1 Introduction to Human Rights in Australia
The six British colonies of Australia united to form a federation in 1901, with those colonies becoming six autonomous state governments alongside a new Commonwealth federal government. There are also two self-governing territories.
Australia is a stable liberal democracy, with a long-standing commitment to democratic values, the rule of law and the separation of powers. Political violence is essentially absent. While Australia is a comparatively wealthy, a developed country with numerous social security entitlements for those in need, there is growing income inequality.1
Australia’s Constitution is contained in section 9 of an Act of the Imperial British Parliament (Commonwealth of Australia Constitution Act 1901 (Imp)). Australia now is fully independent,2 although it remains a constitutional monarchy.
Australia’s Constitution does not contain a Bill of Rights. There are limited guarantees with respect to freedom of religion, trial by jury, and compensation if one’s property is compulsorily acquired.3 There is also an implied constitutional freedom of political communication and an implied constitutional right to vote.4 However, Australia has an entrenched traditional attachment to parliamentary sovereignty; constitutionally-protected rights undermine parliamentary sovereignty as they significantly constrain the powers of Parliament, the democratically-elected arm of government, and enhance those of the
There is no comprehensive national human rights statute, a fact that has often been criticised by the UN treaty bodies.6 However, comprehensive rights-protective statutes have been adopted in three jurisdictions – the Australian Capital Territory (act), Victoria and Queensland.7
Australia’s apex court, the High Court of Australia, has played an important role in protecting the human rights of various parties, including criminal appellants, asylum seekers and those seeking to vindicate implied constitutional rights.8 However, the constitutional limitations of its role preclude the Court from being a consistent protector of rights.9
The principal domestic institution responsible for the protection and promotion of human rights is the Australian Human Rights Commission (ahrc), Australia’s national human rights institution. The ahrc is an independent statutory authority with many functions including the conciliation of complaints under federal anti-discrimination law; inquiries into human rights issues; an educational role; and the promotion of human rights generally.10 Its human rights remit is based on Australia’s international treaty obligations. It has ‘A status’ under the Principles Relating to the Status of National Institutions.11 Relations between the ahrc and the federal government soured considerably from 2013 to 2017, prompted by the then new government’s displeasure over the timing of an ahrc inquiry into immigration detention.12 Relations
The ahrc has counterparts in the eight state and territory jurisdictions. Other executive institutions such as Ombudsman Offices in each jurisdiction play an occasional rights-protective role, as do parliamentary inquiries and Royal Commissions of Inquiry.
Australia currently faces numerous human rights challenges, including the situations of detainees, those with disabilities and/or mental illness and the homeless.14 Indigenous people continue to experience lower socio-economic conditions (for instance, regarding health, housing and education), discriminatory attitudes, as well as a much larger rate of incarceration.15
The most prominent human rights issue has concerned asylum seekers arriving by boat. Since the 1970s thousands of refugees have sought asylum in Australia via unauthorised boat arrivals.16 In 1992 new federal laws mandated the detention of such boat arrivals until their claims were processed, or until they left the country. These laws breached international human rights law.17 Nevertheless, since 2013 Australia’s laws have become harsher, with boat arrivals now sent to Nauru as well as, previously, to Papua New Guinea (png), where their claims are processed. The government is adamant that these people will
In 2009 a National Human Rights Consultation was conducted, resulting in a recommendation for the adoption of a federal human rights charter similar to those then in place in the act and Victoria.21 However, the Australian government baulked at that recommendation and instead adopted a ‘Human Rights Framework’.22 The most important parts of the Framework boosted parliamentary and bureaucratic mechanisms to address human rights. An in-depth study of the first four years of the Framework, however, indicates that it has had little impact on the actual protection of human rights,23 probably because the Framework lacks judicial teeth. The exclusion of the judiciary from the Framework reflects Australia’s traditional adherence to notions of parliamentary sovereignty.24
Australia has a ‘diverse, pluralistic and sophisticated’ civil society,25 with numerous human rights non-governmental organisations (ngos) with both
2 Relationship of Australia with the International Human Rights System in General
Australia is party to seven of the nine core UN human rights treaties, six Optional Protocols (ops), and has accepted five of the seven treaty body complaints mechanisms available to it. Australia is also party to a number of other treaties of relevance to human rights, such as treaties relating to refugees and slavery. Australia issued a standing invitation to the Special Procedures of the UN Human Rights Council in 2008, which remains open. It was also a member of the UN Human Rights Council for a term from 2018 to 2020, and has been an engaged participant in the system of Universal Periodic Review (upr). Since there is no regional human rights mechanism to which Australia can become a party, UN obligations and engagements represent the main international component of human rights in the country.
Australia has a dualist system of law. Thus, international legal obligations must be incorporated into domestic law before they become enforceable in Australian courts. The federal Parliament has the constitutional power to enact statutes to implement human rights treaty obligations, even if the treaties concern subject matters that are within the traditional constitutional realm of the Australian states.27 The states and territories retain residual powers to enact relevant legislation for their respective jurisdictions. Despite its extensive constitutional power to do so, the federal government seems reluctant to incorporate human rights treaties. Professor Simon Rice of the University of Sydney suggested a reason for such reluctance during an interview: ‘States’ rights remains a thing … by and large one respected by [the federal] government.’28
Over the past two decades relations between Australia and the UN human rights mechanisms have waxed and waned. Dealings between the government
Relations improved after the election of a new left-wing government in 2007.30 In late 2013 the conservative coalition returned to power. In May 2015 Prime Minister Abbott responded to a damning report by the Special Rapporteur on Torture on the nation’s migration policies by stating that Australians were ‘sick of being lectured to by the United Nations’.31 Nevertheless, albeit under a different Prime Minister, the Coalition government ran a successful campaign to join the United Nations Human Rights Council from 2018 to 2020, and ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (op-cat) in 2017.32
Australia seems generally content to implement the treaties, and recommendations by treaty bodies, Special Rapporteurs and via the upr to the extent that those recommendations reflect existing laws, policies, practices and aspirations. While Australia’s alignment with human rights values is comparatively high compared to many other countries, largely due to Australia’s traditions as a liberal welfare state,33 that circumstance does not seem to have been driven to a significant extent by Australia’s United Nations (UN) obligations and engagements.34 Hence, the impact of the core human rights treaties on Australian law and policy is overall disappointing.
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4
4.1 Role of UN Human Rights Treaties
The majority of ratifications/accessions of human rights treaties have been by governments from Australia’s main left-wing party, the Australian Labour Party (alp), which served from 1972–1975, 1983–1996, and 2007–2013. The exceptions are the International Covenant on Civil and Political Rights (ccpr), the first two Optional Protocols (ops) to the Convention on the Rights of the Child (crc), and op-cat. A shadow minister suggested during an interview that the alp historically focuses more on Australia’s international relations and standing than the conservative parties.35 The alp is also historically less concerned with the implications of treaty ratification for relations between the federal government and the states.36 In contrast, a senior officer at the Department of Foreign Affairs and Trade (“senior dfat officer”) stated that conservative federal governments, which have ratified fewer human rights treaties than their alp counterparts, were ‘more suspicious of multilateralism’, perhaps partly due to its perceived intrusions on domestic ‘parliamentary sovereignty’.37
Australia has not ratified the International Convention on the Rights of All Migrant Workers and Members of their Families (cmw) nor the International Convention for the Protection of all Persons from Enforced Disappearance (ced). Successive Australian governments believe that migrant workers’ rights are protected in other treaties, and that the rights are already largely protected in domestic legislation.38 The government also feels that the mwc was incompatible with domestic migration policies and Australia’s visa regime, and did not adequately distinguish between those migrants working lawfully and those working unlawfully.39 Finally, no like-minded state has ratified the cmw, reducing international pressure on Australia to do so.
Regarding the ced, the government has rejected calls for ratification during Australia’s upr, and stated that ‘Australia already has international human
4.2 Impact of UN Human Rights Treaties
4.2.1 Incorporation and Reliance by Organs of State
As explained below, cerd, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat) and the Convention on the Elimination of All Forms of Discrimination Against Women (cedaw) are largely incorporated into Australian law, while the Convention on the Rights of Persons with Disabilities (crpd) and the crc are partially incorporated. ccpr and the International Covenant on Economic, Social and Cultural Rights (cescr) are not incorporated into Australian law. ccpr, however, is relevant to a number of federal statutes, and is the foundation of the three human rights charters in the act, Victoria and Queensland. It is also listed in the Act governing the ahrc, so the latter body may receive complaints relating to ccpr (as well as crc and crpd).
Importantly, numerous laws protect human rights values enshrined in the treaties, particularly ccpr, in ordinary laws that do not use human rights language, such as laws governing police powers, the admissibility of evidence, and privacy. Nevertheless, Australian law lags in some respects and outright breaches international human rights law in some areas.
All of the core UN human rights treaties to which Australia is a party are instruments to which the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) applies. A statement of compatibility with regard to Australia’s obligations under each of those treaties must be appended to each Bill introduced into the federal Parliament.41 Furthermore, each of those treaties is within the mandate of the Parliamentary Joint Committee on Human Rights (pjchr), which issues a report on the human rights compatibility of each Bill. There are significant doubts over the effectiveness of this framework.42 Simon Rice explained that the system focuses only on legislation, and does not ‘speak at all to government action’ and day-to-day service delivery.43 An in-depth academic study indicates that it has had minimal impact on the actual protection of
Australia rarely refers to international human rights treaties in announcing policies, including budget measures, of relevance to human rights. It should be noted that the 2014 and subsequent budgets significantly cut funding for the ahrc, leading its president to state that the funding was insufficient to allow it to meet its statutory obligations.45
4.2.2 Level of Awareness
Awareness of the human rights treaties is patchy within the public service, although there are high levels of knowledge in certain areas that commonly work with them, such as the Office of International Law within the Attorney-General’s Department (‘agd’) and certain legal and human rights policy areas of dfat. Knowledge within other departments is low according to interviewees,46 although staff in certain parts of government might have specific knowledge of a relevant human right.47 The greatest familiarity seems to be with certain rights in ccpr, such as freedom of speech and freedom of religion, as well as non-discrimination (perhaps due to the plethora of anti-discrimination laws in Australia).48
Members of Parliament generally have low levels of awareness of the treaties, given the dearth of parliamentary discussion about them.49 A former senior agd officer, as well as the Shadow alp Minister, thought that the
There is little knowledge in or attention paid to human rights within the mainstream media,51 with the online Guardian Australia probably providing the most consistent coverage of Australia’s treaty body engagements.52 Nick Poynder, a barrister involved in individual communications, remarked at an interview that ‘the way that [individual communications] came to the attention of journalists is almost completely arbitrary’, with journalists needing an ‘angle’ beyond the fact of an adverse international decision itself.53 Olivia Ball of the ngo Remedy Australia felt the media ‘often get it wrong’.54 Furthermore, Australian print media is unhealthily dominated by News Limited papers,55 which are often hostile to international human rights law.56 Overall, little pressure is applied to the government by the media to prompt compliance with the UN treaties.
International human rights treaties and associated jurisprudence are rarely raised in Australian courts, except where a treaty is cited as a legitimate source of interpretation for a particular statute. Hence, knowledge of the details of international human rights treaties and associated treaty body jurisprudence
Knowledge of the human rights treaties is very high within, and are a prominent feature of, the work of the ahrc.59 The treaties, even those such as cescr and cat which are not explicitly referenced in its governing statute, are frequently cited in reports and inquiries. It also has the power to make non-binding decisions on breaches of ccpr, cRPd and crc, which are tabled in Parliament.60
Continuing Legal Education for practitioners is mandatory for Australian lawyers in various areas but not in international human rights law. There is occasional human rights training for lawyers on an ad hoc basis.61 Nick Poynder suggested that knowledge amongst immigration lawyers, who are more likely to engage with international law than most other lawyers, of international human rights law was ‘moderate’ and not detailed.62 Simon Rice suggested that detailed knowledge was lacking in community legal centres.63
Some Australian ngos, such as the Human Rights Law Centre, are very alert to the core treaties and associated jurisprudence. It also seems that more
The Australian public generally lacks specific knowledge of the treaties, and most people have a very limited understanding of how rights are protected.68 There were differences of opinion among interviewees with regard to public attitudes to human rights. Sarah McCosker, formerly of the agd, felt Australians were generally liberal and open-minded regarding human rights. Nevertheless, a ‘body of conservative opinion’ was ill-informed on the matter, and there was definite ‘ongoing divisiveness on certain issues, particularly relating to border protection and asylum-seeker policy’.69 A senior dfat officer believes that human rights align with Australian values, such as democracy, the rule of law, and common law values.70 An alp shadow Minister also felt that the public has a strong attachment to ‘underlying principles’ such as fairness, openness, integrity, transparency, though there was little knowledge of the specifics of human rights and human rights language.71
Overall, little popular pressure is brought to bear on the government to pay greater attention to its international human rights obligations. Such pressure seems unlikely to arise unless an issue becomes one of concern to the majority.
Law faculties within Australian universities commonly have international human rights law units at undergraduate and postgraduate levels.78 Human rights law is not compulsory for law students, and international human rights law generally is absent from core subjects.79 There is a growing number of specialist human rights academics and human rights doctorates: Some Australian human rights academics are world renowned.80 While academic activities are dominated by the discipline of law,81 there are increasing numbers of non-law
Some interviewees felt that overall awareness of the international human rights system would be assisted by the adoption of national human rights legislation: Simon Rice felt that such legislation would ‘fill a gap in people’s minds’.83 Indeed, knowledge within government and civil society in those jurisdictions with human rights statutes is felt to be much better than in other jurisdictions.84
4.2.3 State Reporting
Australia has submitted its periodic reports to the treaty bodies, although its submissions are always delayed. Reporting is a complex process, involving consultation across various government departments as well as six states and two territories.85 Many of the most important issues are largely matters governed by the states, such as prisons, hospitals and housing. While a senior government official who works on human rights implementation agreed that coordination was difficult, he added that ‘states and territories engaged with reporting processes in good faith and did what they could to support federal government’.86 Delays also arise on the part of the treaty bodies, with regard to the scheduling of the dialogues pursuant to state reports.87
Delays in the submission of Australia’s reports have shortened in recent years. In this regard, treaty body reforms in the form of word limits and lists of issues have undoubtedly helped. So too, according to a senior dfat officer, have ongoing civil society consultations that help to focus the reports on matters of the deepest concern.88
The lead agency for all reports, apart from cedaw, is either the agd (ccpr, cat, crc, crpd) or dfat (cerd, cescr). In 2006/2007, the substantive content of Australia’s periodic reports under the two covenants were incorporated into a single ‘Common Core Document’,90 necessitating cooperation in drafting between agd and dfat.
