern that racial discrimination remained a problem
and particular concern at:
“Serious and widespread discrimination faced by Aboriginal
and Torres Strait Islander children, including in terms of
provision of and accessibility to basic services and significant
over-representation in the criminal justice system and in outof-home
care” (UN Committee on the Rights of the Child 2012).
The present report makes it clear that these and many other
deficiencies have not been remedied and in many ways the
situation may have even worsened.
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AUSTRALIAN CHILD RIGHTS TASKFORCE