International instruments

2.2 Under its constituting legislation, the ALRC is directed to have regard to ‘all of Australia’s international obligations that are relevant to the matter’.^[1] A number of international conventions are relevant to the legal framework in relation to violence against women and children in the family. In particular, these reflect the acknowledgment that violence against women and children is a violation of human rights.

2.3 Such international instruments do not become part of Australian law until incorporated into domestic law by statute.^[2] But, as noted by the High Court in Minister for Immigration and Ethnic Affairs v Teoh, a convention can still assist with the interpretation of domestic law:

The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law. But the courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into our domestic law.^[3]

Universal Declaration of Human Rights

2.4 The Universal Declaration of Human Rights was adopted and proclaimed by the General Assembly of the United Nations on 10 December 1948, in the wake of the Second World War, and as the first international expression of rights to which all human beings are entitled.^[4] Comprising 30 articles, it provides the backdrop for a number of later instruments which embody and expand upon its provisions.

International Covenant on Civil and Political Rights

2.5 The International Covenant on Civil and Political Rights (ICCPR), described as ‘one of the most important human rights conventions of the United Nations era’,^[5] was adopted by the United Nations General Assembly on 16 December 1966 and ratified by the Australian Government in 1980. In making any proposals or recommendations the ALRC is directed to ensure that they are consistent, ‘as far as practicable’, with the ICCPR.^[6]

2.6 A number of articles of the ICCPR are of particular relevance in the context of a consideration of family violence. Article 23 provides that ‘[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State’;^[7] and art 17 includes protection for the family in stipulating that:

No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.^[8]

2.7 With respect to children, art 24 provides that:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

2.8 Other key rights are the right to a ‘fair and public hearing’ in art 14 with minimum procedural guarantees in the case of criminal charges;^[9] and the right in art 26 that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law’.

2.9 In the context of family violence, there are evident tensions in the way that these articles—and the expectations they engender—might operate. The person accused of committing family violence is entitled to a fair hearing (art 14); the family itself, as a fundamental unit of society, is entitled to protection (art 23); and the child is entitled to the expectation of protection by his or her family and the state (art 24). When, for example, a child is the subject of abuse by a family member, each of these articles, and their inherent expectations, may be in apparent conflict. Similarly, where a woman is the subject of family violence, the protection of the family requires the family to be open to some public scrutiny—notwithstanding the right to privacy and the protection of the home (art 17).

Convention on the Elimination of Discrimination Against Women

2.10 The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)^[10] specifically targets discrimination against women. CEDAW came into force for Australia on 27 August 1983.^[11]

2.11 CEDAW defines discrimination as any distinction, exclusion or restriction which prevents the equal exercise or enjoyment by women of human rights and fundamental freedoms ‘in the political, economic, social, cultural, civil or any other field’.^[12] It supplements the anti-discrimination provisions in the ICCPR, amongst others.^[13] In particular it builds upon art 26 of the ICCPR, that

the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.^[14]

2.12 The importance of a human rights approach to family violence in this Inquiry and one embracing the human rights of men as well as women was emphasised in some submissions,^[15] while the role of CEDAW in counterbalancing ‘historical discrimination’ was also noted by another:

reference to CEDAW is not to exclude but to redress inherent discrimination and imbalances as they manifest themselves in law as well as the rest of society.^[16]

2.13 CEDAW has been called ‘an international bill of rights for women’^[17] and described as representing ‘a commitment by the international community to equality in the enjoyment of human rights’.^[18]

2.14 In 1993 the ALRC was given Terms of Reference on equality before the law as part of the Australian Government’s ‘New National Agenda for Women’ requiring the ALRC to consider whether laws should be changed or new laws made to remove any unjustifiable discrimination with a view to ensuring women’s full equality before the law. Two reports resulted.^[19] The ALRC noted in particular that:

As a party to [CEDAW], Australia has undertaken to pursue ‘by all appropriate means and without delay a policy of eliminating discrimination against women’.^[20]

2.15 The ALRC also noted that as a party to the ICCPR, considered below, ‘Australia must guarantee the equal protection of human rights to men and women without discrimination and equality before the law’.^[21]

2.16 The ALRC concluded that a significant aspect of gender inequality—and therefore of discrimination in contravention of CEDAW—was ‘women’s experience and fear of violence’.^[22] This was not a new discovery. As noted by Young and Monahan, while academic commentators had been writing about the dynamic of violence in gender inequality ‘for some years’,^[23]