Australia’s periodic reports vary in their thoroughness. The most recent reports, which are more timely, are less comprehensive, possibly due to word limits and the permissibility of focusing on lists of issues from the treaty bodies. Phil Lynch, Director of the International Service for Human Rights and former director of the Australian ngo, the Human Rights Law Centre, stated at interview that there was ‘a level of ritualism about’ Australia’s reports, listing programmes and budgets rather than focusing on ‘the extent of implementation’ and ‘violations’.91 The reports tend to avoid politically embarrassing statements,92 although shortfalls are sometimes conceded. Simon Rice agreed, but doubted that Australia’s reports were ‘any different from most Western states’.93
Shadow reports are regularly submitted. The ahrc has generally prepared independent reports since the 2000s, as have ngos.94 A feature of shadow reporting for over ten years is the production of an ‘ngo coalition report’ coordinated by a lead ngo with contributions from dozens of other ngos,
Delegations for dialogues with treaty bodies normally include senior public servants from the lead reporting department, staff from other relevant departments such as Immigration or Indigenous Affairs, and senior staff from Australia’s Permanent Mission to the UN in Geneva. Sometimes a relevant commissioner from the ahrc will be part of the delegation, such as the Race Discrimination Commissioner for cerd. Ministers and other politicians have not attended since the fractious cerd dialogue in 2000.
Civil society interviewees had a mixed view on Australian delegations. Rachel Ball states that delegation members were occasionally unable to answer pertinent questions,96 while Ben Schokman felt that sometimes answers were ‘factually incorrect’ or ‘misleading at best’. He also stated that one could almost see the mood change in the room when the issue of refugees arose. Nevertheless, he felt that Australian delegations were willing ‘to engage in a constructive way’.97
Concluding Observations (cos) for all treaties are published on the website of the agd.98 Only the most recent cos are available, and no further dissemination efforts are apparent. A senior government official who works on human rights implementation stated that there has been ‘a huge amount of progress in a short amount of time’ regarding dissemination, including greater cooperation and information sharing with ngos and the ahrc.99
Implementation and follow-up to cos by Australia is underwhelming. While Australia has cooperated procedurally by responding to the follow-up processes, it often fails to implement recommendations unless a recommendation aligns with domestic political aspirations. A senior dfat officer felt that they could ‘feed into the conversation about policy change’ but did not
Sarah McCosker stated during her interview that dialogues on reports, from the government’s point of view, were overly short and somewhat unreal: ‘It was the performance of a dialogue rather than a real dialogue.’ She also felt that the format had contributed to the adoption in some dialogues of a defensive attitude by Australia: Perhaps a more regular dialogue might reduce that ‘sense of anxiety’.102 In contrast, a senior dfat officer stated that members of delegations were now trained so as to engage positively rather than defensively.103
A former senior agd officer felt that treaty body members were unfamiliar with the Australian context, and that some of their conclusions were based on incorrect premises. He added that the reviews were quite ‘superficial’, especially in contrast to the effort put into the reports. However, he added that specific recommendations can have an impact within government if they are ‘practical and direct’, rather than vague or ‘scattergun’.104 Phil Lynch agrees that ‘the more precise the recommendations are, the more useful they tend to be for domestic advocacy purposes’.105
4.2.4 Individual Communications
Australia has dealt with individual communications under cerd, the opi-ccpr, cat and the op-crPd, as explained below. Selected views from all treaty bodies and government responses are published on the agd’s website.106 The site refers users to the Treaty Body Jurisprudence Database for other Views.
Australia engages procedurally in individual communications processes by submitting arguments while the case is proceeding. Australia also tends to respond in some way regarding follow-up, though the response may be cursory. Ben Schokman recommended a more formal follow-up process, such as tabled reports in Parliament from the pjchr. Otherwise he felt follow-up ‘[fell] into an abyss’.107
The views in individual communications have had little impact in Australia.110 The government’s position is that they are ‘not legally enforceable’ so it will not implement them where it disagrees with the relevant treaty body’s interpretation and finding of violation.111 Government officers generally agreed in their interviews that Australia has often disagreed with the conclusions reached by the treaty bodies on domestic and international law.112 A senior dfat officer conceded that implementation therefore is ‘rare’.113 Communications have concerned a wide range of matters, especially those submitted under the opi-ccpr. Phil Lynch believes that the government has breached its obligation to at least engage with the views ‘in good faith’.114
While there have been many individual communications against Australia, there are glaring absences in the jurisprudence. Certain matters that seem ripe for submission have not arisen, such as offshore processing of asylum seekers and, largely, indigenous issues. A lack of faith in the likelihood of implementation of views by the Australian government might explain these absences. Furthermore, ngos might be wary of the possibility that an impugned policy might be exonerated by a treaty body, thus hampering local campaigns against the policy.115
Olivia Ball interviewed many authors of individual communications against Australia for her PhD research. She ultimately concluded that there was utility
More negatively, Olivia Ball found that the process was slow,119 difficult to understand, and that contact with the treaty bodies was difficult for some complainants.120
A former senior agd officer felt that the views were helpful in facilitating policy arguments within government, but only where ‘well-reasoned’. He used that word deliberately, as he felt that some views seemed to be based on ‘making a call, according to personal politics’.121 A senior government official who works on human rights implementation stated that they are ‘a mechanism for drawing something to a government’s attention’.122
Rachel Ball felt that individual communications take up ‘a lot of resources’ without resulting in ‘meaningful change’. Their greatest utility, in her view, was if they contributed to a ‘broader [civil society] campaign’.123 Ultimately, Ben Schokman felt that individual communications were ‘an instrumental process not an end in themselves’.124 Less hopefully, Ron McCallum, former Chair of the crpd Cttee, felt that individual communications did not generally ‘help Australians’.125
People and organisations are not subjected to reprisals from the government for engagements with the treaty bodies which criticise or make allegations of human rights breaches against Australia.126
4.2.5
Beyond reporting and individual communications, Australia’s other main engagement with the treaty bodies has been with regard to the urgent action procedure under cerd, discussed in part 5.1.
4.2.6 Treaty Body Membership
There is no officially-documented process for the selection of treaty body members/nominees in Australia. Australia has had six overall (including two positions for the same person, Elizabeth Evatt, on two different treaty bodies). In the last ten years, Australia has successfully nominated two candidates for one committee, the crpd.127
Many interviewees expressed a preference for Australia to push for more nominees on the treaty bodies. One former senior member of the agd felt that ‘vote trading’ for UN positions (within and beyond the human rights field) meant that Australia was less inclined to nominate people for treaty bodies, and instead focused on other priorities, such as its successful campaign for the Human Rights Council.128 Ben Schokman and Rachel Ball felt that Australia might be comparatively good at promoting candidates for UN treaty bodies, when a decision is made to do so.129
4.2.7 Conclusion
Given Australia’s status as a rich, liberal, democratic state, its engagements with the treaty bodies may be viewed as disappointing. Treaties and treaty body jurisprudence have a soft impact in the form of the creation of advocacy tools for civil society and within government, and to provide vindication for victims. Nevertheless, they rarely lead to actual policy and legislative changes.
While the nadir in relations (1999–2007) has long passed, Australian governments are commonly unimpressed with treaty body processes and outputs. Those processes are beset by under-resourcing,130 duplication, divergence, inconsistency of quality and efficiency, and discrepancies in procedures.
A senior dfat officer felt that there was ‘a lack of nuance’ in some jurisprudence, where the treaty bodies failed to grapple with ‘larger public policy
A senior government official who works on human rights implementation believes that the treaty bodies have engaged in problematic ‘mission creep’, which undermined their effectiveness.132 The same official also felt that the treaty bodies were dominated by a ‘civil law approach’.133 While Simon Rice felt that some treaty body members lacked experience, he added that ‘at their best, you’ve got really smart people making really thoughtful decisions’.134
The senior government official who works on human rights implementation wished for more people on the treaty bodies who ‘understood how governments work’, especially in democratic countries, and tailored their comments in a more practical manner.135 Ron McCallum stated that Australia, as a ‘wealthy’ state, can be an ‘easy target’, especially for treaty body members from poorer states.136 This insight may help to explain a sense within the government that it is treated overly harshly. These negative opinions of the quality of treaty body processes and outputs also help to explain Australia’s reluctance to consistently implement their recommendations and views.
Rachel Ball stated that civil society increasingly perceived the treaty body processes to be too distant and ‘top-down’ to solve human rights problems in Australia.137 On a more positive note, Phil Lynch felt that treaty body jurisprudence, even in the problematic area of refugees, may have helped to prevent ‘further regress’, and at least helped to put ‘violations on the record in relation to future accountability’ and ‘for learning lessons’.138
5
5.1 International Convention of the Elimination of All Forms of Racial Discrimination
5.1.1 Ratification, Incorporation, and Main Institutions
Australia signed cerd in 1966 and ratified it on 30 September 1975. Australia deposited the instrument of acceptance of individual communications under cerd on 28 January 1993. Australia did not opt out of the cerd Cttee’s Early-Warning Measures and Urgent Procedures.
Australia made a declaration regarding article 4(a) upon ratification that offences regarding racial hatred and incitement to discrimination were not then on the statute books, but that the government intended to legislate ‘at the first suitable moment’. Civil offences regarding racist speech were introduced in 1995.139 The declaration remains, as no criminal law has been enacted at the federal level nor in most states. Maintenance of the declaration also reflects ongoing concerns within government over the free speech implications of hate laws.140
The Racial Discrimination Act 1975 (Cth) (rda) incorporates cerd into Australian law. It applies to all state and territory jurisdictions, as well as the Commonwealth, and is supplemented by legislative prohibitions on race discrimination in the states. The main office charged with promoting the rda, and indirectly cerd, is the Race Discrimination Commissioner, a post within the ahRc. Within the ahrc there is also the Aboriginal and Torres Strait Islander Social Justice Commissioner, who promotes and investigates human rights matters related to Australia’s indigenous peoples.
5.1.2 Policies and Initiatives of Relevance to cerd141
Here, we concentrate on those policies most likely to have been driven in some way by the treaties themselves, rather than on every policy of potential relevance to a treaty. In April 2009 the government declared its support for the UN Declaration on the Rights of Indigenous Peoples, which had been withheld
5.1.3 Use by Courts
The views of the committees travel beyond the international obligations that Australia has agreed to and the terms of the Convention they recommend, in effect, are implications. This Court cannot apply views which would have the effect of altering the text of the Convention to
which Australia has agreed and which has formed the basis for the relevant measures provided by the rda, which the Court is required to construe.146
Maloney is typical of the High Court’s cautious approach to treaty body jurisprudence, if not international legal materials generally.147
5.1.4 State Reporting and Its Impact
Since 1999, Australia has submitted reports in 1999, 2003, 2010, and 2016. There has been an average delay of just under 18 months. Australia appeared before the cerd Cttee in 2000, 2005, 2010 and 2017.
In 2000 the government accused the Committee of a ‘blatantly political and partisan’ approach, particularly in light of its criticism of Australian native title laws, and began to push strongly for ‘reform’ of the treaty body system.148 Australia’s appearance in 2005 was also fractious.149 Relations have improved since that very low point.
The cerd Cttee’s cos on Australia focus on topics such as the ongoing discrepancies in almost all life outcomes (including life expectancy, education, health and incarceration rates) between indigenous and non-indigenous Australians, Islamophobia, racism against international students, the failure to withdraw Australia’s declaration, and the mandatory immigration detention regime.150
Overall, Australia has not made significant progress towards addressing the concerns raised in the Concluding Observations of the cerd Committee on 27 August 2010 following Australia’s last periodic review. Alarmingly, in some areas, Australia has regressed.152
More positively, in 2018 it was announced that the ahrc would begin working with police forces in Australia and New Zealand to follow up on the cerd Cttee’s 2017 recommendations regarding anti-racism training for the police,153 which is one of the few measures objectively attributable to a treaty body recommendation.
5.1.5 Individual Communications
The cerd Cttee has published views in six individual communications against Australia. Only one, Hagan v Australia in 2003, resulted in a finding of a violation.154 Hagan concerned the failure by Queensland authorities to remove the sign on a stand at a sports stadium in Queensland named after one es Brown; the sign bore his offensive nickname of ‘Nigger Brown’. The cerd Cttee agreed that the display of the sign breached the treaty and recommended its removal. In 2008 the relevant local authority demolished the stand as it had structural defects.155 Hence, the views were implemented but due to reasons unrelated to them.
5.1.6 Early Warning Measures and Urgent Procedures
Australia’s extreme displeasure with the cerd Cttee at the turn of the century stemmed from the latter’s urgent action decision on 14 August 1998, calling on Australia to provide more information on its dilution of statutory native title rights for indigenous peoples. Australia was the first Western democracy to
Since then, the cerd Cttee has written to the Australian government on four occasions under its Early Warning and Urgent Action Procedure: in 2009 (twice), 2010 and 2018. The first two concerned the nter, the third was with respect to the ongoing lack of funding for Aboriginal legal aid,157 and the most recent one concerned the proposed Carmichael Coal Mine and Rail Project in Queensland and its impact on local indigenous peoples.158
In response to the 2009 letters, the government initiated public consultations on future directions for the nter. As noted above, the suspension of the rda was reversed in 2010.159 Australia’s response to the 2010 letter has been mixed, with funding increased but subsequently reduced. It has been declining in real terms since 2013, despite an increase in demand.160
The Australian government did not respond to the cerd Cttee’s 2018 letter in the reporting period for this chapter. It may be noted that the relevant state (Queensland) and Commonwealth governments have both granted the necessary approvals for the impugned mine to proceed.
