Implementation is not optional: The Australian Government’s response to the views of UN treaty bodies

Implementation is not optional: The Australian Government’s response to the views of UN treaty bodies

Back in 2008, the Australian Government’s accession to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women was warmly welcomed. Many felt optimistic about its potential to contribute to the realisation of women’s rights in Australia. The Government’s National Interest Analysis, informed by submissions from individuals and organisations around the country, argued that:

[a]cceding to the Optional Protocol would give women in Australia greater opportunity to contest the implementation and application of human rights, thus providing for greater accountability within Australia for the promotion of gender equality and non-discrimination between men and women.

More than two years after the Optional Protocol’s entry into force, it is clear that accession has not yet increased accountability for women’s rights in Australia for the simple reason that the Optional Protocol has not been used. Of course, there is symbolic and educational value in Australia’s accession, but the Optional Protocol is primarily an accountability tool and symbolism and education alone will not ensure the realisation of women’s rights.

The absence of individual communications against Australia cannot be attributed to an absence of violations of women’s rights. For an outline of some areas of concern, see the Committee on the Elimination of Discrimination against Women’s most recent Concluding Observations on Australia.

The under-utilisation of the Optional Protocol mirrors a worldwide trend. Since its entry into force in 1999, the Committee on the Elimination of Discrimination Against Women has issued views on the merits of 10 individual communications (this post focuses on individual communications, rather than the Optional Protocol’s less popular inquiry function). Advocates have offered various explanations for the disuse of the Optional Protocol, including lack of awareness, difficulties fulfilling the exhaustion of domestic remedies requirement and insufficient access to legal assistance.

An additional deterrent in Australia is the ongoing failure of the Australian Government to implement treaty bodies’ decisions. It is entirely reasonable for a prospective victim/author to question the value of submitting an individual communication when they cannot be confident that the Government will implement, or even engage in a good faith consideration of, the Committee’s views in the event that a violation is found.

Committee views are not judicial decisions and are not binding in the way that decisions of domestic courts are binding. Nevertheless, by becoming party to an individual communications procedure, a State recognises the competence of the relevant treaty body to receive and make determinations on individual communications. It also assumes a legal obligation to cooperate in good faith with the Committee’s procedures and provide an effective remedy where a violation of human rights is found.

The Human Rights Committee’s General Comment on The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights states that views constitute an “authoritative” interpretation of the treaty, are “determinative” of states’ rights and obligations and that States Parties therefore have an obligation to “use whatever means lie within their power in order to give effect to the views issued by the Committee”.

The Australian Government’s track record on implementation of the Human Rights Committee’s views under the Optional Protocol to the ICCPR gives us cause to question its commitment to the good faith consideration and implementation of the views of UN treaty bodies.

Since Australia ratified the Optional Protocol to the ICCPR, the Human Rights Committee has issued 32 views identifying violations of the ICCPR. Of those, only two, arguably three, have received a satisfactory response from the Australian Government.

A low point was reached when, in its refusal to accept the Human Rights Committee’s determination in Young v Australia, Australia informed the Committee that “further dialogue on this matter would not be fruitful and [the Government declined] the offer to provide more information”.

More recently, the Australian Government’s lack of commitment to the implementation of views was demonstrated in its draft National Human Rights Action Plan, which commits to “review whether any Treaty Body recommendations can be accepted as consistent with the Government’s immigration detention policies”. The notion that a Government would only implement those views that are consistent with existing Government policy, whether or not that policy violates international human rights, undermines the purpose and integrity of the treaty body system.

The Human Rights Committee commented on Australia’s approach to and poor record of responding to views in its most recent Concluding Observations on Australia:

While acknowledging the measures taken by the State party to reduce the likelihood of future communications regarding issues raised in certain of its views, the Committee expresses once again its concern at the State party’s restrictive interpretation of, and failure to fulfill its obligations under the First Optional Protocol and the Covenant, and at the fact that victims have not received reparation. The Committee further recalls that, by acceding to the First Optional Protocol the State party has recognised its competence to receive and examine complaints from individuals under the State party’s jurisdiction, and that a failure to give effect to its views would call into question the State party’s commitment to the First Optional Protocol.

Ultimately, the unimplemented views of treaty bodies may have educational and symbolic value, but these outcomes are rarely going to justify the significant time, energy and resources that an individual or organisation will need to commit to an individual communication. Further, Australia’s failure to implement views gives license to other states to eschew their obligations.

If the Australian Government is seriously committed to positive engagement with UN treaty bodies, the development of a rules-based international order and the effective implementation of human rights, it must do better in its response to treaty body views. Steps in this regard could include keeping to the Committee’s time limits and establishing a mechanism to monitor and report on responses to views, such as that modelled by the UK’s Joint Parliamentary Committee on Human Rights.

Most importantly, the Government should accept the authority of the UN treaty bodies to determine human rights breaches and implement their views. Without this commitment Australia’s accession to the Optional Protocol to CEDAW, and other mechanisms such as the complaints procedure under the Disabilities Convention, should be viewed as little more than empty rhetoric.

Rachel Ball is Director of Policy and Campaigns at the Human Rights Law Centre.