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Children’s Rights: Australia- Part 1

  12/26/2013

Executive Summary


Australia is a signatory to all significant treaties that impact on children’s rights.  The rights and protection of children are governed by both Federal and state and territory law. Persons below the age of eighteen are generally considered children.
Children may be able to give consent to medical procedures where they are either over a statutory age (fourteen to sixteen depending on the jurisdiction), or, of sufficient maturity that they are able to comprehend the procedure and give informed consent.
Children below the age of ten are unable to be charged with a criminal offense and children between the ages of ten to fourteen have a refutable presumption that they are incapable of forming the necessary criminal intent for an offense.
Children below the age of seventeen may not volunteer to join the armed services.
Education of children is compulsory.  The age between which children must be educated varies across jurisdictions but is generally between the ages of five to sixteen.
Australian children have a right to access health care via Australia’s universal health insurance program and all jurisdictions have additional programs to encourage children and young persons to seek medical care. (PDF, 162KB)

Introduction

Australia has a federal constitutional system in which legislative, executive, and judicial powers are shared or distributed between the Federal Government and those of the six States – New South Wales (NSW), Victoria (Vic), Queensland (Qld), South Australia (SA), Tasmania (Tas), and Western Australia (WA) – and two internal self-governing territories – the Australian Capital Territory (ACT) and the Northern Territory (NT).
Australia includes a number of external territories. Of these only Norfolk Island and Territory of Cocos (Keeling) Islands and the Territory of Christmas Island, are inhabited.
Of these external territories only Norfolk Island is essentially self-governing (for example, Norfolk Island has its own health and social security systems); the Federal Government, however, retains a veto power over legislation in some areas.
Thus the other external territories (and Norfolk Island in some areas) are governed by federal legislation.  In some instances the Federal government has adopted Western Australian legislation and entered into an agreement with the Western Australian government for the Western Australian government to administer the adopted legislation and provide government services to some territories.[1]

Who Is a Child?

Under Australian law the age of majority is eighteen;[2] in many areas of law, however, a person under the age of eighteen may make decisions or be deemed old enough to be legally responsible for their actions.

Government Services for Youths

Federal, state and territory governments offer a range of services specifically aimed at children and young people.  Services range from health services to and projects to increase community participation by children and young people.  Details of the programs are available on the Federal government department of Health and Ageing website.[3]
Each state and territory has a government office or statutory authority responsible for the coordination of government policies affecting children and youths.[4]
Three states have established independent bodies to review and advise on issues relevant to children.  These are: New South Wales (Commission for Children and Young People);[5] Queensland (Commission for Children and Young People and Children’s Guardian);[6] and Tasmania (Commissioner for Children).[7]
Within the Federal government this role is assumed by the Human Rights and Equal Opportunity Commission (HREOC) a national independent statutory government body established under the Human Rights and Equal Opportunity Commission Act 1986 (Cth)(HREOC Act).[8]

Implementation of International Rights of the Child

Among other relevant treaties and agreements the following child-specific treaties have entered into force in Australia:
  • Convention on the Civil Aspects of International Child Abduction [1987] ATS 2. Entry into force for Australia: 1 January 1987.[9]
  • Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (The Hague, 29 May 1993). [1998] ATS 21. Entry into force for Australia: 1 December 1998.[10]
  • Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations. [2002] ATS 2. Entry into force for Australia: 1 February 2002.[11]
  • Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect to Parental Responsibility and Measures for the Protection of Children (under the auspices of the Hague Convention) [2003] ATS 19. Entry into force for Australia: 1 August 2003.[12]
  • Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict [2006] ATS 12: Entry into force for Australia: 26 October 2006.[13]
  • International Convention for the Suppression of the Traffic in Women and Children, 1921. (ATS 1922 no. 10). Entry into force for Australia: 28 June 1922.
  • Protocol to amend the Convention for the Suppression of the Traffic in Women and Children of 30 September 1921, and the Convention for the Suppression of the Traffic in Women of Full Age, 1933, (ATS 1947 No. 17). Entry into force for Australia: 24 April 1950.
  • Convention on the Rights of the Child [1991] ATS 4. Entry into force for Australia: 16 January 1991.[14]
  • Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography [2007] ATS 6. Entry into force for Australia: 8 February 2007.[15]
  • Protocol To Prevent, Suppress And Punish Trafficking In Persons, Especially Women And Children, Supplementing The United Nations Convention Against Transnational Organised Crime 2000 [2005] ATS 27. Entry into force for Australia: 14 October 2005.[16]

Child Health and Social Welfare

Family Law

In determining family law matters the Family Court will consider the wishes of a child when determining what is “in the best interests of the child.” The “best interests of the child” will be the court’s paramount consideration when making parenting, location and recovery orders.[17]
In some jurisdictions children’s rights and the child’s right to participate in decision making have been specifically incorporated into legislation.  For example: in Queensland, a ‘Charter of Rights for Child in Care’ is included as a schedule to the Child Protection Act 1999 (Qld),[18] NSW has non-binding principles for children to participate in decision making regarding their care and protection.[19]

General Access to Health Care

Australia has a universal health insurance program called Medicare.[20]  People (including children) who reside in Australia (excluding Norfolk Island) are eligible to participate in Medicare if they:
  • hold Australian citizenship;
  • have been issued a permanent visa;
  • hold New Zealand citizenship; or
  • have applied for a permanent visa (excluding an application for a parent visa).
Norfolk Island does not participate in the Medicare program.
Medicare is funded by the Federal government from general revenue and via a taxation surcharge for those earning above a specified income threshold.  This surcharge is discounted if the taxpayer has private health insurance.
Medicare provides free medical treatment as a public patient in a public hospital and free or subsidized treatment for some medical and optometrist services and dental care.  Medicare may also support (via partial rebate of practitioner’s fees) treatments by allied health professionals such as physiotherapists, dietitians, and speech pathologists.[21]
Australian states and territories have the primary responsibility for Australia’s public hospital systems; the Federal government, however, has the power to pass legislation for sickness and hospital benefits and therefore contributes to the funding of hospitals.[22]  Licensing of private hospitals is undertaken by states or territories while some regulatory power is retained by the Federal government via its power to authorize the hospital to receive health insurance benefits.[23]
Federal funding of state and territory hospitals is governed by Australian Health Care Agreements signed between each state or territory and the Commonwealth.[24]  These agreements identify the amount of Federal funding that will be provided to the state or territory’s hospital system and require that: public hospital services be provided free of charge to public patients; access to public hospital services be on the basis of clinical need and within a clinically appropriate period; and that equitable access to public hospital services be provided regardless of geographical location.[25]
Australia has several specialist hospitals that are dedicated to provide pediatric and neonatal care.[26]

Access by Youths to Medical Services

All states and territories have initiatives designed to encourage children and young people to seek healthcare.  In many instances individual health centers will not require a child or young person to pay or to provide their Medicare card (thus permitting children or young people to seek healthcare in the absence of parental knowledge).[27]
The Federal, state, and territory governments have (in conjunction) undertaken several immunization programs that are directly relevant to children and young people.  These include:[28]
  • human papillomavirus (HPV) vaccination program;
  • meningococcal C program;
  • chickenpox (varicella) program;
  • pneumococcal program; and
  • Hepatitis A program (for Aboriginal and Torres Strait Islander children in the NT, WA, SA and QLD).
The following vaccines are recommended and provided free of charge:
The following vaccines are also free of charge for Aboriginal and Torres Strait Islander children:
  • pneumococcal; and
  • Hepatitis A.





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