5.1.7 Treaty Body Membership
No Australian expert has served on the cerd Cttee.
5.1.8
cerd’s impact in Australia is apparent in its adoption within the rda, and the work of the Race Discrimination Commissioner and other parts of the ahrc. No impact is evident from the small number of cerd communications, nor does it seem that the cos have compelled policy changes, apart from the commitment to anti-racism training for the police. Urgent actions have borne some fruit in terms of amendments to the nter, but have otherwise had little noticeable policy impact. Certainly, Australia’s relationship with the cerd Cttee has improved from a nadir at the turn of the century.
5.2 International Covenant on Civil and Political Rights
5.2.1 Ratification, Incorporation, and Main Institutions
Australia signed ccpr on 18 December 1972 and ratified it on 13 August 1980. The delay was caused by strong opposition by some state governments who believed that ratification would centralise power in the Commonwealth at the expense of the states.161
Australia maintains three reservations and one declaration, having withdrawn the majority of its original reservations and declarations in 1984.162 Regarding article 10(2)(b) (which mandates the separation of juvenile and adult offenders in detention), Australia believes that it is not always desirable to separate offenders, such as where segregation might entail solitary confinement or living conditions less amenable than those of the general prison population.163 It is also difficult to meet the requirements in remote areas.164 Regarding the right to compensation for miscarriages of justice under article 14(6), Australia maintains that the right may be provided by administrative procedures rather than legislation. Finally, regarding the prohibition on war propaganda and hate speech in article 20, Australia states that it ‘interprets the rights provided for by articles 19, 21 and 22 as consistent with article 20’, and as such reserves the right not to introduce further legislation on these matters. The latter reservation is consistent with Australia’s declaration under
Australia acceded to the opi-ccpr on 25 September 1991. It ratified opii-ccpr even earlier, on 2 October 1990, before it came into force.
ccpr has not been incorporated into domestic law and Australia has not adopted a comprehensive legal framework for the protection of ccpr rights at the federal level.165 However, some statutes incorporate ccpr in part, and rely on Australia’s ratification of ccpr for their constitutional basis, such as the Age Discrimination Act 2004 (Cth), the Human Rights (Sexual Conduct) Act 1994 (Cth), and the extension of the Sex Discrimination Act 2004 (Cth) so as to cover men and sexual minorities (discussed below). The Crimes (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth) implements the Second Optional Protocol. Non-refoulement obligations embedded in articles 6 and 7 of ccpr are protected under the Migration Act after the passage of the Migration Amendment (Complementary Protection) Act 2011 (Cth).166
ccpr is included in the Schedule to the Australian Human Rights Commission Act 1986 (Cth) so it falls within the ahrc’s mandate for receiving complaints. The Human Rights Commissioner within the ahrc largely deals with ccpr rights. The Age Discrimination Commissioner also serves within the ahrc, and has primary responsibility for monitoring and facilitating implementation of the Age Discrimination Act 2004 (Cth).
ccpr sometimes is included in legislation as an object to the Act. For example, section 3 of the National Disability Insurance Scheme Act 2013 (Cth) states that one of the objects of the Act is to give effect to ccpr.167
At the sub-federal level, the human rights charters in the act, Victoria and Queensland bind public authorities within those jurisdictions to comply with almost all of the rights in ccpr, absent contrary primary legislation. Some ccpr rights are excluded from that legislation, such as the right to self-determination in all three charters.168 Various reasons have been given for its
Australia asserted in its 2016 report to the Human Rights Committee (HRCttee) that its existing institutions and domestic laws, including common law and statute law, adequately implemented ccpr at the domestic level.170 Certainly, numerous laws protect civil and political rights, including laws regarding the franchise, privacy and police powers. A senior government official who works on human rights implementation stated that most ccpr rights have found ‘their way into Australia’s legal system in all sorts of different ways’.171 However, no compatibility study has been officially undertaken, nor has a programme of domestic legal reform been embarked upon, to give specific effect to the treaty.172
5.2.2 Policies and Initiatives of Relevance to ccpr173
On 21 April 2011 the Australian government appointed the inaugural Independent National Security Legislation Monitor (inslm) under the Independent National Security Legislation Monitor Act 2010 (Cth), which has a mandate to review and report on Australia’s counter-terrorism and national security legislation.174 In performing functions under the Act, the inslm must have regard to Australia’s human rights obligations. Accordingly, inslm reviews have often focused on Australia’s obligations under ccpr.175
5.2.3 Use by Courts
The opening up of international remedies to individuals pursuant to Australia’s accession to the Optional Protocol to the International Covenant on Civil and Political Rights brings to bear on the common law the powerful influence of the Covenant and the international standards it imports. The common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights. A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration.
Since that zenith, the HRCttee has expressed its regret that Australian judicial decisions make little reference to ccpr.178 It is cited most often in cases where legislation is based on ccpr. For example, ccpr is cited extensively by the High Court in sztal v Minister for Immigration, which concerned the complementary protection provisions of the Migration Act.179
The High Court has rejected the use of ccpr to override the clear meaning of legislation.180 Furthermore, in Coleman v Power, Gummow J stated that a particular provision of a statute should not be construed in light of ccpr, as it was enacted before Australia ratified ccpr. However, Kirby J in the same case stated that ‘where words of a statute are susceptible to an interpretation that
The decision of the Supreme Court of Victoria in Castles v Secretary to the Department of Justice182 is an example of citations of ccpr in a case based on a state charter. Articles 10 and 23 of ccpr aided the Court in finding that, under the Victorian Charter, a prisoner had a right to access in vitro fertilisation (ivf) treatment while in prison.
5.2.4 State Reporting and Its Impact
Australia submitted its fifth report in 2007 and its sixth report in 2016. On average, Australia has been late by 26 months with its reports. Australia appeared before the HRCttee in 2000, 2009 and 2017.
The HRCttee’s cos on Australia focus on Australia’s repeated failure to implement the Committee’s views under the Optional Protocol; the policy of mandatory immigration detention and offshore immigration processing centres; counter-terrorism laws, policies and practices; violence against women; lack of respect for the principle of non-refoulement; excessive use of force by law enforcement officials; and the rights of indigenous peoples.
Australia first submitted information on follow-up to the HRCttee’s 2009 cos on 17 December 2010, which amounted to a delay of nine months.183 Australia’s response to the follow-up question on immigration detention policy received an ‘A’ evaluation mark, which equates to ‘response largely satisfactory’. It may be noted, however, that since that time the policy has regressed significantly. With regard to the remaining three recommendations, Australia’s response was not sufficient, earning a ‘B2’ evaluation from the Committee (‘initial action taken, but additional information required’).184 The Committee sent a follow-up letter to Australia requesting it provide further information on these three recommendations. Australia provided a response on 3 February 2012, which included some additional information. However, it disagreed with the Committee’s interpretation of some issues, for example, that the definition of a terrorist act in the 2005 counter-terror legislation was vague.185 The
The ngo coalition report to that 2017 review listed a large number of areas where Australia had failed to implement the cos, and indeed where it had gone backwards. Those lists dwarfed the list of areas where Australia had made progress in respect of recommendations in the 2009 cos.187
The HRCttee requested in its 2017 cos that Australia provide follow-up information on three issues by 10 November 2019.188 No responses were received in this chapter’s reporting period.
5.2.5 Individual Communications
The first individual communication against Australia was Toonen v Australia,189 where Tasmanian laws which banned sex between men were found to breach the right to privacy in article 17. The case led directly to a remedy in the form of the passage of the Human Rights (Sexual Conduct) Act 1994 (Cth), which overrode the impugned Tasmanian laws. No case has since been as successful or impactful.190
The HRCttee has since 1999 published views in 67 individual communications against Australia. Of those, 27 were found to be inadmissible.
In 33 communications, 31 of which were finalized since June 1999, the HRCttee found Australia in violation of the ccpr. The communications concerning violations have covered a wide range of issues such as arbitrary detention;191 life imprisonment without parole for a person who was a child at the
Australia generally responds by disputing the HRCttee’s interpretation of ccpr and refusing to implement the views.198 In 2018 the then Vice-Chairperson of the HRCtee, Professor Yuval Shany, described Australia’s record as one of ‘chronic non-compliance’,199 with the government routinely rejecting the HRCttee’s views.
Some cases are remedied. Horvath v Australia concerned the lack of compensation for a woman assaulted by a Victorian police officer.200 At the time, only the police officer was liable for damages and not the state of Victoria. Victorian law has since been amended so that the state provides for damages if the police officer is unable to pay damages. The relevant police officer also
The ngo Remedy Australia tracks Australia’s implementation of individual communications across the UN system.203 It lists only six fully ‘remedied’ cases, five of which are ccpr cases.204 Aside from Toonen, the other cases seem to have been ‘accidentally remedied’ by circumstances which were not influenced by the decision. For example, one ‘remedied’ case is Hagan, discussed above, where the ‘remedy’ was not driven by cerd views.
Remedy Australia’s criteria for assessing remedial status are quite stringent. For example, it lists Kwok v Australia205 as only ‘partially remedied’. The HRCttee found that Kwok’s deportation would breach ccpr and Australia did not in fact deport her. However, it did not pay her compensation for her prior years of detention as recommended.
Remedy Australia’s list only goes up to 2017. Two more cases can now be classified as essentially remedied. The violations in Campbell v Australia206 and G v Australia,207 concerning the refusal by Australia to, respectively, recognise same-sex divorce and a married transgender person’s right to change her birth certificate, were both driven by Australia’s failure to recognise same-sex marriage. This situation changed in late 2017, when Australia amended its marriage legislation to recognise marriage equality. That change, which indirectly remedies the two cases, was not driven by those HRCttee decisions. Rather, it was driven by vigorous local debate and a survey of public opinion which confirmed overwhelming support for marriage equality.
5.2.6 Interim Measures
The HRCttee has requested interim measures from Australia in 13 communications and Australia has complied every time. Most requests have been to
5.2.7 Treaty Body Membership
Elizabeth Evatt ac served as a member of the HRCttee from 1993 to 2000. Professor Ivan Shearer am served as a member of the HRCttee from 2001–2008, and as Vice-Chairperson from 2007 to 2008.
5.2.8 Brief Conclusion
ccpr probably is the most well-known of the core human rights treaties within Australia among government, civil society and the public. It forms the basis of the three human rights statutes in the act, Victoria and Queensland. Otherwise, its incorporation into Australian law has arisen in a piecemeal fashion, such as in the realms of age discrimination and non-refoulement. Having said that, its rights and values are reflected in numerous laws that protect civil rights in accordance with Australia’s liberal democratic and common law traditions. The Human Rights Commissioner within the ahrc plays a role in conducting inquiries and promoting ccpr, and the ahrc may make non-binding decisions regarding breaches of the treaty. Australia has also incorporated the Second Optional Protocol into domestic law.
There have been many op decisions against Australia, the vast majority of which have not been implemented, or which have been ‘implemented’ due to reasons unrelated to the relevant views. Similarly, the cos have not had a significant impact on Australian law or policy. However, interim measures issues by the HRCttee have uniformly been complied with, which will have provided short-term relief to the relevant author of a communication under op1-ccpr.
5.3 International Covenant on Economic, Social and Cultural Rights
5.3.1 Ratification, Incorporation, and Main Institutions
Australia signed cescr in 1972 and ratified it on 10 December 1975. The treaty was not well understood in Australia at the time, so opposition to ratification was minimal, on the understanding that it would make ‘little or no difference
Australia is not a party to op-cescr. The Human Rights Law Resources Centre (as it was then known) has cogently suggested that the government has misgivings about group complaints, justiciability of economic, social and cultural rights, and the appropriateness of judicial or quasi-judicial bodies determining how a state’s resources should be allocated.212
Australia has not directly incorporated cescr into its domestic law. Provisions of legislation pertaining to, for example, public housing, social security and conditions of work all protect Australians’ economic social and cultural rights, but make no reference to cescr. Indeed, minimal attention has been paid to cescr since its ratification. A senior government official who works on human rights implementation stated that it was harder to demonstrate the way in which social rights are protected in law as effective realisation of social rights did not always lend itself to legal responses: He added that demonstrating ‘progressive realisation is really hard … there will always be competing resource [considerations]’.213
No national mechanism, other than the bodies involved in the implementation of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), specifically addresses cescr. However, there are many governmental mechanisms that do work relating to economic, social and cultural rights, including the Fair Work apparatus and the Australia Council for the Arts.
At the sub-federal level, the Human Rights Act 2004 (act) and Human Rights Act 2019 (Qld) protect certain economic, social and cultural rights. The Australian Capital Territory statute recognises the right to education in section 27A, while the Queensland Act recognises rights of access to education and health services in sections 36 and 37. These provisions, allowing for justiciable social rights based on cescr, are ground-breaking in Australian law.214
5.3.2 Policies and Initiatives of Relevance to cescr215
Between 1999 and 2007 Australia’s national budget remained relatively steady in terms of proportions spent on areas directly affecting economic, social and
From the conservative government’s first budget in 2014, attempts have been made to reduce spending in areas such as social security as part of a broader push to reduce spending and bring the budget back into surplus. However, many relevant budget measures have been blocked in Parliament. While the blocking of measures was never based explicitly on cescr, prominent arguments around ‘unfairness’ arguably reflected notions of proportionality and non-retrogression in economic and social rights jurisprudence.