The ALRC’s distinctive contribution was to raise the general public and government awareness of the issue and to act as a mouthpiece for the views of women across Australia.^[24]

2.17 A further aspect of inequality highlighted by the ALRC was the impact that violence has on women’s access to the legal system:

Violence directly impedes women in enforcing their legal rights through its destructive impact on their personal confidence and because they may fear retaliation.^[25]

2.18 Although CEDAW does not expressly mention violence as a form of discrimination, parties are asked to report on the protection of women against the incidence of all kinds of violence, ‘including sexual violence, abuses in the family, sexual harassment at the work place, etc’.^[26] So, for example, where art 16 calls for the elimination of discrimination in marriage and the family, family violence ‘is clearly a form of discrimination which denies women equality’.^[27]

Declaration on the Elimination of Violence against Women

2.19 The Declaration on the Elimination of Violence against Women was adopted by the General Assembly of the United Nations on 20 December 1993, to complement and strengthen CEDAW. The commencing articles of the declaration define violence against women:

Article 1

For the purposes of this Declaration, the term ‘violence against women’ means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.

Article 2

Violence against women shall be understood to encompass, but not be limited to, the following:

(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation;

(b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.

2.20 In 1999, the General Assembly designated 25 November as the International Day for the Elimination of Violence against Women.

Convention on the Rights of the Child

2.21 The United Nations Convention on the Rights of the Child (CROC)^[28] has been described as ‘the most comprehensive statement of children’s rights ever drawn up at the international level’.^[29] Following ratification by Australia on 17 December 1990, CROC has proved of significance in ‘shaping the first wave of reforms to Pt VII of the Family Law Act 1975 (Cth) effected under the Family Law Reform Act 1995 (Cth)’.^[30]

2.22 CROC sets out the full range of human rights—civil, cultural, economic, political and social rights—pertaining to children under 18 years of age.^[31] CROC spells out that children everywhere have the right:

• to survival;^[32]
• to develop to the fullest;^[33]
• to protection from harmful influences, abuse and exploitation;^[34] and
• to participate fully in family, cultural and social life.^[35]

2.23 The four core principles of the Convention are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. In a joint 1997 report, the ALRC and the Human Rights and Equal Opportunity Commission stated that:

CROC recognises that children, as members of the human family, have certain inalienable, fundamental human rights. It emphatically endorses the proposition that the family is the fundamental environment for the growth and well-being of children and states that, for the well-being of society, the family should be afforded protection and assistance so as to fully assume its responsibilities. At the same time, it recognises that children need special safeguards and care where the family does not or cannot assume these roles.^[36]

2.24 A number of the provisions of CROC are particularly relevant to this Inquiry. First, ‘the best interests of the child’ is a central principle, as set out in art 2:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.^[37]

2.25 Secondly, the maintenance of contact between a child and his or her parents is affirmed, subject to the ‘best interests’ principle, in art 12:

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.^[38]

2.26 Of particular note is the rider in the above provision—that separation of a child from a parent may be in the child’s best interests where the child is subject to abuse or neglect by a parent. However, notwithstanding this qualification, it is also stated that:

States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.^[39]

2.27 The risk of violence and abuse to a child is given specific attention in art 19, which requires States Parties to

take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.^[40]

2.28 CROC also includes articles concerning protection from sexual exploitation and sexual abuse;^[41] and promoting physical and psychological recovery from, amongst other things, any form of neglect, exploitation or abuse.^[42]

2.29 The child’s right to be heard in proceedings involving him or her is also addressed:

States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.^[43]

2.30 The right to express his or her own views may be satisfied by being given an opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of applicable national law.^[44]

2.31 These articles provide the base guidelines for children’s interactions with legal processes. Some aspects of CROC, however, may need further consideration—particularly in relation to the Family Law Act—such as art 12, dealing with the child’s right to be heard in proceedings affecting it, either directly, or indirectly through a representative or appropriate body.^[45] One stakeholder referred to the arguable tension between the rights:

That tension arises if a paternalistic approach is taken, namely that children are innately harmed by exposure to the fact or the detail of litigation between adults they love or respect. There is no evidence that this is the case, and the autonomous or rights-based view of children says that (like adults) each child understands as much as they are capable of understanding and what they don’t know won’t hurt them: it is the fact of the aggression between adults or the violence or neglect in the home that causes the harm. Giving effect to both these two rights means that [Separate Representatives] have not one, but two jobs:

1. To provide the actual opportunity for the child to be ‘heard’ regardless of the age and maturity of the child and that their views are given due weight in accordance with the age and maturity of the child; and

2. To ensure that other evidence is adduced to help the tribunal reach a decision in the [best interests of the child].^[46]

2.32 In B and B: Family Law Reform Act 1995, the Full Court of the Family Court expressed the view that CROC

must be given special significance because it is an almost universally accepted human rights instrument and thus has much greater significance for the purposes of domestic law than does an ordinary bilateral or multilateral treaty not directed at such ends.^[47]

2.33 The relationship between CROC and the Family Law Act has been considered by the High Court in the context of mandatory detention of children in immigration detention centres when proceedings for the release of two boys were brought under pt VII of the Family Law Act.^[48] The High Court held that the welfare power was constrained by the constitutional head of power under which it was enacted and, accordingly, that the Family Court had no jurisdiction either to order the release of the children from detention or to make general orders concerning the welfare of detained children.

Convention on the Civil Aspects of International Child Abduction

2.34 The 1980 Hague Convention on Civil Aspects of International Child Abduction (Hague Convention), to which Australia became a signatory on 1 January 1988,^[49] sought to provide for the return of children under the age of 16 years who have been wrongfully removed from, or retained outside, their country of habitual residence.^[50]

2.35 The Convention sets up a Central Authority in each country to deal with requests for the return of children taken to or from each country. Signatories commit to the prompt return of children to the country in which they habitually reside so that issues of parental responsibility can be resolved by the courts in that country.

2.36 The Convention was implemented in Australia through s 111B of the Family Law Act and the Family Law (Child Abduction Convention) Regulations 1986 (Cth). The Secretary of the Attorney-General’s Department is designated as the Commonwealth Central Authority under the Convention with responsibility for coordinating incoming and outgoing requests to and from overseas Central Authorities and liaising with the relevant state or territory Central Authority in Australia to perform Australia’s obligations under the Convention.^[51]

2.37 Article 1 sets out the objects of the Convention:

a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

2.38 There are a number of exceptions to the requirement to return the child set out in art 13, in particular where:

a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention;

b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.

2.39 While these provide some qualification to the ‘prompt return’ principle, the overall emphasis in the Hague Convention is not on ‘the best interests of the child’—language used, for example, in CROC—but rather on the ‘rights of custody and access’—namely, rights of the parents. In a study on Hague Convention cases in Australia, Deborah Fry remarked of this different emphasis that:

While the Convention is generally praised for providing hope and redress for many parents in providing the prompt return of abducted children, it is also criticised for failing to adequately balance the needs and interests of particular children against the needs and interests of all children everywhere. The Hague Convention does not rest upon consideration of the principle of the ‘best interests of the child’ but rather purports to uphold the best interests of children collectively by deterring international abduction. It is Utilitarian at its philosophical base, aimed at enforcing the greatest good for the greatest number.^[52]

2.40 The Full Court of the Family Court summarised the effect of the Hague Convention and regulations in In the Marriage of Emmett and Perry:

The Family Law (Child Abduction Convention) Regulations impose upon the court a primary obligation to promptly return children wrongfully removed or retained. Matters coming before this court are not to be treated as competing claims for interim custody. Proceedings under the regulations are to be heard in a prompt and summary way and it is only in exceptional circumstances that a court would give consideration to refusing the application of the Central Authority for the return of the children. Regulation 16 does vest in the court a discretion to refuse to return children if certain conditions are established. The onus of establishing those preconditions rests upon the party resisting the order for return of the children and that onus must necessarily be a heavy one.^[53]

2.41 Hague Convention matters may sit at the intersection of Family Law Act, child protection and family violence laws. For example, where there has been violence to the mother of the child by her partner, and the child has witnessed the violence, how might this be considered in relation to a Hague Convention application for the recovery of the child? How difficult is it for a mother who seeks to escape violence by leaving her partner to argue that the exposure of the child to the violence on her ‘would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation’? Aspects of these questions relevant to this Inquiry are considered in Chapter 17.