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Papua New Guinea[1] [print]

Last edited: December 2005

 

Summary and Analysis

According to Papua New Guinea's Constitution, almost all ratified treaties are binding as international law, but, without further legislative action, do not have the status of municipal law.[2]  In order to enable treaties to be invoked domestically, the legislature must enact legislation beyond the instrument of ratification.  Though the Convention on the Rights of the Child [CRC] was ratified by Papua New Guinea in March of 1993, at least as of 2003 the government had not taken the additional steps to enable the CRC to enjoy the status of domestic law.[3]  Furthermore, the government has done little to incorporate the CRC's principles in existing legislation, pass new child-related legislation, or even disseminate the CRC among the population or even among officials working with children.

After the ratification of the CRC, Papua New Guinea set up the Parliamentary Committee for Monitoring the Situation of Women and Children, but the committee met only once or twice.[4]  The Working Committee for the Rights of the Child was established, but it has no budget and has met only intermittently.[5] Also, a National Council of Child Welfare in the Department of Home Affairs was created by the Child Welfare Act, but Papua New Guinea reported to the Committee on the Rights of the Child in 2003 that the Council, “has only functioned sporadically over the past two decades and has been totally non-operational over the past three years.”[6]  Papua New Guinea does have a formal child protection system consisting of child welfare officers, the Office of Child Welfare, and the Children's Court.  Several non-governmental organizations also work in the child protection arena.  Protection proceedings are governed mainly by the Child Welfare Act of 1961, the Child Welfare Regulations of 1962, and the Infants Act of 1956. 

Article 12 of the CRC is not implemented in Papua New Guinea's legislation.  Though the Constitution of Papua New Guinea provides that, “every citizen to be able to participate, either directly or through a representative, in the consideration of any matter affecting his interests or the interests of his community,” it does not specify in either the Constitution or child welfare legislation that this right applies to children.[7]  The Child Welfare Act mandates that, unless it would be dangerous or detrimental to the child's health or the child is not sufficiently mature, a child gives evidence either to the court or to the judge in private.  However, there is no indication that this “evidence” includes the wishes of the child.  The Infants Act asserts that the Act does not prevent the Court from ascertaining the wishes of the child.  Still, the consultation of the child is clearly discretionary, not mandatory.

In its report to the Committee on the Rights of the Child, Papua New Guinea listed several factors that impede the full implementation of the CRC.  First, there have been frequent administration changes, and with each came changes in government agencies and responsibilities, decreasing their functionality and efficiency.[8]  Also, the government has devoted inadequate resources to children-related agencies, mainly due to improper financial management, and in many villages, children have no access to basic social services.[9]  Furthermore, Papua New Guinea reports that there is not a strong tradition of reporting child abuse to authorities, which interferes with welfare officers' ability to find and help children in need.[10]  In light of Article 12 of the CRC, Papua New Guinea reports that it is not customary for parents or indeed any adults to consult a child in matters.  In fact, often children are forbidden to express their views.[11]

 

Sources of Law (In Order of Authority)

Statutes

Infants Act[12]

2. Effect of Act.

(1)  This Act does not restrict the jurisdiction of the Court to appoint or remove a guardian or otherwise in respect of infants.

(2)  This Act does not—

(a)  affect the power of the Court to consult the wishes of the infant in considering what order ought to be made; or

(b) diminish the right which an infant possesses to the exercise of his or her own free choice.

Child Welfare Act[13]

107.  Evidence of child too ill to attend court.

(1)  Where a magistrate is satisfied by the evidence of a medical practitioner that the attendance before a court of a child in respect of whom an offence under this Act is alleged to have been committed would be injurious or dangerous to the health of the child, the magistrate may take the written statement of the child.

(2)  Where, in any proceedings in relation to an offence under this Act, a court is satisfied by the evidence of a medical practitioner that the attendance before the court of a child in respect of whom the offence is alleged to have been committed would be injurious or dangerous to the health of the child, a deposition of the child or a statement taken under Subsection (1) may be received in evidence, and has effect as if it were proved that—

(a)  the child was so ill as not to be able to travel; or

(b)  in the case of a statement—there was no reasonable probability that the child would ever be able to travel or give evidence.

(3)  Notwithstanding Subsection (2), a deposition or statement of a child shall not be received in evidence unless the court is of the opinion that the child—

(a)  is possessed of sufficient intelligence to justify the reception of the deposition or statement; and

(b)  understands the duty of speaking the truth.

(4)     Where, in any proceedings in relation to an offence against this Act, a court is satisfied by the evidence of a medical practitioner that—

(a)  the attendance for the purpose of giving evidence before the court of a child in respect of whom the offence is alleged to have been committed would be injurious or dangerous to the health of the child; and

(b)  the evidence of the child is not essential to the just hearing of the case; the case may be proceeded with and determined in the absence of the child.

International Law

Convention on the Rights of the Child, [14] ratified Mar. 2, 1993

Article 12

1. 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.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

 



Endnotes

[1] This page is also available as a .pdf Document, and Word Document.

[2] Papua N.G. Const., §117 available at http://www.paclii.org/pg/legis/consol_act/cotisopng534/.

[3] Initial reports of States parties due in 2000: Papua New Guinea, Committee on the Rights of the Child, Jul. 21, 2003, §1, U.N. Doc. CRC/C/28/Add.20 available at http://www.unhchr.ch/tbs/doc.nsf, available at here, and also as .pdf Document, and also as Word Document.

[4] Id., §5.

[5] Id., §8,9.

[6] Id., §6.

[7] Papua N.G. Const., §2(9), supra note 1.

[8] Initial reports of States parties due in 2000: Papua New Guinea, §21, supra note 2.

[9] Id., §29, 30.

[10] Id., §136.

[11] Id., §153.

[12] Infants Act, §2

[13] Child Welfare Act, §107

[14] G.A. Res. 44/125, U.N. GAOR, 44th Session, Supp. No. 49, U.N. Doc. A/44/736 (1989).

 

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