5.3.3 Use by Courts
cescr and the jurisprudence of the cescr Cttee have featured only sparsely in Australian jurisprudence since (and before) 1999. In Purvis v nsw, an anti-discrimination case from 2003 about a student with disability being excluded from his school, Callinan J of the High Court referred to cescr, but only to note that students with disabilities might ‘cause disruption to the education of others’, and that this ‘rights conflict’ had not been adequately addressed by the student’s legal representatives.217
As a better example, in 2012 Bell J of the Victorian Court of Appeal discussed the right to work in article 6 of cescr, including the cescr Cttee’s General Recommendation 18. Bell J observed that the Victorian Charter only protected related rights, rather than the right to work as such, but that the common law protected the right to work in certain circumstances.218 Similarly, in 2018 Bell J discussed General Comment 14 (on the right to health), but went on to note that the right to health was not reflected in Victorian domestic law.219
5.3.4
Australia submitted reports to the cescr Cttee in 2007 and 2016. The average delay for the last 20 years has been approximately two years. Australia appeared before the cescr Cttee in 2000, 2009 and 2017. The cescr Cttee’s cos on Australia focus on topics such as lack of domestic legal implementation, the treatment of indigenous Australians and asylum seekers, healthcare services, labour relations and trade union rights, as well as the lack of an official poverty line.220 To these have lately been added lack of action on climate change, business and human rights, the adequacy of social security benefits, gender equality and domestic violence, migrant workers’ rights and mental health services.221
Australia first submitted information on follow-up to the cescr Cttee’s 2017 cos in December 2018.222 The government committed to revising the Closing the Gap strategy, which is aimed at improving socio-economic conditions for indigenous Australians, and to re-evaluating the discriminatory indigenous income management measures which have applied in the Northern Territory since before the cescr Cttee issued its 2009 cos.223 Finally, the document defends Australia’s border protection measures and regional cooperation on irregular migration.224 Such follow-up documents do not suggest that major shifts in policy have been implemented as a result of cos.
5.3.5 Treaty Body Membership
Professor Phillip Alston served on the cescr Cttee from 1986 to 1998, and as Chairperson from 1991 to 1998.
5.3.6 Brief Conclusion
Despite being the second human rights treaty ratified by Australia, cescr has probably had the least impact on Australian law and government policy. Australia’s welfare laws are driven by local political and economic considerations rather than by cescr or the jurisprudence of the cescr Cttee. Australia
5.4 Convention on the Elimination of All Forms of Discrimination against Women
5.4.1 Ratification, Incorporation, and Main Institutions
Australia signed cedaw in 1980 and ratified it on 28 July 1983. The ratification was directed by a new alp government towards the end of the UN Decade for Women (1976–1985). Ratification gave Australia the ‘constitutional foundation’ to enact the Sex Discrimination Act 1984 (Cth) (sda).225
Australia lodged a reservation to article 11(2) of cedaw with respect to paid maternity leave, stating that for the time being it was reserved for government employees.226 It also entered a reservation which stated that the Australian Defence Force policy of excluding women from combat and combat-related duties would not be altered (although the definitions of such duties would be reviewed).227 This latter reservation was revised in 2000 to include only combat, and in 2018 it was withdrawn altogether.228 The maternity leave reservation remains in effect, due to budgetary considerations.
Australia acceded to op-cedaw in 2008. It did not opt out of the cedaw Cttee’s inquiry procedure under article 10 of the Optional Protocol.
The sda directly incorporates cedaw into Australian federal law. There is also a range of state and territory laws that prohibit discrimination on the basis of sex. The sda was amended in 2011 to protect men from sex discrimination; to prohibit workplace discrimination on the basis of family responsibilities; to strengthen prohibitions on sexual harassment; and to establish breastfeeding as a separate ground of discrimination.229 In 2013 amendments relating to
The sda in 1984 brought with it the office of Sex Discrimination Commissioner in what was then called the Human Rights and Equal Opportunity Commission (later renamed the ahrc). In addition, there is an Office for Women (formerly known as the Office for the Status of Women), which currently is located in the Department of Prime Minister and Cabinet.231
5.4.2 Policies and Initiatives of Relevance to CEDAW
Numerous policies are of relevance to cedaw, even if cedaw is not expressly cited, such as a number of initiatives aimed at eradicating family violence and violence against women,232 and the introduction of government-funded paid parental leave in the private sector.233
5.4.3 Use by Courts
cedaw and the cedaw Cttee jurisprudence arise occasionally in cases under the sda. For example, in 2007 the Federal Court held that a Victorian law that prohibited the alteration of a married person’s sex on their birth certificate was not contrary to the sda: The majority justified its reasoning by reference to their interpretation of the requirements of cedaw.234 cedaw and related jurisprudence are also raised by female asylum applicants, with varying degrees of success, before Australian tribunals (in relation to their countries of origin failing to respect cedaw).235
5.4.4 State Reporting and Its Impact
The Australian government reported to the cedaw Cttee in 2004, 2009 and 2016. The average delay was one year and eight months. Australia appeared before the cedaw Cttee in 2006, 2010 and 2018.
The cedaw Cttee’s cos on Australia focus on topics such as the inconsistent implementation of the treaty; a lack of engagement by Parliament; the maintenance of the paid maternity leave reservation; the lack of judicial use of cedaw; the rejection of quotas for female representation; the prevalence of violence against women; the persistence of people trafficking; and the prevalence of sexual harassment and continuing poor outcomes for vulnerable women (for instance, indigenous women, women in detention and women seeking asylum).238
The government’s follow-up report of 2012239 is more detailed than equivalent follow-up reports to other treaty bodies. The report goes into depth on government initiatives to combat violence against women and to support victims, as well as measures to improve the lives of indigenous women.240 However, there is no indication that anything reported in the follow-up document was being done specifically to implement the cedaw Cttee’s recommendations.
The ahrc prepared an Independent Interim Report in 2012 to evaluate follow-up on the 2010 cos.241 According to that Interim Report, significant progress had been made from 2010 to 2012 on recommendations relating to family violence and harassment, although in other areas, such as indigenous women’s rights, progress was less observable.242
5.4.5
Australia has been party to op-cedaw since 2008, but to date no relevant communications have been submitted regarding Australia. The absence of cases could reflect a general scepticism over the likelihood of such complaints leading to genuine remedies in Australia.
5.4.6 Treaty Body Membership
Elizabeth Evatt served on the cedaw Cttee from 1985 to 1992, including as Chairperson from 1989 to 1990.
5.4.7 Brief Conclusion
cedaw provides the constitutional foundation for the sda. It has also benefited, at least in the 2000s, from a rigorous reporting process coordinated by the Office for Women, compared to other core human rights treaties, though that Office may suffer from a low profile within government. Some progress is evident in relation to the cos, but it seems likely that such progress is driven by local political and social impetuses towards greater protection of women’s rights rather than cedaw per se. The communications procedure has not to date been utilised with regard to Australia.
5.5 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
5.5.1 Ratification, Incorporation, and Main Institutions
Australia signed cat in December 1985 and ratified it on 8 August 1989. Ratification had broad support ‘given Australia’s prominent part in the work of the UN to find practical ways of combating torture’.243 Australia did not enter any reservations or declarations upon ratification. Australia accepted the individual and interstate complaints mechanisms under articles 20 and 22 of cat by means of a declaration on 28 January 1993.
cat was originally incorporated into Australian law by the Crimes (Torture) Act 1988 (Cth). A decision was made in 2008 to update the 1988 legislation after a recommendation by the cat Cttee in its 2008 cos. Accordingly, Parliament passed the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth). This Act inserted a specific division prohibiting torture as defined in cat, which is directly cited, in Division 274 of the Commonwealth Criminal Code 1995. This Division also implements the obligation to prosecute or extradite all torturers, although ministerial
The Migration Amendment (Complementary Protection) Act 2011 (Cth) amended the Migration Act 1958 (Cth) to enshrine Australia’s non-refoulement obligations under article 3 of cat in legislation, rather than leaving them to be exercised via ministerial discretion, as had previously been the practice.245
Other provisions of Commonwealth legislation also prohibit conduct which might be characterised as torture or ill-treatment under cat, particularly in the context of armed conflict and terrorism.246
Australia signed op-cat in May 2009 and ratified it on 21 December 2017. Ratification was delayed because implementation of this treaty was seen as especially difficult in a federal state requiring cooperation between jurisdictions.247 However, in the wake of revelations about mistreatment in various detention environments (for instance, youth detention in the Northern Territory),248 and in the context of a successful campaign for a seat on the Human Rights Council, Australia finally ratified op-cat in late 2017.
In announcing ratification, the Commonwealth government indicated that no new legislation was planned at the federal level to establish the National Preventive Mechanism (npm),249 but legislation to permit visits by the Sub-Committee on the Prevention of Torture is planned (and in fact is already in place in the two territories).250 Public consultation on the form and mandate
5.5.2 Policies and Initiatives of Relevance to cat
The npm will be the major national mechanism for implementing op-cat and, by extension, cat. It will be coordinated by the Commonwealth Ombudsman and involve agencies conducting visits to places of detention from each state and territory.252 States and territories are expected to fund npm member bodies responsible for visiting places of detention within their jurisdictions. The Commonwealth Ombudsman will receive funding of $1,2 million over four years to coordinate the national npm network.253
Western Australia has had an Office of the Inspector of Custodial Services (oics) since 2003,254 and similar inspectorates are coming online in other jurisdictions, either in response to the ratification of op-cat or due to pre-existing concerns about detention conditions.255
5.5.3 Use by Courts
The cat prohibition on refoulement is sometimes discussed in Australian court decisions concerning planned deportations and removals. For example, in 2013 the Full Court of the Federal Court ruled that a departmental assessment that the applicant’s removal would not breach cat (or ccpr) was unlawful because the assessor did not apply the correct standard of proof in assessing his risk of being subjected to torture.256 Less positively, in 2015 the High Court held that an attempt by the Australian government to intercept a boat carrying
In 2017 the High Court upheld a finding by the Refugee Review Tribunal that subjection to unsatisfactory prison conditions on return to Sri Lanka was not likely to constitute a breach of cat, as the Sri Lankan authorities did not ‘intend’ to subject detainees to such conditions (rather they were due to a lack of resources for the prison system).258 The Court found that international authorities did not shed any useful light on this question of intention,259 but did not consider cat Cttee jurisprudence.
cat Cttee jurisprudence has also been considered in Tribunal decisions regarding asylum claims.260 For example, the Refugee Review Tribunal may refer to the cat Cttee’s cos when considering whether an applicant is a person to whom Australia has protection obligations under the Refugee Convention.261
5.5.4 State Reporting and Its Impact
Australia reported to the cat Cttee in 2005, 2013 and 2019. There was an average five months’ delay in the delivery of these reports. In our reporting period, a session to discuss the latest report had not yet been scheduled. Australia appeared before the cat Cttee in 2000, 2008 and 2014.
The cat Cttee’s cos on Australia focus on topics such as violence against women; people trafficking; indigenous Australians in the criminal justice system; tasers; counter-terrorism legislation; refoulement; mandatory immigration detention and offshore processing; child sexual abuse and involuntary treatment of persons with disabilities.262
Two of the key recommendations of the cat Cttee in 2008 were that Australia specifically criminalise, and adequately define, torture in domestic law; as well as prohibit refoulement through a legislative regime. As explained above, these reforms were adopted in 2010 and 2011 respectively.263 These responses might be considered the high water mark in Australian legislative implementation of treaty body cos.
5.5.5 Individual Communications
Over the last 20 years the cat Committee has issued views in 27 communications against Australia. Without exception, these concern complaints about prospective removal from Australia to face an alleged risk of a breach of article 3 of cat in the state to which they are being returned (that is, refoulement claims). Australia has prevailed in the majority of these cases, with the proposed deportation being found to breach article 3 (if executed) in only five cases.
The Australian government has published views of the cat Cttee from 2012, but to date has published only two responses.266 In these responses Australia refused to accept that it should refrain (or should have refrained) from removing the complainants.267 We are unaware of any deportation decision that has been stopped due to an adverse cat decision although, as explained below, deportations have been stayed due to requests for interim measures.
The cat Cttee’s follow-up reports to the Complaints Procedure, issued since 2014, do not contain a report on any of the communications against Australia.
5.5.6 Interim Measures
The cat Cttee has requested interim measures against Australia on 36 occasions, all of which requested the government to refrain from deporting a person while an article 3 complaint was being considered. Australia has complied on all but three occasions, although it has sometimes (unsuccessfully) requested that such measures be lifted. In two cases, Australia deported a person on the day the interim measures request was issued, but prior to its receipt.268 In Thirugnanasampanthar v Australia the relevant person was deported despite a request for interim measures, as the request ‘could not be brought to the
5.5.7 Treaty Body Membership
There has never been an Australian expert on the cat Cttee.
5.5.8 Brief Conclusion
cat and the cat Cttee jurisprudence have had some impact on Australian law and policy, for example in the passage of a new statute outlawing torture and in the introduction of complementary protection for refugees under migration law. Both developments were explicitly driven by the 2008 cos from the cat Cttee. In contrast, the subsequent cos have had little impact, nor have cat decisions in individual communications apparently provided a remedy to the complainants. As with ccpr, the interim measures requests have been generally effective in providing short term relief to complainants.
5.6 Convention on the Rights of the Child
5.6.1 Ratification, Incorporation and Main Institutions
Australia signed crc on 22 August 1990 and ratified it on 17 December of the same year. Australia’s early ratification reflects its prominent role in the development of the treaty.271 Australia maintains a reservation to article 37(c) of crc regarding the obligation to separate children from adults in prison, which reflects a similar reservation discussed above regarding ccpr.
