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Pritchard, Sarah; Zdenkowski, George --- "New Australian Government and Human Rights" [1996] HRightsDef 1; (1996) Human Rights Defender

New Australian Government and Human Rights

Sarah Pritchard and George Zdenkowski*

In addition, the Law and Justice Policy announces the intention of the Liberal and National Government to: establish a Human Rights Division of the Federal Court to determine disputes that HREOC is unable to conciliate or mediate; fund a $10 million two year public awareness and education campaign aimed at encouraging tolerance and fairness and changing racist attitudes; retain the Racial Hatred Act and seek bi-partisan support for any future changes to the legislation.

The Human Rights Defender welcomes the new Governments commitment to the provisions of the major international human rights instruments and the three policy proposals referred to above. There is, however, some ambiguity in the Coalitions policy about the role of international human rights superv-isory procedures.

The assertion that when Australias laws are to be changed, Australians and the Australian political process should be at the beginning of the process, not at the end is somewhat misleading if it is intended to suggest that through ratification of international human rights treaties, Australia has somehow ceded its sovereignty to international bodies. An international instrument to which Australia is party is only enforceable domestically where an Australian legislature has chosen to enact a law reflecting its terms. In the absence of legislation, treaties do not create any rights in domestic law.

Moreover, a fundamental condition of admissibility of all UN human rights treaty bodies is that of exhaustion of domestic remedies. This means that UN human rights committees will not consider a complaint until all available national appeal procedures have been pursued. International procedures are therefore available only as a last resort, where domestic mechanisms have failed to provide a remedy consistent with international human rights standards. It is also noteworthy that decisions of international bodies are advisory only; that is non-binding and unenforceable. The human rights community will be interested to hear the Governments views as to the deficiencies in the procedures of the human rights committees, revealed by Australias acceptance of international complaints procedures.

Ratification of international instr-uments does require a State to perform its obligations in good faith. However, this is surely an exercise and not a relinquishment of sovereignty. Ratification by Australia of international treaties is recognition of the considerable benefits which accrue to Australias national and international interests from membership in treaty regimes. Australia has much to gain through full and constructive participation in the intern-ational community and, in the area of human rights, being seen as an exemplary international citizen.

It is to be hoped that any ambiguity is a matter of expression rather than substance, and clarification by the new Government will be eagerly awaited.

George Zdenkowski is an Associate Professor of Law at the University of New South Wales. For Sarah Pritchard see p.14.

Coalitions Human Rights Policy

It is our fundamental belief that Government must safeguard and advance the freedom of the individual. Those fundamental rights include ind-ividual liberty and the right of freedom of speech, religion, association, assembly, and non-violent dissent.

We support the fundamental freedoms contained in the worlds premier human rights conventions such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

We support the United Nations as a vehicle for the advancement of human rights. The recourse to Committees in human rights matters has exposed def-iciencies in United Nations Committee procedures. In Government we will work through the United Nations as a matter of priority to remedy those def-iciencies.

Australian laws, whether relating to human rights or other areas, should first and foremost be made by Australians, for Australians. International bodies and international commitments are an important part of Australias relationship with the rest of the world. However, when Australias laws are to be changed, Australians and the Australian political process should be at the beginning of the process, not at the end.

We must be prepared to act on our international commitments. Our initiatives to reform the treaty-making process will help ensure proper domestic procedures are in place before international oblig-ations are agreed to.

The States and Territories will be int-egrally involved in Commonwealth consideration of human rights commitments and obligations. Through a truly cooperative approach to federalism, the States and Territories will be consulted and their views recognised.

All these measures will ensure that Australians play the pivotal role in determining Australias human rights commitments. Equally importantly, these measures will mean that the commitments that Australia makes in human rights matters are truly reflected in both our laws and practices.