Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Thursday, 30 September 1993
Page: 1595


Senator ELLISON (10.11 p.m.) —On 20 November 1989 the General Assembly of the United Nations adopted the Convention on the Rights of the Child. It was not until 17 December 1990 that the government ratified the convention. On 22 December 1992 the Attorney-General made a declaration with respect to the convention in accordance with the Human Rights and Equal Opportunity Commission Act 1986.

  As previously stated by Senator Vanstone, the coalition has no opposition to the convention as such and what it stands for. However, notwithstanding the subsequent ratification and declaration by the Attorney-General, there has been a great deal of concern about this in the community. My office and, I believe, those of fellow senators have been inundated with correspondence on this very matter. Nearly three years after ratification, concerns are being widely expressed about the effect that this convention might have on Australia.

  In general, the opinion voiced has been that this convention tends to undermine the authority of parents and those in whose legitimate authority children are placed. As well as that, there has been complaint that insufficient time has been given to the discussion of this convention before either ratification was made or the declaration was made by the Attorney-General.

  I was interested to note in the debate we had yesterday on religious freedom that there were some 11 years between the adoption by the United Nations and ratification by this country. It would seem that two years is a very small period within which to discuss a most important subject as this. In any event I ask fellow senators who spoke on this matter to remember that part A of the motion moved by Senator Vanstone states:

  That the Senate—

  (a) recognises:

    (i) that everyone is entitled to fundamental rights and freedoms without distinction such as based on race, sex, religion or nationality, and

    (ii) that the child by reason of physical immaturity needs special safeguards and care;

So it is not a question of the coalition being hardnosed in relation to this convention. It is not a question of the coalition denying that such rights should be recognised or afforded to children. It is, in fact, nothing of the sort. It is simply the fact that there is some reservation about the declaration by the Attorney-General in relation to this matter and the subsequent effect that the declaration might have on Australia.

  Firstly, let us look at the convention. The convention comprises 54 articles. I was not in this place when the ratification took place, but I believe there are some aspects of it which could give rise to some concern.

  Articles 12 to 16 were singled out in correspondence that I have received as being the areas of main concern. The comments that I have received are that these articles deal with the freedom of children to seek, receive and impart information and ideas of all kinds, freedom of association and that there should be no arbitrary interference with the privacy of children.

  As such that is all very well. That deals with the rights of the child per se, but the criticism has been in relation to the lack of comment on the role of the parent. Now I understand that the Australian delegation was responsible for insertion of article 5, which states:

State Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent, with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.

Of course the crucial words are that `the parent shall offer appropriate direction and guidance'. A good deal of correspondence that has been addressed to my office has expressed concern about this matter.

  The fear is that although the declaration might be a starting point for practices adopted by the Commonwealth—as stated by Senator Bolkus—it could well extend into Commonwealth legislation. The fear is exactly what interpretation would be placed on article 5 as opposed to articles 12 to 16 and how it relates to domestic legislation.

  As I understand the position in Europe, there is the Treaty of Rome whereby European countries acknowledge that they will be bound by such conventions and they will have consequential domestic legislation. I believe that writers on this subject have been of the opinion that Australia should be in the same boat. It would seem to me that the comments from the government are in the same vein.

  An interesting point was made in an article written by Neville Turner in the January-February 1992 edition of the Law Institute Journal. He says:

  This article has sought to identify issues that the N.C.B.A.—

that is the National Children's Bureau of Australia—

might well concern itself with in its role of implementing and monitoring the U.N. Convention on the Rights of the Child. But it is, I believe, readily apparent that the legal profession also has a major role to play in ensuring that it is translated into reality.

That is an article that goes into the matter in some depth. It betrays the thinking behind this and that is that lawyers have a role in translating this convention into reality. What it is about is not just the convention providing some sort of guidance for Commonwealth practice, but in translating it into day to day living for Australians.

   The disallowance of this motion in no way detracts from Australia's international obligations on the matter. Australia, as I think Senator Watson said, is one the freest countries in the world. With 15 years legal experience, I can say that in areas of family law and in the jurisdiction of the children's courts, more than sufficient regard is had to the rights of the child. For instance, section 64(2) of the Family Law Act provides that in relation to access, custody, guardianship and matters touching on the welfare of a child `the court shall regard the welfare of the child as the paramount consideration'. Indeed, two striking examples in that act illustrate the point that I am making. Previously the wishes of the child in relation to custody and access were regarded when the child was age 14 or more. That has been done away with and the court assesses the child's wishes according to the maturity of the child.

  Furthermore, separate representation is provided for a child in a variety of circumstances. From my experience in the Family Court, it is not uncommon for a child to have separate representation and legal aid can be provided for that to be done. In Western Australia there is ample provision for abused children or neglected children. In fact, under state legislation the relevant department takes out a care and protection order.