Australia signed the op to crc on the involvement of children in armed conflict on 21 October 2002 and ratified it on 26 September 2006. It signed the Optional Protocol to crc on the sale of children, child prostitution and child pornography (op-crc-sc) on 18 December 2001 and ratified it on 8 January 2007. The relevant National Interest Analysis made by the government in 2005 suggests that the delay in ratifying the op-crc-sc was due to the need to enact new trafficking in persons offences, and to consult with state and territories.272
crc has been partially incorporated into Australian domestic law. Implementation of crc is mentioned specifically in section 60B(4) of the Family Law Act 1975 (Cth) (Family Law Act) as an ‘additional object’ of Part vii, relating to parenting orders.274 Australian legislation relating to children also frequently includes provisions on the best interests of the child. For example, crc is reflected in Part vii, Division 1, Subdivision ba of the Family Law Act, which provides that the ‘best interests of the child’ are to be a ‘paramount consideration’ in making parenting (custody) orders. The best interests of the child is also a key principle in child protection legislation in every jurisdiction in Australia.275 The application of this principle, however, varies widely depending on the jurisdiction.276
Section 60B of the Family Law Act was amended in 1995 to reflect crc and, since 1999, there has been significant work on trafficking in persons, including children, partly in recognition of the op-crc-sc.277 However, there has never been a national compatibility study or programme of domestic legal reform to give effect to the treaty. Although some national initiatives directly or indirectly rely on crc, they predominantly focus on either specific groups of children or specific themes, notably child abuse.
On 25 February 2013 the government appointed the first National Children’s Commissioner (ncc) at the ahrc. The Commissioner monitors the implementation of crc and tables an annual report in the Australian Parliament on the enjoyment and exercise of human rights by children in Australia. The Commissioner also consults with children and conducts inquiries and leads projects on children’s rights.
Each state or territory has a Children’s Commissioner, Guardian or Ombudsman that holds independent monitoring powers for children in that jurisdiction. These powers vary and range from child protection to out-of-home care and complaints. In 2013 Victoria appointed a specific Commissioner for Aboriginal Children and Young People.
5.6.2 Policies and Initiatives of Relevance to crc
The Australian government established two Royal Commissions between 2013 and 2016 that focused specifically on children: the Royal Commission into Institutional Responses to Child Sex Abuse and the Royal Commission into the Protection and Detention of Children in the Northern Territory.278 Their terms of reference indirectly relied on crc by referring to Australia’s human rights obligations. Both Royal Commissions explicitly referenced crc in their final reports, as well as in their recommendations. For example, the Royal Commission into Institutional Responses to Child Sexual Abuse released its final report in December 2017 and made 409 recommendations, including that ‘all institutions should act with the best interests of the child as a primary consideration’ consistent with article 3 of crc.279
The Royal Commission into the Protection and Detention of Children in the Northern Territory made certain findings that the conduct of youth justice officers was inconsistent with article 37(c) of crc.280
5.6.3 Use by Courts
When considering Part vii of the Family Law Act, the Full Court of the Family Court of Australia has frequently considered the operation of crc. For example, in Re: Jamie, the Court considered the operation of section 67zc of the Family Law Act (orders relating to welfare of children) in the context of determining whether a child was competent to consent to the stage two treatment for gender dysphoria. The Court directly relied on crc to interpret the provision and determine that the child was competent.285 The Full Court of the Family Court has noted in other cases that the intent of section 67zc was to extend protection to children in a manner consistent with crc, in particular articles 19 and 3(2).286 The Court has also noted that other sections of the Family Law Act that relate to children, such as section 43, should be interpreted in light of
The Federal Court of Australia has considered crc in several cases regarding the interpretation of ‘the best interests of the child’ in the context of a decision to grant or cancel a visa, as well as in applications for Australian citizenship.289 In these cases, the Court has tended to find that a decision should have considered the best interests of the child as set out in crc when the relevant provisions referenced the phrase ‘best interests of the child’, even when there was no express reference to crc in the provisions.290
5.6.4 State Reporting and Its Impact
Australia has submitted six reports since 1996. The average delay has been 30 months. Since 1999 Australia has appeared before the crc Cttee in 2005, 2012 and 2019. In 2018 the government provided funding to the National Children and Youth Law Centre to support the preparation of a shadow report by an ngo coalition to the crc Cttee.291
The crc Cttee’s cos on Australia focus on areas such as the reservation to article 37(c) of crc; data collection; budgetary allocations for the realisation of children’s rights, the preservation of identity for indigenous children; corporal punishment; child abuse and violence against children; children with disabilities; children in immigration detention facilities; children placed in out-of-home care; and the administration of juvenile justice, in particular the disproportionately high percentage of indigenous children in the juvenile justice system.292
The crc Cttee has no official follow-up procedure. Follow-up and the implementation of cos, therefore, are assessed through the subsequent state party reports. In its 2005 and 2012 cos the Committee noted that Australia had made efforts to implement its previous cos, such as through the passage of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).294 The Committee also welcomed legislation to establish a ncc but noted that Australia should provide the ncc with adequate immunities and resources for it to effectively function.295 More negatively, the crc Cttee reflected that some of its concerns and recommendations had not been sufficiently addressed.
5.6.5 Treaty Body Membership
Australia has never had a member of the crc Cttee.
5.6.6 Brief Conclusion
The most consequential developments regarding the implementation of crc since 1999 in Australia have been the creation of the office of the ncc within the ahrc, and the convening of two Royal Commissions focused on the protection and rights of children in the contexts of institutional abuse and juvenile detention. crc also forms the basis of certain statutory concepts, particularly in family law, and thus is utilised in those limited instances by decision makers, including courts.
5.7 Convention on the Rights of Persons with Disabilities
Australia signed crpd on 30 March 2007 and ratified it on 17 July 2008, reflecting a strong rhetorical commitment to improving the rights of people with disabilities in Australia. crpd entered into force for Australia on 16 August 2008.
Australia acceded to op-crpd on 21 August 2009, and it entered into force for Australia on 20 September 2009. It has not opted out of the inquiry procedure in article 8 of the op.
crpd is partially incorporated into domestic law. The Disability Discrimination Act 1992 (Cth) (dda) is the principal piece of Commonwealth legislation regarding the rights of persons with disabilities. Amendments made to the dda in 2009,298 in part, were a response to Australia’s ratification of crpd.299 The crpd Cttee has since suggested that the scope of protected rights and grounds of discrimination in the dda is narrower than the crpd.300 Its former Chairperson, Ron McCallum, believes that ‘much more should be done’ to align the dda with crpd.301
On 20 April 2009 the Attorney-General declared crpd a ‘relevant international instrument’ for the purposes of the Australian Human Rights
crpd is directly cited in section 3 of the National Disability Insurance Scheme Act 2013 (Cth) (ndis Act), which states that one of the objects of the Act, in conjunction with other laws, is to give effect to Australia’s obligations under crpd.304
5.7.1 Policies and Initiatives of Relevance to cRpd
The National Disability Strategy 2010–2020 (nds) is the primary framework to give effect to crpd in Australia. All state and territory governments are signatories to the nds. The nds states that it adopts the principles in article 3 of crpd and that its six policy areas are aligned to articles of crpd, including priority area 2: ‘Rights protection, justice and legislation’.305 Although the nds has developed significant reforms, civil society and academic research have raised concerns around the implementation, monitoring and evaluation of the strategy.306
In 2013 the federal government established the National Disability Insurance Scheme (ndis), which provides individuals with a permanent and significant disability with direct funding to access the supports and services they need in order to live independently and participate in the community. When it is fully rolled out by 2019–2020, the ndis will provide insurance for about 460 000 Australians aged under 65.307 Civil society, persons with disabilities and their
On 23 July 2013 the alrc received terms of reference to undertake an inquiry into laws and legal frameworks within the Commonwealth jurisdiction that deny or diminish the equal recognition of persons with disabilities as persons before the law and their ability to exercise legal capacity. crpd was explicitly referred to in the inquiry’s terms of reference. The final report was tabled in the Australian Parliament on 24 November 2014.310 There has been no official government response to this report.311
On 5 April 2019, the Australian government announced the establishment of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability. The terms of reference for this Royal Commission contain an explicit reference to crpd and recognise the human rights of persons with disabilities under crpd.
5.7.2 Use by Courts
The Administrative Appeals Tribunal (aat) has directly referred to articles of crpd to interpret sections of the ndis Act,312 as well as to determine the meaning of ‘reasonable and necessary supports’, which is not defined under the Act. However, in Pavilupillai and National Disability Insurance Agency [2018] aata 4641, the Tribunal declined to read into section 34(1)(b) of the ndis Act the general principles of article 3 of crpd, due to its adherence to traditional principles of statutory construction.313
The Supreme Court of Victoria has relied on crpd when interpreting Victoria’s Human Rights Charter. The Court has noted that the Charter and crpd both reflect the paradigm shift whereby persons with a disability are treated not ‘as objects of social protection [but] as subjects with rights’.316 For example, in pbu & nje v Mental Health Tribunal and Nicholson v Knaggs, the Court considered article 12 of crpd in detail, the General Comment thereon, and the travaux préparatoires, to support a wide construction of the concept of ‘legal capacity’.317
In contrast, as explained below, the High Court failed to even cite crpd in a case about discrimination against deaf people with regard to service on juries, despite relevant CRPD jurisprudence.318
5.7.3 State Reporting and Its Impact
Australia submitted its first report to the cRpd Cttee in December 2010, and its combined second and third report was submitted on 7 September 2018. On average, Australia has been three months late in submitting its reports. Australia appeared before the crpd Cttee in 2013 and 2019. Ron McCallum believes that the government was disappointed in its first review. It expected more praise for the ndis, rather than criticism over its shortcomings.319
cos on Australia focus on topics such as the need to strengthen anti-discrimination laws to address intersectional discrimination; the continuing regime of substitute decision making; the use of prisons for the management of unconvicted persons with disabilities; the sterilisation of boys and girls with disabilities; violence, exploitation and abuse experienced by women and girls with disabilities; the failure to provide all information in accessible formats; segregated education; significant barriers in the voting process; and the lack
The cRpd Cttee’s cos are published on the agd website via a link to the ohchr website.320 However, that website lacks important accessibility features for persons with a disability.321
The crpd Committee has not requested that Australia provide additional information through a follow-up procedure. The ahrc and the ngo shadow report for the 2019 session acknowledged positive reforms since 2013, in particular aspects of the ndis and the establishment of the Royal Commission.322 However, many of the key recommendations from the 2013 cos have not been implemented. For example, there is no uniform national legislation to prohibit the sterilisation of persons with disability in the absence of their free, prior and informed consent.323
5.7.4 Individual Communications
Up to 30 June 2019 the crpd Cttee had finalised ten individual communications since the Optional Protocol entered into force for Australia in 2009. Of those, two were discontinued as subsequent developments rendered the complaints moot, one was inadmissible, and seven resulted in a finding of a violation. Three of the latter communications concerned the refusal to accommodate the author’s disability so that they could perform jury duty.324 Three more concerned the indefinite detention of cognitively-impaired men who
In all of its responses to cRpd on findings of violations, the government has disagreed with the findings. In some instances, the government nonetheless expressed an intention to provide some support to the complainant, and noted that it would be grateful for the Committee’s guidance on necessary and effective support measures.327
In Lyons v Queensland the High Court of Australia dismissed a complaint of discrimination under Queensland law by a deaf woman who had been excluded from a potential jury pool.328 In dismissing her claim, the High Court failed to acknowledge the crpd decisions against Australia on that exact issue.
The crpd Cttee’s follow-up reports to the complaints procedure, issued since 2013, do not contain a report on any of the communications against Australia.
5.7.5 Treaty Body Membership
Professor Ron McCallum ao was elected as an Australian member of the crpd Cttee from 2008 to 2014 and held the position of Chairperson of the Committee from 2010 to 2012, and Vice-Chairperson from 2013 to 2014. In 2011 and 2012 he chaired the meetings of all of the treaty body chairs. Rosemary Kayess was elected as a member of the crpd Cttee in 2018. She was swiftly appointed to Vice-Chairperson in 2019, before being elevated to Chairperson in 2021.
5.7.6 Brief Conclusion
crpd has been impactful in Australia with regard to amendments to the pre-existing dda, as well as the development and implementation of the National Disability Strategy, including the ndis. The government’s response to cRpd’s assessments of the ndis will be instructive of its overall approach to treaty body engagement. So far, the communications procedure has had a minimal impact, despite there being a reasonably large number of communications in
6 Conclusion
Since 1999 Australia has become a party to crpd, and Optional Protocols to crc, cedaw and cat. The UN core treaties to which Australia is a party have influenced Australian law. cerd, cedaw and, since 1999, the op2-ccpr and cat have been largely incorporated into Australian law. In descending order, partial incorporation has taken place regarding cRpd, crc and ccpr, with cescr lacking translation into domestic laws. An exception arises regarding ccpr in Victoria, Queensland and the act and, to a much lesser extent, cescr in the latter two jurisdictions. All of the sub-national human rights statutes have been adopted since 1999. Important policies adopted since 1999, particularly in the areas of disability rights, children’s rights and, possibly, violence against women,329 have been influenced by Australia’s treaty obligations.
Furthermore, the adoption of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) ensures that human rights are considered in the policy-making process and by the members of a joint parliamentary committee. However, it has not noticeably led to greater human rights compliance in legislation.
