Published online by Cambridge University Press: 09 January 2025
This chapter analyses the indirect judicial application of the Convention on the Rights of the Child (the Convention) in Australia, which is a federal state of dualist tradition. The chapter demonstrates the vulnerability of the Convention in a system of parliamentary supremacy where the Convention is not legislatively incorporated and where the Parliament can make laws contrary to it. In this context, the traditional methods of engaging with the Convention have yielded limited results where there was tension with the domestic law, but were more impactful when there was convergence between the two sets of norms, as seen in the family law context. The Convention is also weakened by the absence of a federal human rights statute. The case study of the application of the Convention by the Supreme Court of Victoria shows that human rights statutes that contain child-specific provisions facilitate the judicial application of the Convention. The chapter also illustrates the creativity of the courts, which occasionally engaged with the Convention in sui generis ways, not explicitly acknowledged as formal methods of engagement.
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