International law on family and children is brought into Australian law through our participation in international treaties. Treaties are international agreements between countries and international organisations (such as the United Nations and the International Labour Organisation) that are binding under international law when ratified by the countries signing the treaty. The agreements may take a variety of forms and use different titles (e.g. treaty, convention, agreement and protocol).
The value of international law lies almost entirely in how fully it is implemented into domestic law, as there is little capacity for enforcement of most international treaty obligations. It is Australian policy that treaties will not be ratified until they are incorporated directly into Australian law through legislation passed by Parliament. Then Commonwealth and state and territory governments must carry out a check of all existing laws, policies and administrative practices to identify areas of non-compliance with the treaty, and make the necessary changes in laws, policies and procedures to comply. This process can take several years to complete.
Treaties about children ratified by Australia
Australia has ratified the following United Nations conventions that deal with issues about children and family:
- Convention on the Rights of the Child (December 1990);
- Hague Convention on the Civil Aspects of International Child Abduction (December 1993);
- Hague Convention on Protection of Children and Cooperation in Respect of Inter-country Adoption (August 1998);
- Child Protection Convention (April 2003);
- Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict (September 2006);
- ILO Convention 182 – to Eliminate the Worst Forms of Child Labour (December 2006); and
- Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (January 2007).
Convention on the Rights of the Child (CROC)
The United Nations Convention on the Rights of the Child (CROC) imposes certain obligations on signatory countries to protect the essential rights of children, and to provide certain assistance to children and families. As a central concern, countries must treat the best interests of the child as a primary consideration (Article 3). Furthermore, the country must ensure that children are given the opportunity to express their wishes and to have these heard and given due weight in accordance with their age and maturity in all matters (Article 12).
CROC is the most widely accepted international agreement and has been signed by all member countries of the United Nations. The Australian Government has made a statement claiming that its laws and practices are generally consistent with the provisions of CROC. The Government has been criticised however, for making only a limited incorporation of CROC into Australian domestic law. This has been done by making CROC an ‘international instrument’ under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) which means that, though breaches of CROC can be reported to the Commission, Australian courts cannot enforce its provisions.