While the treaties themselves have had an influence, Australia’s interactions with the UN treaty bodies on the whole are disappointing. While it complies procedurally by submitting reports, and submitting information on communications and urgent actions, its implementation of cos and Committee views is minimal, with some standout exceptions such as the 2008 cos from the cat Cttee. Australia is developing a reputation as a ‘recalcitrant state’, according to Senator Nick McKim of the Australian Greens party.330
Australia’s relationship with the treaty bodies has deteriorated since the first volume of this book. The nadir in the relationship between Australia and the treaty bodies, which roughly lasted from 1999 to 2007, has passed. However, it is perhaps true that Australia’s commitment to the treaty body processes has never fully recovered.331
Interactions and impact might improve with reforms to the treaty body processes. As noted above, Australian governments, including its public service,
While the former agd officer felt that Australian governments see value in being a ‘good international citizen, domestic political considerations will “always win the day”’.333 Currently, Australia’s human rights obligations do not figure within those considerations for many reasons, including apathy and even scepticism from the public and the media. As explained by the alp Shadow Minister, polling has indicated that Australians generally care less about ‘international perceptions and international affairs when they are asked than was the case 20 or 30 years ago’.334 In that case, governments too are going to take less account of the statements of international bodies.335
The most likely catalyst for an improvement in Australia’s record of treaty implementation is a significant intensification of domestic political pressure, including from the media. Such an increase in pressure seems unlikely at present, especially in an international environment of rising nationalism where skepticism over multilateral initiatives is growing rather than receding.336
See acoss and unsw Sydney, ‘Inequality in Australia 2018’ <
See Sarah Joseph and Melissa Castan, Federal Constitutional Law: A Contemporary View (5th edn, Thompson Reuters 2019) paras 1.155–1.170.
ibid, ch 12.
ibid, ch 13. An ‘implied’ right is one which is not explicit in the words of the Constitution.
Senior government official who works on human rights implementation, interview, telephone, 20 August 2019. All interviews are on file with the authors. Interviewees are only named where they agreed to such.
See, eg, HRCttee, cos on Australia, UN Doc ccpr/c/aus/co/6, paras 5 and 6 (1 December 2017).
Human Rights Act 2004 (Act); Charter of Human Rights and Responsibilities Act 2006 (Vic); Human Rights Act 2019 (Qld).
See eg Bugmy v R [2013] hca 37; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 clr 144; Brown v Tasmania (2017) 261 clr 328; and Roach v Electoral Commissioner (2007) 233 clr 162.
See eg Al-Kateb v Godwin (2004) 219 clr 562; Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 clr 486; Magaming v R [2013] hca 40; Thomas v Mowbray (2007) 233 clr 307.
See Australian Human Rights Commission Act 1986 (Cth).
These are known as the Paris Principles; see General Assembly Resolution 48/134 (20 December 1993).
Shalailah Medhora and Ben Doherty, ‘Tony Abbott Calls Report on Children in Detention a “Transparent Stitch-Up”’ The Guardian (12 February 2015) <
It is arguable that the ahrc faced government hostility simply for doing its work: Sarah Joseph, ‘Australia’s Exceptionalism: Antipathy Towards Human Rights’ in Paula Gerber and Melissa Castan (eds), Critical Perspectives on Human Rights in Australia: Volume 2 (Thomson Reuters, 2022).
ahrc, Information Concerning Australia’s Compliance with the International Covenant on Civil and Political Rights, UN Doc int/ccpr/nhs/aus/28980/e, 18 September 2017; Disability Rights Now, 2019 Australian Civil Society Shadow Report to the United Nations Committee on the Rights of Persons with Disabilities: UN crpd Review 2019, UN Doc int/crpd/css/aus/35639/e; and Australia’s 3rd Universal Periodic Review: Joint ngo Submission on Behalf of the Australian ngo Coalition (April 2020) <
Australian Law Reform Commission, ‘Pathways to Justice: Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples’ (March 2018), available via <
See Janet Phillips and Harriet Spinks, ‘Boat Arrivals in Australia Since 1976’ Parliament of Australia, 23 July 2013 <
The first of many such decisions was A v Australia UN Doc ccpr/c/59/d/560/1993 (3 April 1997).
ahrc, ‘Lives on Hold: Refugees and Asylum Seekers in the “Legacy Caseload”’ (2019), Appendix 1: Timeline of Legal and Policy Developments Affecting People in the Legacy Caseload <
See HRCttee, cos on Australia, UN Doc ccpr/c/aus/co/6 (9 November 2017) para 35(a).
The first argument exaggerates the numbers that arrived in Australia, while the second argument uses the asylum seekers and refugees on Nauru and png as a means to an end: Their despair is being used to deter others: Sarah Joseph, ‘Operation Sovereign Borders, Offshore Detention and the “Drownings Argument”’ The Conversation (24 July 2015).
National Human Rights Consultation, Report (September 2009), Recommendation 18 <
Human Rights Law Resources Centre, Australia’s Human Rights Framework (22 April 2010) <
Adam Fletcher, Australia’s Human Rights Scrutiny Regime (mup, 2018). It is unlikely that the effectiveness of the system has improved significantly since those first four years.
ibid 87–95.
Phil Lynch, Director of International Service for Human Rights and former Director, Human Rights Law Centre, interview, Geneva, 8 May 2019.
See Australian ngo Coalition Submission to the HRCttee, Australia’s Compliance with the iccpr UN Doc int/ccpr/ngo/aus/28925/e (September 2017) Part 16.
Joseph and Castan (n 2) paras 4.20–4.55.
Simon Rice, Professor of Law, University of Sydney, interview, telephone, 15 July 2019.
See Sarah Joseph, ‘The Howard Government’s Record of Engagement with the International Human Rights System’ (2008) 27 Australian Year Book of International Law 45, 54–58. See further Spencer Zifcak, Mr Ruddock Goes to Geneva (unsw Press 2003).
For a further overview of Australia’s engagement with the UN from 2007–2013, see Australia and the UN: Report Card 2013, UN Association of Australia, 2013 <
See ‘Abbott says Australians “Sick of Being Lectured to by UN” After Scathing Report on Asylum Policies’ abc News Online (9 March 2015) <
Phil Lynch stated at the interview (n 25) that the engagement under the coalition since 2013 was similar to that under the preceding alp government, aside from the fractious issue of refugees.
A Shadow Minister stated at the interview (video, 18 July 2019) that Australia’s human rights record was the least one could expect of a ‘developed, advanced representative democracy like Australia … we could be doing things so much better’.
This point, regarding Australia’s overall compliance but lack of specific responsiveness to international human rights obligations, was also made by Phil Lynch at the interview (n 25).
Shadow Minister, interview (n 33).
Indeed, the alp for many decades pledged to abolish federalism: See Brian Galligan and David Mardiste, ‘Labour’s Reconciliation with Federalism’ (1992) 27 Australian Journal of Political Science 71.
Senior dfat officer, interview, telephone, 6 May 2019.
Human Rights Council of Australia (hca), ‘Australian Ratification of the Migrant Workers’ Conventions – Responses to Concerns Raised by the Australian Government, 2012’. The reasons are gleaned from a communication between the then Attorney-General, Nicola Roxon, and the hca.
ibid 7.
‘Universal Periodic Review monitoring: Recommendation 50’ Australian Government Attorney-General’s Department (Web page, 2012) <
Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), ss 8 and 9.
See, eg, HRCttee, cos on Australia, UN Doc ccpr/c/aus/co/6 (1 December 2017) paras 11–12.
Simon Rice, interview (n 28).
Fletcher (n 23). It is unlikely that the effectiveness of the system has improved significantly since those first four years. Civil society interviewees, such as Phil Lynch (n 25), as well as Ron McCallum, former Chairperson of the crpd Committee (interview, telephone, 15 May 2019), felt that the framework was ineffective. Cf Zoe Hutchison and Kate Mitchell, ‘Australia’s Human Rights Scrutiny Regime’ (2019) 25(2) Australian Journal of Human Rights 346 (a review of Fletcher’s book by members of the pjchr’s secretariat, arguing that the scrutiny regime has been relatively successful given general constraints on parliamentary committee influence).
See Stephen Easton, ‘”Top-Heavy” Human Rights Commission Straining Under Cuts’ The Mandarin (9 May 2016) <
See, eg, Sarah McCosker, formerly of agd, interview, telephone, 16 May 2019; senior government official who works on human rights implementation, interview (n 5); senior dfat officer, interview (n 37), Ron McCallum, interview (n 44).
The example given by a former senior agd officer, interview, via telephone, 21 May 2019; was that of arbitrary detention and the Immigration Department.
Former senior agd officer, interview (n 47). senior government official who works on human rights implementation, interview (n 5). However, a Shadow Minister felt that there was ‘a great ahistoricity’ about debates about freedom of religion in Australia, interview (n 33).
Fletcher (n 23).
Former agd officer, interview (n 47); Shadow Minister, interview (n 33).
This conclusion is reached after searches for the treaty acronyms via the Factiva database. See also Fletcher (n 23) 242–249.
See, eg, Ben Doherty, ‘Report on Australia’s Human Rights Record to be Scrutinised by UN committee’ The Guardian (16 October 2017)
Nick Poynder, barrister involved in individual communications, interview, telephone, 13 May 2019. See also Olivia Ball, ‘Because Every Human Rights Violation Should Be Remedied’ in Corinne Lennox, Contemporary Challenges in Securing Human Rights (Institute of Commonwealth Studies 2015) 105, 108.
Olivia Ball, Remedy Australia, interview, Melbourne, 19 July 2019.
See R Finkelstein, ‘Report of the Independent Inquiry into the Media and Media Regulation’ (28 February 2012), Table 3.1 60, a graph from the International Media Concentration Project <
See, eg, Father Frank Brennan SJ AO, ‘The Practical Outcomes of the National Human Rights Consultation’ Address to Judicial College of Australia Colloquium (12 October 2013) <
It is likely that the same will occur in Queensland, now that its Human Rights Act has come into force as from 2020. See, eg, Victorian Equal Opportunity and Human Rights Commission, 2018 Report on the Operation of the Charter of Human Rights and Responsibilities, ch 4 <
Nick Poynder, interview (n 53).
See, eg, ahrc, Children’s Rights Report 2019 – In Their Own Right <
See the AusHRC series available via austlii.edu.au.
See, eg, Law cpd, Gillian Triggs, ‘Human Rights in Australia: A Charter of Rights and Responsibilities?’, online cpd course, accessed 18 March 2022. There are also human rights committees in the legal professional organisations nsw and Victoria that organise occasional professional development events.
Nick Poynder, interview (n 53).
Simon Rice, interview (n 28).
See, eg, Disabled People’s Organisations Australia, ‘People with Disability to Take Concerns to the United Nations’ (21 August 2019) <
Simon Rice, interview (n 28).
Ben Schokman, human rights consultant, interview, Melbourne, 9 May 2019. See also Rachel Ball, Head of Policy and Advocacy Oxfam Australia, interview Melbourne, 14 May 2019; Olivia Ball, interview (n 54).
Simon Rice, interview (n 28); Olivia Ball, interview (n 54).
See National Human Rights Consultation, Appendix B Colmar Brunton Community Research Report: Summary <
McCosker, interview (n 46). The shadow Minister also noted a disturbing trend that for over 30 years Australians ‘have come to accept that lesser rights can be afforded to people who are not Australian citizens’; interview (n 33).
dfat officer, interview (n 37).
Shadow Minister, interview (n 33).
Nick Poynder, interview (n 53).
Rachel Ball, interview (n 66); Nick Poynder agreed, interviews (n 53).
Olivia Ball, interview (n 54). Ben Schokman, essentially agreed, interview (n 66). Ron McCallum felt that ‘people only get concerned about human rights when they affect them’; interview (n 44).
Olivia Ball, interview (n 54).
Senior government official who works on human rights implementation, interview (n 5).
Former agd officer, interview (n 47). Senator Nick McKim of the Australian Greens party, (interview, telephone, 29 August 2019) agreed.
However, Olivia Ball stated at the interview (n 54) that she felt she had to go overseas to do a Masters in human rights law in the early 2000s.
Simon Rice, interview (n 28). Ron McCallum agrees, interview (n 44).
Interviewees generally agreed with this statement.
Olivia Ball, interview (n 54): ‘Human rights is perceived as something that lawyers do’.
See, eg, Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases Materials and Commentary (3rd edn, oup 2013); Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials (oup 2014); John Tobin, The UN Convention on the Rights of the Child: A Commentary (oup 2019).
Phil Lynch, interview (n 25), former agd law officer, interview (n 47), Ben Schokman, interview (n 66), Ron McCallum, interview (n 44) agreed.
Rachel Ball, interview (n 66), Ron McCallum, interview (n 44), Simon Rice, interview (n 28), Ben Schokman, interview (n 66).
See Sarah McCosker, interview (n 46), senior government official who works on human rights implementation, interview (n 5).
Senior government official who works on human rights implementation, interview (n 5).
Some delays have been as long as two or three years.
Senior dfat officer, interview (n 37); Rachel Ball, interview (n 66), however, was sceptical about the utility of that consultation for ngos. She did not feel such consultation was reflected in the final reports.
This information emanates from Darren Dick of the ahrc (email on file with authors).
Australian Government, Common Core Document Forming Part of the Reports of States Parties – Australia – Incorporating the Fifth Report under the International Covenant on Civil and Political Rights and the Fourth Report under the International Covenant on Economic, Social and Cultural Rights (June 2006) available via <
Phil Lynch, interview (n 25). Rachel Ball, interview (n 66) and Ben Schokman, interview (n 66) agreed.
As stated by Simon Rice, interview (n 28): ‘Nothing is ever volunteered that is adverse’.
Simon Rice, interview (n 28).
See, eg, ahrc, ‘Information Concerning Australia’s Compliance with the Convention on the Rights of Persons with Disabilities’ UN Doc int/crpd/nhs/aus/35594/e (25 July 2019); and ahrc, ‘Information Concerning Australia’s Compliance with the cerd’ UN Doc int/cerd/ifn/aus/29335/e (30 October 2017).
See, eg, Australian ngo Coalition Submission to the HRCttee, Australia’s Compliance with the iccpr UN Doc int/ccpr/ngo/aus/28925/e (September 2017); and Australian ngo Coalition, cedaw Shadow Report 2018, UN Doc int/cedaw/ngo/aus/31435/e.
Rachel Ball, interview (n 66).
Ben Schokman, interview (n 66). See also Simon Rice, interview (n 28).
See Treaty Body Reporting, Attorney-General’s Department <
Senior government official working on human rights implementation, interview (n 5).
Senior dfat officer, interview (n 37).
Simon Rice, interview (n 28).