  From what I have heard today in this chamber, it would seem that if we do not allow this declaration to stand, all sorts of calamity and chaos will befall children in this country and the whole question of human rights will be thrown into question. That is simply not the case. As I say, Australia has a very good record. When we look at other countries and say, `They have not applied a reservation to the ratification of this convention', we could well say that those countries had better follow us rather than that we follow them. When one looks at the rights of citizens over the age of 18—and the convention applies to people under the age of 18—one sees that there are very few countries in Asia, South America, and especially Africa, that could tell Australia anything about children's rights or human rights in general. I believe that this country is one of the leaders of the world in this area.

  During my time practising in the law, I discovered in a very practical way the problems that face children who are the victims of abuse and neglect. I can relate to the Senate a case where I was representing one child, a female aged 15, who wanted to obtain bail on a charge that she faced, but she could not obtain it because she had nowhere to live. I set out to find her a place to stay so that she could be granted bail. I approached the relevant welfare department and made inquiries there, but I also contacted the relevant voluntary welfare agencies, such as Centacare, the Wesley Central Mission and another one run by the Uniting Church. It was not the government department that got back to me pretty quickly. It was the churches and the voluntary welfare agencies that got back with a secure place to stay for this young girl who was virtually living on the streets. Those are the practical problems we face.

  All the debate that we can have on some convention will not help any child in that sort of position. It will not help an abused or neglected child. I have seen people in my office who have been underprivileged and who have been really down on their luck, and what those people need is economic security and employment. It is only in that way that they can provide for their children or fulfil any sort of duty as a parent. Those are the questions we should be looking at, not some airy-fairy convention and declaration that we think will change the world.

  That leads me to the more practical element of what causes children to come into conflict with the law and end up on the streets? I would like to refer the Senate to a Couchman program on 9 May 1990. It was during the course of that program that a mother, Brenda Rowlands, related a story. It was Peter Couchman who put the question to her as to why she was there and what her concerns were. He asked:

What happened with you and your son?

She said:

Well, I'm most concerned about it because what happened with my son, happened four years ago, pre-Convention; the Convention had nothing to do with it. But my son, from about the age of 15, decided he didn't like school, he didn't like being told what to do as in doing homework or anything else, and he was advised of his rights by his teachers, so he came home at about 15 and a half and said, `Oh, when I'm 16, the law says I can leave home'. The law didn't specifically say he could leave home, but it said that I couldn't get him to come back, which amounted to the same thing.

Couchman said to Mrs Rowlands, `So he left'. She replied, `So at 16, he left'. Couchman went on to say, `Who did he live with? Who became his guardian?'. Mrs Rowlands replied, somewhat sadly, `Well, he left and slept in refuges and knocked around the streets a bit. I don't know what he did because he cut himself off from us, because that is what he wanted to do'.

  Mr Acting Deputy President, I can tell you that that story is not in isolation. I have represented hundreds and hundreds of children in the last 15 years in the Children's Court of Western Australia and that story is familiar.

  What children need is a secure family background and a good education. With that start in life they will have some sort of future. This notion that a child aged 15 or 16 can simply do what this boy did in relation to his family life, strike out and end up on the streets, is absolutely fallacious. The whole question of the role of a parent needs to be looked at in society. We have to look at the duties and responsibilities of parents.

  While I am on that subject I would venture to say that there are a good many people who become parents without understanding the responsibilities that attach to that. That is at the base of the problem of juvenile crime and the problems facing youth today. I can tell the Senate that the majority of children I represented came from a broken background or a situation where they were left to fend for themselves at an early age. It was uncommon, to say the least, to have a child on a charge who came from a secure and stable family environment or who had a good education.

  We know that a person under the age of 18 has special protection from the law for a very good reason. That is because they need nurturing; they need protection; they need assistance; and they need an upbringing to prepare themselves for the future. But trying to translate these sort of rights into the law by saying, `This will be a panacea. It will sort things out. It will suddenly make a lot of children better overnight' is completely without foundation.

  I would like to quote from an article in the August 1992 volume of the Australian Journal of Family Law by Otlowski and Tsamenyi, which referred to article 5:

This article clearly envisages that parents may make decisions on behalf of very young children, not mature enough to make decisions for themselves, and that in respect of older children, parents may provide guidance and direction in decision-making.

This society can only be on a downward trend when we allow children to tell their parents what to do, to have complete control over what their parents say and where parents can only make decisions on behalf of very young children. An adolescent aged 13, 14 and 15 is not equipped to go on to the streets and make decisions for himself or herself. It is for that very reason that we find them addicted to drugs and involved in child prostitution, because they do not have that care and sustenance of their parents.

  When I look at the March 1993 report by the National Children's Bureau of Australia for the Children's Rights Coalition, I see a depiction on the cover which shows two parents looking face to face at a child, obviously theirs—

  Debate interrupted.