Submission of the Australian Government

Submission of the Australian Government

Submission of the Australian Government

Committee on the Rights of the Child - Draft General Comment on Children in street situations

  1. The Australian Government presents its compliments to the United Nations Committee on the Rights of the Child (the Committee) andthanks the Committee for the opportunity to provide a written submission on the draft General Comment. Australia is a longstanding party to the Convention on the Rights of the Child (the Convention) and is firmly committed to upholding its obligations.
  2. In the time available to comment on the draft General Comment, Australia has restricted its comments to the Committee’s views on Article 6(1) of the Convention concerning the right to life. Australia reserves its position in respect of other obligations under the Convention addressed by the draft General Comment.
  3. Australia considers that the draft General Comment purports to extend the obligations of StateParties beyond the legal obligations in the text of Article 6(1) of the Convention. Australia therefore invites the Committee to clarify these statements in the draft General Comment regarding the scope of the legal obligations of State Parties under the Convention.

The widening of the scope of the right to life

  1. Paragraph 1 of Article 6 of the Convention states that ‘every child has the inherent right to life.’ Australia agrees with the principles in paragraph 25 of the draft General Comment that this right ‘concerns the entitlement of individuals to be free from acts and omissions intended or expected to cause their unnatural or premature death’.
  2. The right to life in the Convention is derived from Article6 of the International Covenant on Civil and Political Rights (the ICCPR). This right requires States Parties to ensure that persons are not deprived of life arbitrarily or unlawfully by the State or its agents.The right to life also imposes a duty on StatesParties to take appropriate steps to protect the right to life of those within its jurisdiction and to investigate arbitrary or unlawful killings and punish offenders. This particularly requires States Parties to enact laws that criminalise unlawful killings and that the laws must be supported by law enforcement machinery for the prevention, investigation and punishment of breaches of the criminal law.
  3. Australia is concerned that the Committee seeks to significantly expand the scope of this right in the draft General Comment by indicating that exposure to a wide range of life threatening circumstances, such as traffic deaths or deaths as a result of unsafe sexual practices,fall within the scope of Article6(1).Australia notes that the obligation of a State not to deprive a person of his or her life is not absolute and that the purported expansion of circumstances occasioning death encompassed by Article 6(1) is inconsistent with the correct interpretation of the right as extending only tothe arbitrary deprivation of life.
  4. Australia notes that the Committee seeks to support its proposed broadening of the obligations by referring to the Human Rights Committee’s draft General Comment 36 on the right to life. This draft General Comment has been the subject of much discussion by the Committee with National Human Rights Institutions, civil society and academia but has remained unfinalised over a number of years. Given the draft General Comment remains in a draft form and has not been the subject of discussions with States Parties, who are the duty bearers under international law, Australia suggests that this is not a sound basis for the Committee to seek to propose the expansion of States Parties’ obligations under the Convention.
  5. Furthermore, the draft General Comment draws on the jurisprudence of the Inter-American Court of Human Rights to seek to broaden the right to life to include the deprivation of the right to live with dignity (paragraph 25). This purported expansion is further built on in paragraph 27 of the draft General Comment. Australia’s understanding is that such an interpretationcould broaden the scope of the right to life to include circumstances relating to the realisation of economic and social rights.
  6. In this regard, Australia notes that neither it, nor the vast majority of other States which are StatesParties to the Convention, are States Parties to the American Convention on Human Rights. Furthermore, the right to life in Article 4 of the American Convention is framed in language which is distinctive from that in Article 6 of the Convention and from Article 6 of the ICCPR, a matter which must be addressed by the Committee in its attempt to rely on interpretations of that Convention by the InterAmerican Court of Human Rights.
  7. Many of the examples provided by the Committee in relation to the right to life are more appropriately considered to arise in relation to the realisation of other human rights. For example, substance abuse and environmental factors affecting health have long been considered as issues in the realisation of the right to the highest attainable standard of mental and physical health. In this regard, the Committee may wish to consider the views of the Committee on Economic, Social and Cultural Rights on Article 12 of the International Covenant on Economic, Social and Cultural Rights in GeneralComment 14, The Right to the Highest Attainable Standard of Health (Art. 12) (2000).
  8. Given that issues of substance abuse and environmental factors affecting health are also dealt with by the Committee in the draft General Comment in relation to the right to health in Article24 of the Convention, such an approach is duplicatory. It also has the effect of making the draft GeneralComment longer and more prescriptive than it needs to be. Furthermore, referring to such issues as being matters relevant to the right to life may in the longer term have the effect of undermining the purpose of other human rights – such as the right to an adequate standard of living (Article 27),the right to social security (Article 26) andthe right to the highest attainable standard of mental and physical health (Article 24).
  9. Such an approach would also seek to expand the content of the right to life in Article 6(1) so that it became a general ‘catch-all’ human right – which may similarly have the effect of depriving it of its key content – ensuring that persons are not deprived of life arbitrarily or unlawfully by the State or its agents, the taking of appropriate steps to protect the right to life of those within its jurisdiction and to investigate arbitrary or unlawful killings and punish offenders.
  10. The draft General Comment lists a number of positive measures which it considers States are obliged to undertake to satisfy the right to life with dignity. In Australia’s view, there is no basis in the text of the Convention to impute a right to life with dignity. While Australia agrees with the proposition raised in General Comment 6 that the protection of the right to life requires States to adopt positive measures,[1] Australia considers that only those measures that are intrinsic to the protection of the right to life should be included in the General Comment.
  11. Australia reiterates its support for the work of the Committee and avails itself of this opportunity to renew to the Committee the assurances of its highest consideration.

Australian Permanent Mission to the UN

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[1]General Comment 6, at para 5.

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