Sarah McCosker, interview (n 46).
Senior dfat officer, interview (n 37).
Former senior agd officer, interview (n 47).
Phil Lynch, interview (n 25).
Human Rights Communications, Attorney-General’s Department <
Ben Schokman, interview (n 66).
See also Olivia Ball interview (n 54) 106; Rachel Ball agreed, interview (n 66).
Senior dfat officer, interview (n 37).
Phil Lynch stated at the interview that Australia’s record of implementation was ‘very very poor’, interview (n 25). See, eg, the HRCttee’s concern over Australia’s failure to implement its views and the fact that victims have not received reparation: HRCttee, cos on Australia UN Doc A/55/40, 2000 paras 520–521; and HRCttee, cos on Australia UN Doc ccpr/c/aus/co/5 (7 May 2009) para 10.
See, eg, Australian Government, Response of the Australian Government to the Views of the HRCttee in Communication No 2005/2010 Hicks v Australia; and Noble v Australia, Communication 7/2012, UN Doc crpd/c/16/d/7/2012, views of 2 September 2016.
For example, senior dfat officer, interview (n 37), former agd officer, interview (n 47).
Senior dfat officer, interview (n 37).
Phil Lynch, interview (n 25).
Such concerns arose in conversations that Sarah Joseph, one of the authors of this chapter, had over the viability of a complaint regarding marriage equality.
Olivia Ball, interview (n 54); see also Ball (n 53) 108.
ibid 107.
Phil Lynch, interview (n 25); see also Ben Schokman, interview (n 66).
Nick Poynder, interview (n 53) and Ron McCallum, interview (n 44) agreed.
Ball, interview (n 54); see also Ball (n 53) 106.
Former agd officer, interview (n 47).
Senior government official working on human rights implementation, interview (n5). The senior dfat officer agreed, interview (n 37).
Rachel Ball, interview (n 66). Phil Lynch, interview (n 25) and Simon Rice, interview (n 28) agreed.
Ben Schokman, interview (n 66).
Ron McCallum, interview (n 44).
Ball (n 53) 106: ‘No one felt any pressure to withdraw their UN complaint’.
In late 2020, outside the reporting period for this chapter, an Australian, Ms Natasha Stott-Despoja, was elected to the cedaw Committee.
Former senior member of the agd, interview (n 47). See also Simon Rice, interview (n 28).
Ben Schokman, interview (n 66) and Rachel Ball, interview (n 66).
Sarah McCosker, interview (n 46), Simon Rice, interview (n 28) and Ben Schokman, interview (n 66).
Senior dfat official, interview (n 37). He was focusing on immigration cases, but the comment also seemed to apply beyond that context.
Senior government official who works on human rights implementation, interview (n 5). This sentiment was shared by a senior dfat officer, interview (n 37).
Senior government official who works on human rights implementation, interview (n 5). A former senior agd officer added that Australian representatives would add ‘a common law perspective’, interview (n 47).
Simon Rice, interview (n 28). This point was also made in interviews with the senior government official who works on human rights implementation, interview (n 5) and Ron McCallum, interview (n 44).
Senior government official who works on human rights implementation, interview (n 5).
Ron McCallum, interview (n 44).
Rachel Ball, interview (n 66).
Phil Lynch, interview (n 25).
Racial Hatred Bill 1994. See also Australian Human Rights Commission, ‘Race Hate and the rda’ <
The ruling coalition from 2013–2022 professed a desire to roll back the civil offences in s 18C of the Racial Discrimination Act 1975 (Cth), but it lacked the numbers in the upper house of Parliament to do so.
See cerd, cos on Australia, UN Doc cerd/c/aus/co/18–20 para 3.
See Australia’s support of the undrip, Australian Human Rights Commission, 2008 <
The complexities and background to the intervention are explained in ahrc, ‘The Suspension and Reinstatement of the rda and Special Measures in the nter’ (2011) <
Commonwealth v Yarmirr [2001] hca 56 para 294, Gleeson CJ, Gaudron, Gummow and Hayne JJ.
For a full analysis, see eg Patrick Wall, ‘The High Court of Australia’s Approach to the Interpretation of International Law and its Use of International Legal Materials in Maloney v The Queen’ (2014) 15(1) Melbourne Journal of International Law 211.
Maloney v The Queen [2013] hca 28 paras 175–176.
See Patrick Wall, ‘A Marked Improvement: The High Court of Australia’s Approach to Treaty Interpretation in Macoun v Commissioner of Taxation [2015] hca 44’ (2016) 17(1) Melbourne Journal of International Law 170. See eg Western Australia v Ward [2002] hca 28 para 658 (fn 769).
See Joseph (n 29) 54–58; Zifcak (n 29).
See David Cooper, ‘Australia Before the UN cerd Committee’ abc Radio National – Perspective (18 March 2005) <
See eg cerd Committee, List of Themes in Relation to the Combined Eighteenth to Twentieth Periodic Reports of Australia UN Doc cerc/c/aus/q/18-20 (19 September 2017).
cerd Committee, ‘Information Received from Australia on Follow-Up to the cos’ UN Doc cerd/c/aus/co/18-20/Add.1 (27 December 2018); cerd Committee, ‘Information Received from the Government of Australia on the Implementation of the cos’ UN Doc cerd/c/Aus/co/15-17/Add.1 (4 October 2011) and ‘Comments by the Government of Australia on the cos of the Committee on the Elimination of Racial Discrimination’ UN Doc cerd/c/aus/co/14/Add.1 (16 May 2006).
Australia’s Compliance with the International Convention on the Elimination of All Forms of Racial Discrimination – Australian ngo Coalition Submission to the UN Committee on the Elimination of Racial Discrimination, October 2017 (UN Doc int/cerd/ngo/aus/29334/e) 4.
See ahrc, ‘Anti-Racism in 2018 and Beyond’ (2015–2018): <
Hagan v Australia UN Doc cerd/c/62/d/26/200214 (20 March 2003).
See Remedy Australia, Hagan v Australia <
See Sarah Prichard, ‘Stirrings: Early Warning/Urgent Action Decision Concerning Australia and the UN Committee on the Elimination of Racial Discrimination’ (1998) 4(15) Indigenous Law Bulletin 17.
See further Jane Robbins, ‘Aboriginal Legal Aid Funding: Discriminatory Policy or a Failure of Federalism?’ (2009) 7(10) Indigenous Law Bulletin 15.
See further Wangan and Jagalingou Family Council, ‘Australia’s Ongoing Violation of its Obligations Under the International Convention on the Elimination of All Forms of Racial Discrimination and its Failure to Protect the Indigenous Wangan and Jagalingou People from Human Rights Violations Arising from the Development of the Carmichael Coal Mine on Our Ancestral Homelands’ UN Doc int/cerd/ngo/aus/29370/e (31 October 2017).
See John Gardiner-Garden, ‘Overview of Indigenous Affairs: Part 2: 1992–2010’ Australian Parliamentary Library (10 May 2011) <
See Australia’s Compliance with the icerd Australian ngo Coalition Submission to the UN cerd Committee (October 2017) 41–42 <
David Kinley, Jennifer Beard and Peter Thomson, ‘Australia’ in Christof Heyns and Frans Viljoen (eds), The Impact of the UN Human Rights Treaties on the Domestic Level (Kluwer Law International 2002) 51.
International Covenant on Civil and Political Rights: Reservations, 1197 unts 411. See also Australian Government, Third Periodic Report to the HRCttee: Addendum UN Doc ccpr/c/aus/98/3 (22 July 1999) para 625; and Australian Government, Sixth Periodic Report to the HRCttee UN Doc ccpr/c/aus/6 (2 June 2016) paras 47–48.
Australian Government, Third Periodic Report to the HRCttee: Addendum UN Doc ccpr/c/aus/98/3 (22 July 1999) para 625.
ibid.
HRCttee, cos on the Sixth Periodic Report of Australia UN Doc ccpr/c/aus/co/6 (9 November 2017) paras 5–6; and HRCttee, cos on the Fifth Periodic Report of Australia, UN Doc ccpr/c/aus/co/5 (7 May 2009) para 8.
See Migration Amendment (Complementary Protection) Bill 2011 (Cth), Explanatory Memorandum.
National Disability Insurance Scheme Act 2013 (Cth) s 3(1)(i).
The right is mentioned in the Preamble to the Queensland Act.
See, eg, Scrutiny of Acts and Regulations Committee, Review of the Charter of the Victorian Charter of Rights and Responsibilities 2006 <
Australian Government, Sixth Periodic Report to the HRCttee UN Doc ccpr/c/aus/6 (2 June 2016) paras 28–46.
Senior government official who works on human rights implementation, interview (n 5).
See Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws, alrc Report 129 (December 2015), which assessed federal laws that interfered with ‘traditional rights and freedoms’ (which cover a few select iccpr rights), but which did not come to conclusions as to whether those interferences constituted breaches of international human rights law.
See Australian Government, Sixth Periodic Report to the HRCttee UN Doc ccpr/c/aus/6 (2 June 2016).
Independent National Security Legislation Monitor Act 2010 (Cth), arts 3 and 8.
See eg Independent National Security Legislation Monitor, Report to the Prime Minister: The Prosecution and Sentencing of Children for Terrorism, Dr James Renwick sc, 3rd inslm 2018 5th Report, via <
Australian ngo Coalition Submission to the HRCttee, Australia’s Compliance with the iccpr UN Doc int/ccpr/ngo/aus/28925/e (September 2017) 12.
(1992) 1 clr 175.
HRCttee, cos on Australia UN Doc ccpr/c/aus/co/5 (7 May 2009) para 8.
[2017] hca 34.
See also Re Woolley [2004] hca 49 paras 108–116; Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] hca 20 para 171.
Coleman v Power [2004] hca 39 para 240. See also Attorney-General (wa) v Marquet [2003] hca 67 paras 172–186; and Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] hca 36 paras 125–129.
[2010] vsc 310.
HRCttee, Report of the Special Rapporteur for Follow-Up on cos of the HRCttee UN Doc ccpr/c/104/2 (27 April 2012) 14–16.
ibid.
Australian Government, Information Provided by Australia on the Follow-Up to the cos of the Committee UN Doc int/ccpr/fco/aus/11695/e (3 February 2012) 2.
See, eg, HRCttee, List of Issues Prior to the Submission of the Sixth Periodic Report of Australia, adopted by the Committee at its 106th session, UN Doc ccpr/c/aus/Q/6 (9 November 2012) para 7.
Australian ngo Coalition Submission to the HRCttee, Australia’s Compliance with the iccpr UN Doc int/ccpr/ngo/aus/28925/e (September 2017) 9.
HRCttee, cos on Australia UN Doc ccpr/c/aus/co/6 (1 December 2017) para 56.
Toonen v Australia UN Doc ccpr/c/50/d/488/1992 (31 March 1994).
See also Malcolm Langford and Cosette D. Creamer, ‘The Toonen decision: domestic and international impact’, SSRN, 3 November 2017, <
These cases covered the following issues: Shafiq v Australia UN Doc ccpr/c/88/d/1324/2004 (31 October 2006) is one of many cases concerning detention pursuant to the mandatory immigration detention regime; fkag v Australia UN Doc ccpr/c/108/d/2094/2011 (20 August 2013) concerned the indefinite detention of refugees on security grounds; Fardon v Australia UN Doc ccpr/c/98/d/1629/2007 (10 May 2010) concerned preventive detention orders extending beyond the expiry of a sentence; Hicks v Australia UN Doc cpr/c/115/d/2005/2010 (5 November 2015) concerned the detention by Australia of David Hicks after he had been released from Guantanamo Bay pursuant to an arrangement with the United States.
Blessington and Elliot v Australia UN Doc ccpr/c/112/d/1968/2010 (3 November 2014).
fj & Others v Australia UN Doc ccpr/c/116/d/2233/2013 (22 March 2016) concerned psychological harm caused by immigration detention.
Young v Australia UN Doc ccpr/c/78/d/941/2000 (6 August 2003).
Nystrom v Australia UN Doc ccpr/c/102/d/1557/2007 (18 July 2011).
Z v Australia UN Doc ccpr/c/115/d/2279/2013 (5 November 2015).
Winata v Australia UN Doc ccpr/c/72/d/930/2000 (26 July 2001).
See, eg, responses to hrc decisions available via <
See Ben Doherty, ‘’Unacceptable: UN Committee Damns Australia’s Record on Human Rights’ The Guardian (19 October 2017) <
Horvath v Australia, UN Doc ccpr/c/110/d/1885/2009 (27 March 2014).
See, eg, Australian Government, Response of the Australian Government to the Views of the Committee in Communication No 1885/2009, Horvath v Australia, via <
Senior dfat officer, interview (n 37).
See, eg, remedy.org.au.
See, generally, Remedy Australia, Follow-up Report on Violations by Australia of icerd, iccpr & cat in Individual Communications (1994–2014) (11 April 2014) <
Kwok v Australia UN Doc ccpr/c/97/d/1442/2005 (23 October 2009).
Campbell v Australia UN Doc ccpr/c/119/d/2216/2012 (1 November 2017).
G v Australia UN Doc ccpr/c/119/d/2172/2012 (17 March 2017).
See fkag v Australia UN Doc ccpr/c/108/d/2094/2011 (28 October 2013).
Leghaei v Australia UN Doc ccpr/c/113/d/1937/2010 (15 May 2015).
arj v Australia UN Doc ccpr/c/60/d/692/1996 (11 August 1997).
Kinley, Beard and Thomson (n 161) 51.
hrlrc, Australia’s Ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (July 2009) 12–20.
Senior government official who works on human rights implementation, interview (n 5).
Their inclusion in Queensland is explained by ‘stakeholder support’. See Explanatory Note, Human Rights Bill 2018 (Qld) 11.
See Australian Government, Australia’s Fifth Report under the International Covenant on Economic, Social and Cultural Rights UN Doc e/c.12/aus/5 (1 February 2016) para 74.
