Hot Topics - Issue 65: Human Rights - Legal Information Access ...

ausTralia’s TreaTy
TaBlinG arranGeMenTs
treaty text
cabinet or Ministerial agreement
Federal executive council approval
signature
consultations continue on final treaty action,
including any necessary legislation or changes to
practice, with state and territory governments,
peak industry bodies and ngos.
cabinet or Ministerial agreement
national interest analysis (nia) prepared.
states and territories consulted in the
development of nias in which they have a
major interest and views reflected.
Relevant number of copies of a treaty text and
nia submitted to treaties secretariat for
tabling in parliament.
table treaty in parliament at least 15 sitting days prior
to australia taking binding action.
Joint parliamentary committee on treaties
may consider treaty.
Final treaty action through exchange of notes,
ratification, accession etc. following Federal executive
council approval where appropriate.
HOT TiP
‘exchange of notes’ is a form of agreement generally
used for inter-governmental agreements of lesser
importance. the exchange can also be used to modify,
amend, terminate or extend an existing bilateral
agreement. notes are usually approved in draft by
both governments before exchange, which is usually
conducted between a Minister and the ambassador, high
commissioner or chargé d’affaires.
remains the only democracy in the world not to have
passed a law directly implementing the ICCPR.
Australia has implemented some of its human rights
treaty commitments, and international human rights
law has a direct impact on our daily lives. For example,
the Commonwealth Racial Discrimination Act 1975
implements the Convention on the Elimination of All
Forms of Racial Discrimination into Australian law,
and the Commonwealth Sex Discrimination Act 1984
implements some (but by no means all) of the rights for
women contained in the Convention on the Elimination
of All Forms of Discrimination Against Women.
Australia has been much slower in implementing other
international human rights obligations. For example,
there is no national legislation that implements our
obligations under the Convention on the Rights of the
Child. Australia has announced that it considers the
rights protected by the ICESCR to be adequately
protected under existing Australian law, a claim disputed
by some commentators.
Australia has not effectively implemented the rights
protected under the ICCPR. In 1986 the Human Rights
and Equal Opportunity Commission (HREOC) was
established in response to Australia having ratified
the ICCPR in 1980: see ‘Note’ on page 19. Although
HREOC has powers to investigate alleged violations of
the ICCPR, it has no powers of penalty or enforcement.
This is insufficient to give effect to the requirement of
the ICCPR that a ratifying state ensure that everyone
has access to the rights set out in the treaty, together
with effective remedies for breaches.
federal GOvernMenT POsiTiOn On
HuMan riGHTs
In November 2007, a new Federal Government was
elected under Prime Minister, the Honourable Kevin
Rudd MP. The new Rudd Government announced that
it would support a national community consultation
on the most appropriate methods of protecting human
rights. The issue of a Bill of Rights of some sort has,
until recently, been avoided as a sensitive political issue
in Australia. A direct response to any call for such a
guarantee has been typically answered with a claim
that the rights protected by the ICCPR and ICESCR
are adequately protected by the common law, existing
legislation, and the democratic nature of government.
Many commentators disagree, and Australia is almost
alone in the world in maintaining this view. In Australia,
this view has become more keenly contested in recent
years.
Internationally, the Rudd Government has signalled a
greater level of engagement in multilateral processes,
including the UN. To understand why this is noteworthy,
it is necessary to understand a little of the history
preceding the election of the Rudd Government.
During the time of the Howard Government (1996­
2007), the Australian Government expressed concern
about the UN human rights system. For example,
it characterised the CERD Committee’s approach to
Australia’s periodic reports in 2000 as a ‘blatantly
political and partisan approach’. The Howard
Government also had concerns about what it called the
‘burdensome reporting requirements imposed by these
[human rights] committees’, and an ‘over-emphasis on
non-governmental submissions (which) has led to a
the operation of international human rights law in australia 21