Wilson, Ronald --- "Foreword" [1996] AUJlHRights 1; (1996) 2(2) Australian Journal of Human Rights 169

Foreword

Sir Ronald Wilson

The welfare of, and respect for, children and young people are social and moral imperatives in the construction and maintenance of any civil society. The task that these obligations present to society may be reduced to the simple but profound question of how to promote this ideal in practice. In the pursuit of this aim the law has a significant role to play. Such use of the law is, of course, not new, but it can be fairly said that the form and interpretation of the stated objective is quite different today from that which held sway 20 or even 10 years ago. The heightened awareness of human rights obligations in general, and of children's rights in particular, at both the international and domestic levels, has presented the law with a pair of challenges. At one level , there is the challenge of how best to express such rights in law. At a more fundamental level, however, there is also debate over whether legally expressed rights are indeed the appropriate means by which to secure a better deal for the young. Such concerns, as the essays in this symposium reflect, continue to occupy the heart of the debate over the law and the welfare of children and young people.

In terms of practical legal initiatives there are presently a number of major national reviews and inquiries under way that together emphasise both the importance and currency of the legal protection, promotion and facilitation of children's welfare. This thematic issue of the Australian Journal of Human Rights is therefore most appropriately timed. There are, in fact, a multiplicity of such reviews currently being undertaken at state as well as the federal level - including a number of reviews of the juvenile justice systems - but I think that it is sufficient here to detail just the most prominent national ones.

Unquestionably, the most significant catalyst for the recent expansion of the debate over children and the law has been the coming into force of the Convention on the Rights of the Child (CROC), which has now been signed by some 180 countries. The CROC gives voice to the elemental guarantee that in all actions concerning children, whether taken by public or private social welfare bodies, the best interests of the child shall be a primary consideration. Australia was a prominent figure throughout the protracted discussions which led to the establishment of the CROC in 1989, and it was one of the first nations to sign the Convention in August 1990. In keeping with domestic constitutional convention, ratification occurred (some 4 months later) only after the Commonwealth Government was `satisfied' that Australian law (in all jurisdictions) complied with the provisions of the Convention. Though one cannot reasonably expect the Government to anticipate every manifestation of this Convention - or indeed, for that matter, any international treaty - that might impact on Australian law, it is clear that in relation to CROC our law is deficient in a number of respects.

Australia's first report to the UN Committee on the Rights of the Child on the compliance of Australian law with the CROC has just been submitted - albeit three years late. Regrettably, the report tends to recognise only obliquely certain inconsistencies between Australian law and the Convention, and even then, not all such faults. A parallel report compiled by the Children's Rights Coalition in 1993, which is also to be submitted to the UN Committee, reveals a significant number of transgressions of the Convention by Commonwealth, State and Territory laws. These include, for example, issues relating to substitute care, health care, access to justice and education, and, social security provision. The fact that these problems are soon to be formally exposed in an international forum adds to the pressing need for law and policy-makers throughout Australia to respond accordingly.

In August 1995 the Commonwealth Attorney-General presented to the Australian Law Reform Commission and the Human Rights and Equal Opportunity Commission jointly a set of terms of reference to inquire into "matters relating to children and young people and the legal process". In pursuing this broad aim the two Commissions are reviewing children and the criminal process; children in care; children as consumers of public services and in the market place; children and family law; and children and education. The Commissions, furthermore, are expressly required to have regard to Australia's obligations under the CROC in the execution of their inquiry.

The first round of specialist consultations related to the inquiry took place just before Christmas 1995 and further consultations with schools, young people and the general public will take place throughout 1996. An `Issues Paper' canvassing the sorts of questions raised by the inquiry is due to be published early in 1996; a `Draft Recommendations Paper' containing detailed examination of these issues will appear in late 1996, and the Commissions' final report with recommendations is due to be submitted by mid 1997.

Two children's rights initiatives have also recently been suggested by the National Children's Youth Law Centre (NCYLC). First, in a discussion paper released earlier this year, the NCYLC outlined a proposal for the establishment of a national Commissioner for Children whose primary functions would be to consult with young people; to act as advocate of their rights and needs; to assist young people to express their views directly to decision-makers, and, broadly to scrutinise laws and legislative proposals to ensure that they do not transgress the CROC or otherwise disadvantage young people. It may be added that the HREOC has also been pressing the Government for the appointment of a Children's Rights Commissioner. Second, the NCYLC has prepared a Charter of Children's Rights which, in effect, supplements the CROC by fleshing out the bones of the Convention with details as to how the main rights might be applied in practice. In particular, the Charter is intended to operate as a gauge against which the creation and implementation of laws and policies might be measured.

On a more specific issue, the HREOC is currently conducting a National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children and their Families. The extraordinary and devastating consequences of the systematic separation of indigenous children from their families in the name of assimilation are yet to be fully documented let alone understood. But it is estimated that the number of people alive today who were subject to the practice is around 100,000. The national inquiry, which is scheduled to run from August 1995 to December 1996, is seeking to trace the history of the laws, policies and practices that effected the separations; to assess the adequacy of current laws and practices relating to Aboriginal and Torres Strait Islander people who have been affected by separation and to make recommendations as to how those people might be compensated and assisted, and, to examine current laws and policies relating to the placement and care of Aboriginal and Torres Strait Islander children. This latter term of reference will focus on indigenous children in welfare and juvenile justice jurisdictions with particular reference to the involvement of families and communities in the disposition process. Whilst cumulatively these current reviews and inquiries by no means cover the field of the needs and concerns of children and young people in Australia today, they are surely illustrative of a sharpened appreciation of the issues involved and a willingness, at least, to investigate what the law may or may not be able to do in meeting the problems that clearly exist. Within this context the publication of this specialist issue of the AJHR could not be more timely.

Sir Ronald Wilson KBE, CMG, AC

President of the Human Rights and Equal Opportunity Commission.