See Alan Duncan and Rebecca Cassells, ‘Government Spending Explained in 10 charts; From Howard to Turnbull’ The Conversation (9 May 2017) <
Purvis v nsw (2003) 217 clr 92 164 (fn 148).
wbm v Chief Commissioner of Police (2012) 43 vr 446, 483; also zz v Secretary, Dept of Justice [2013] vsc 267 paras 80–82 (Bell J).
pbu & nje v Mental Health Tribunal [2018] vsc 564 para 97–99.
cescr Cttee, cos on Australia UN Doc e/c.12/1/Add.50 (11 September 2000) paras 14–23.
cescr Cttee, cos on the Fifth Periodic Report of Australia UN Doc e/c.12/aus/co/5 (11 July 2017) paras 11, 13, 21, 27, 29, 31.
cescr Cttee, cos on the Fifth Periodic Report of Australia – Addendum: Information Received from Australia on Follow-Up to the cos UN Doc e/c.12/aus/co/5/Add.1 (8 January 2019) (received 21 December 2018).
cescr Cttee, cos on the Fifth Periodic Report of Australia – Addendum: Information Received from Australia on Follow-Up to the cos UN Doc e/c.12/aus/co/5/Add.1 paras 7–15.
ibid paras 4–6.
See Kinley, Beard and Thomson (n 161) 52. The seminal Tasmanian Dams case (Commonwealth v Tasmania (1983) 158 clr 1), which finally confirmed the profound impact of treaty ratification on the constitutional scope of federal legislative authority, was decided on 1 July 1983.
See Convention on the Elimination of All Forms of Discrimination against Women: Reservations 1325 unts 378.
ibid.
See depositary notification c.n.592.2018.treaties-iv.8 of 14 December 2018.
See Australian Government, Eighth Periodic Report on the Implementation of the cedaw UN Doc cedaw/c/aus/8 (8 December 2016) para 2.5.
Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 (Cth).
Department of Prime Minister and Cabinet, Office for Women <
See, eg, the National Plan to Reduce Violence against Women and their Children 2010–2022; the National Framework for Protecting Australia’s Children 2009–2020.
See Paid Parental Leave Act 2010 (Cth).
See ab v Registrar of Births, Deaths and Marriages [2007] fcafc 140 (29 August 2007).
See eg 1008090 [2010] rrta 1064 (25 November 2010) in relation to Mongolia; 1205511 [2013] rrta 4 (9 January 2013) in relation to Bosnia; 1005606 [2010] rrta 801 (17 September 2010) in relation to Malawi or 0904059 [2009] rrta 998 (30 October 2009) in relation to Mauritius.
Simon Rice, interview (n 28).
See Commonwealth Office of the Status of Women, Australia’s Combined Fourth and Fifth Reports to the UN on the cedaw, UN Doc cedaw/c/aul/4–5 (June 2003) paras 14–15.
cedaw Cttee, cos on Australia UN Doc cedaw/c/aul/co/7 (30 July 2010) paras 14–45; also cos on Australia, UN Doc cedaw/c/aus/co/8 (20 July 2018) paras 8–58.
Australian Government, Information Provided by Australia on the Follow-Up to the cos of the Committee UN Doc cedaw/c/aul/co/7/Add.1 (17 December 2012) paras 7–121.
ibid paras 122–196.
ahrc, Independent Interim Report on cedaw (31 August 2012) <
ibid.
Kinley, Beard and Thomson (n 161) 52.
See Criminal Code Act 1995 (Cth) s 274.3.
See Migration Amendment (Complementary Protection) Bill 2011 (Cth), Explanatory Memorandum.
See Attorney-General’s Department, Prohibition on Torture and Cruel, Inhuman or Degrading Treatment or Punishment <
See further apt, Implementation of the opcat in Federal and Decentralised States (March 2011) <
See Royal Commission into the Detention and Protection of Children in the nt <
See Cth Ombudsman, Implementation of the OPCAT: Baseline Assessment of Australia’s OPCAT Readiness, September 2019: <
See Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 (nt); Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Act 2018 (act).
See ahrc, opcat (19 June 2018) <
See Ombudsman media release (n 249).
See Minister for Foreign Affairs, ‘Improving Oversight and Conditions in Detention’ Media Release (9 February 2017) <
See wa oics <
See eg nsw Inspector of Custodial Services <
Minister for Immigration and Citizenship v szqrb [2013] fcafc 33 paras 246–248, 297.
See cpcf v Minister for Immigration and Border Protection (2015) 25 clr 514.
sztal v Minister for Immigration and Border Protection; sztgm v Minister for Immigration and Border Protection [2017] hca 34.
ibid paras 84–91.
See eg 0807987 [2009] rrta 591; N99/27139 [1999] rrta 676; 1008846 [2011] rrta 14, and 1301683 [2013] rrta 765.
1301683 [2013] rrta 765.
See cat Cttee, cos on Australia UN Doc cat/c/aus/co/4–5 (23 December 2014) paras 9–20.
See, eg, cat Cttee, cos on Australia, UN Doc cat/c/aus/co/3 (22 May 2008) paras 8 and 15.
Australian Government, Information on Follow-Up to the cos UN Doc cat/c/aus/co/3/Add.1 (29 May 2009).
Australian Government, Information on Follow-Up to the cos UN Doc cat/c/aus/co/4–5/Add.1 (26 November 2015).
See Attorney-General’s Department, ‘Human Rights Communications’ <
ibid para 29. See also Response of the Australian Government to the Views of the cat Committee in Communication 701/2015 (hk v Australia) (17 April 2018) para 20.
See mps v Australia UN Doc cat/c/28/d/138/1999 (30 April 2002) and zt v Australia UN Doc cat/c/31/d/153/2000 (19 November 2003).
Thirugnanasampanthar v Australia UN Doc UN Doc cat/c/61/d/614/2014 (9 August 2017) para 6.2.
Ultimately, the cat Cttee did not find that the removal breached art 3.
Kinley, Beard and Thomson (n 161) 52.
Australian Government, op-sc: National Interest Analysis [2005] atnia 15 (11 October 2005).
See, eg, Castan Centre for Human Rights Law, Submission in Favour of Australia Signing and Ratifying the Third Optional Protocol to the Convention on the Rights of the Child (April 2012) <
See Australian Institute of Family Studies, Australian Child Protection Legislation <
ibid.
Australian Human Rights Commission, Submission to the Committee on the Rights of the Child (1 November 2018) para 25.
See Australian Government, op-sc: National Interest Analysis [2005] atnia 15 (11 October 2005).
See the Royal Commission into Institutional Responses to Child Sex Abuse <
Royal Commission into Institutional Responses to Child Sex Abuse, Final Report Recommendations, Recommendation 6.4.
The Royal Commission into the Protection and Detention of Children in the Northern Territory, Vol 2A 164–66.
Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report: Volume 6, Making Institutions Child Safe 13 and Recommendations 6.5 and 6.6.
ibid 35.
Australian Human Rights Commission, Media Release ‘coag endorses National Principles for Child Safe Organisations’ (19 February 2019) <
ibid.
Re: Jamie [2013] FamCAFC 110, paras 120–134.
B & B & Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCAFC 451 paras 293–288.
Re: B and B: Family Law Reform Act 1995 [1997] FamCAFC 33 paras 10.9–10.21.
Ralton & Ralton [2017] FamCAFC 182 para 18.
Kaur v Minister for Immigration and Border Protection [2017] fcafc 184; Paerau v Minister for Immigration and Border Protection [2014] fcafc 28; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] fca 875; and G v Minister for Immigration and Border Protection [2018] fca 1229.
Kaur v Minister for Immigration and Border Protection [2017] fcafc 184 paras 11–26; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] fca 875 para 59; Paerau v Minister for Immigration and Border Protection [2014] fcafc 28 para 103; and G v Minister for Immigration and Border Protection [2018] fca 1229, paras 217–219, 226–230.
See National Children’s and Youth Law Centre, ‘The End Child Marriage Australia: Research Report on the Forced Marriage of Children in Australia’ <
crc Cttee, cos on Australia crc/c/aus/co/5–6 (1 November 2019) paras 47–48. See also crc Cttee, cos on Australia UN doc crc/c/aus/co/4 (28 August 2012); and crc Cttee, UN doc crc/c/15/Add.268 (20 October 2005).
Australian Human Rights Commission, ‘Child Friendly Version of the United Nations Committee on the Rights of the Child’s cos’ <
crc Cttee, cos on Australia UN doc crc/c/aus/co/4 (28 August 2012) para 14.
See crc Cttee, cos on Australia UN doc crc/c/15/Add.268 (20 October 2005) paras 15–16; and crc Cttee, cos on Australia UN doc crc/c/aus/co/4 (28 August 2012) paras 17–18.
See Australian Government, Initial Reports Submitted by States Parties Under Article 35 of the crpd UN Doc crpd/c/aus/1 (7 June 2012) paras 9, 10, 55 and 107; and Australian Government, Combined Second and Third Periodic Reports Submitted by Australia Under Article 35 of the crpd, due in 2018 UN Doc crpd/c/aus/2–3 (7 September 2018) para 15.
See crpd Cttee, cos on Australia UN Doc crpd/c/aus/co/1 (21 October 2010) [9]. See ahrc, Information Concerning Australia’s Compliance with the Convention on the Rights of Persons with Disabilities UN Doc int/crpd/nhs/aus/35594/e (25 July 2019) para 10; Disability Rights Now, Information from Civil Society Organisations for List of Issues Prior to Reporting UN Doc int/crpd/ngo/aus/15451/e (August 2012).
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) <
For example, s 12 of the dda, which sets out the application of the Act, was amended to include an explicit reference to the crpd.
crpd Cttee, cos on the Initial Report of Australia UN Doc crpd/c/aus/co/1 (21 October 2013) para 14.
Ron McCallum, interview (n 44).
Convention on the Rights of Persons with Disabilities Declaration 2009 <
Australia’s 2nd-3rd reports to crc, UN Doc crpd/c/aus/2–3 (5 February 2019) paras 345–348.
National Disability Insurance Scheme Act 2013 (Cth) s 3(1)(a).
National Disability Strategy 2010–2020: An Initiative of the Council of Australian Governments 17, 22 <
University of New South Wales, Social Policy Research Centre, ‘Review of Implementation of the National Disability Strategy 2010–2020: Final Report’ (August 2018) <
At the age of 65, people can choose to move into the aged care system, or stay in the ndis system.
See People with Disability Australia, ‘ndis Campaign’ <
ahrc (n 308) paras 24–28.
alrc, ‘Equality, Capacity and Disability in Commonwealth Laws’ (August 2014) <
Disability Rights Now, 2019 Australian Civil Society Shadow Report to the United Nations Committee on the Rights of Persons with Disabilities: UN crpd Review 2019 UN Doc int/crpd/css/aus/35639/e 23.
pnfk and National Disability Insurance Agency [2018] aata 692, paras19–22 and 105.
Pavilupillai and National Disability Insurance Agency [2018] aata 4641, paras 68–69.
See, eg, Mulligan v National Disability Insurance Agency [2015] fca 544.
See, eg, Tropoulos v Journey Lawyers Pty Ltd [2019] fca 436 paras 147–148; Watts v Australian Postal Corporation [2014] fca 370 paras 18–21 and 54; and Munday v Commonwealth of Australia (No 2) [2014] fca 1123.
Nicholson v Knaggs [2009] vsc 64 para 13. See also pjb v Melbourne Health & Another (Patrick case) [2011] vsc 327 paras 130 and 333.
pbu & nje v Mental Health Tribunal [2018] vsc 564; Nicholson v Knaggs [2009] vsc 64.
Lyons v Queensland [2016] hca 38.
Ron McCallum, interview (n 44).
Australian Government Attorney-General’s Department, ‘Treaty Body Reporting’ <
Ron McCallum felt that they should be distributed in, for example, braille; interview (n 44).
Disability Rights Now, 2019 Australian Civil Society Shadow Report to the United Nations Committee on the Rights of Persons with Disabilities: UN crpd Review 2019 UN Doc int/crpd/css/aus/35639/e 10; and ahrc, Information Concerning Australia’s Compliance with the Convention on the Rights of Persons with Disabilities UN Doc int/crpd/nhs/aus/35594/e (25 July 2019) paras 25 and 28.
crpd Cttee, cos on the Initial Report of Australia UN Doc crpd/c/aus/co/1 (21 October 2013) paras 39–40; Disability Rights Now, 2019 Australian Civil Society Shadow Report to the United Nations Committee on the Rights of Persons with Disabilities: UN crpd Review 2019 UN Doc int/crpd/css/aus/35639/e 10; and ahrc, Information Concerning Australia’s Compliance with the Convention on the Rights of Persons with Disabilities UN Doc int/crpd/nhs/aus/35594/e (25 July 2019) para 6 and s 4.12.
See, eg, Lockrey v Australia UN Doc crpd/c/15/d/13/2013 (30 May 2016).
Noble v Australia UN Doc crpd/c/16/d/7/2012 (2 September 2016); Doolan v Australia UN Doc crpd/c/22/d/18/2013 (17 October 2019); Leo v Australia UN Doc crpd/c/22/d/17/2013 (18 October 2019).
Given v Australia UN Doc crpd/c/19/d/19/2014 (16 February 2018).
See, eg, Response of the Australian Government to the Views of the Committee on the Rights of Persons with Disabilities in Communication 7/2012 (Noble v Australia) paras 59–64.
Lyons v Queensland [2016] hca 38.
The extent to which these policies have been influenced by cedaw and the other treaties is uncertain.
Nick McKim, interview (n 77).
Simon Rice believed so at the interview (n 28).
Sarah McCosker, interview (n 46).
Former agd officer, interview (n 47).
Shadow Minister, interview (n 33).
The Shadow Minister added, however, that they cannot take ‘no account’, interview (n 33).
Also see Nick McKim, interview (n 77), Ben Schokman, interview (n 66).