Australia ratified the UNCRC on 17 December, 1990.55 Ratifying a treaty makes it binding on Australia in international law, but the treaty does not become part of Australian domestic law unless it is given the force of law by statute.56 A treaty that has not been incorporated into domestic law does not affect the rights or liabilities of Australian citizens.57 The Commonwealth Government has not enacted or proposed to enact legislation implementing the UNCRC, although some domestic laws have been made or amended which give effect to principles of the UNCRC.58 This is hardly a singular event, as Australia has ratified all seven of the international human rights conventions,59 but has not given the force of law to any of these statements of rights. Victoria and the Australian Capital Territory have taken the initiative of enacting statements of rights.60 Nevertheless, there is no Bill of Rights at a federal level and Australia remains the only modern liberal democracy in the world without a national statement of rights.61
54 Ibid, [30].
55 Office of the United Nations High Commissioner for Human Rights,
Second and Third Periodic Reports of States Parties due in 1998 and 2003: Australia, [2], CRC/C/129/Add.4 (2004). 56
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (‘Teoh’), 286-7 (Mason CJ and Deane J), 298 (Toohey J), 304 (Gaudron J), 315 (McHugh J); Rt Hon Sir H Gibbs, ‘Teoh: Some Reflections’ (Paper presented at the Fifteenth Conference of the Samuel Griffith Society, Adelaide, 23-25 May, 2003)
<http://www.samuelgriffith.org.au/papers/html/volume15/v15chap7.html> at 3 December 2009. 57 Gibbs, above n56; Teoh (1995) 183 CLR 273.287 (Mason CJ and Deane J).
58 Such as FLA s60B, the ‘objects and principles’ section, discussed above.
59 The International Covenant on Civil and Political Rights; the UNCRC; the Convention Against Torture; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention on the Rights of Persons with Disabilities. Commonwealth Government Attorney-General’s Department website
<http://www.ag.gov.au/humanrights> at 2 November 2009. 60
Charter of Human Rights and Responsibilities Act 2006 (Vic) and Human Rights Act 2004 (ACT). In 2007, the Tasmanian Law Reform Institute released a report in favour of a Bill of Rights for Tasmania. No legislative action has been taken to date.
61 J Bessant and R Watts, ‘Children and the Law: An Historical Overview’ in Monahan and Young (eds), Children and the Law in Australia (2008) 21. Proposals for a federal statement of human rights arise from time to time and lead to media attention and public discussion, such as the National Human Rights Consultation held in July, 2009
(http://www.humanrightsconsultation.gov.au at 14 January 2011). However, no active steps to enact a federal bill or charter of rights have been taken.
Despite Australia agreeing to ‘undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the [UNCRC]’ (Article 4), this has not occurred in practice. Tobin wrote:62
Although there is evidence of a trend to recognise the rights of children within the legal systems of some states, Australia has remained obstinate in its refusal to implement the [UN]CRC. This is not to say that children do not have human rights in Australia…or that articles under the [UN]CRC have not informed, or are incompatible with, discrete aspects of legislation and policy within some jurisdictions within Australia. On balance, however, there has been no deliberate or concerted effort to use the [UN]CRC and the notion of children as rights bearers as the benchmark against which to develop, implement and monitor laws and policies affecting children.63
Therefore, the actual effect of the UNCRC on Australian law is extremely limited.64 Where there is ambiguity in domestic legislation, an interpretation of that legislation which complies with the UNCRC should be adopted.65 Further, principles contained within international instruments can be used in exercising judicial discretion and as a guide to developing the common law.66
As will be discussed below, Australia’s ratification of international instruments may also give rise to a legitimate expectation, on the part of a person seeking to rely on the convention, that the principles of the convention will be complied with.67
The only notable incorporation of the UNCRC in domestic law is its annexure to Schedule 3 of the Australian Human Rights Commission Act 1986 (Cth).68 The Act
62 Tobin, above n6, 30.
63 Ibid, 24.
64 With the exception of the State and Territory that have enacted statements of rights that will have force in matters under their jurisdiction.
65 S Roberts, ‘Minister of State for Immigration and Ethics Affairs v Ah Hin Teoh: The High Court Decision and the Government’s Reaction to it’ (1995) 2 Australian Journal of Human Rights 135, 135; Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J); Gibbs, above n56.
66 Roberts, above n65, 135;
Teoh (1995) 183 CLR 273, 288 (Mason CJ and Deane J); Mabo v Qld [No 2] (1991) 175 CLR 1, 42 (Brennan J); Dietrich v R (1992) 177 CLR 292, 321 (Brennan J); Gibbs, above n56.
67Teoh (1995) 183 CLR 273. See discussion below.
68 The Australian Human Rights Commission, formerly named the Human Rights and Equal Opportunity Commission, has a role in monitoring and promoting compliance with international human rights standards in Australia, including receiving complaints about alleged breaches of human rights under federal laws (Australian Human Rights Commission website <www.humanrights.gov.au> at 2 November 2009).
states that the Aboriginal and Torres Strait Islander Justice Commissioner must have regard to the UNCRC in performing his or her functions.69