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 human rights, or even on the attention paid to human rights within the federal Parliament and executive government.⁴⁴

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 parliamentary scrutiny regime may nevertheless have increased human rights knowledge within Parliament.⁵⁰ Certainly, members and past members of the pjchr must know more about the treaties given the nature of their committee work.

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 is unlikely to be high within the judiciary, given the dearth of relevant arguments before them. Such knowledge is likely increasing among the senior judges in the act and Victoria as a response to local human rights statutes with regard to ccpr.⁵⁷ Poynder stated, correctly, that most treaty citations are from a select few ‘judges with a human rights reputation’, such as (formerly) Kirby J of the High Court.⁵⁸

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 ngos are engaging with the treaty bodies, particularly the reporting process.⁶⁴ Knowledge seems higher in some sectors, such as disability (according to Simon Rice) than others.⁶⁵ However, according to Ben Schokman, a human rights consultant formerly with the Human Rights Law Centre, most ngos have a ‘low level of literacy in terms of human rights understanding’.⁶⁶ Furthermore, many ngos consciously avoid human rights language in their advocacy campaigns in favour of the language of social justice, perhaps because explicit human rights arguments are not perceived as likely to be effective.⁶⁷

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

In contrast, Nick Poynder believes that the Australian public ‘has been conditioned by governments to be suspicious of human rights, and to see [them] as a negative’.⁷² Rachel Ball, at Oxfam at the time of the interview, believes that the public thinks of human rights as a ‘left wing’,⁷³ which generates doubts over their legitimacy. Olivia Ball of Remedy Australia felt that Australians were complacent regarding protection of their rights, and thus did not appreciate the importance of international human rights law.⁷⁴ In contrast, she felt that ‘oppressed minorities’ were more aware of human rights violations.⁷⁵ A senior government official who works on human rights implementation felt that ‘most people … probably never really think about human rights’, and that human rights language did not resonate.⁷⁶ A former senior agd officer added that the public was not likely to accept the authority of the UN in Geneva: In an echo of former Prime Minister Abbott, they ‘don’t like being told what to do’.⁷⁷

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 human rights academics. Academic outputs from Australia regarding the core UN human rights treaties are too numerous to list.⁸²

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

Typically, the reporting process involves consultations with relevant Commonwealth government departments and agencies, as well as each state and territory government. There now is a standing mechanism for regular meetings among relevant department officials, along with the ahrc, which has improved coordination across departments’ inputting into reports.⁸⁹

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, and endorsements from dozens more, which cover the breadth of the treaty or at least the lists of issues.⁹⁵ The coalition reports generally are more thorough and engaging than the official state report. Individual ngos also submit reports on bespoke issues.

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 have an ‘immediate impact’.¹⁰⁰ Simon Rice did not believe that cos were very useful.¹⁰¹

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

Nick Poynder stated that interim measures are very ‘useful to prevent immediate deportation’, and had probably saved lives.¹⁰⁸ A senior dfat officer agreed that interim orders had an impact, as they triggered a final review of a relevant decision (most often a prospective deportation), even if they are not always complied with.¹⁰⁹

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 in the complaints process for victims, despite the low level of implementation. In particular, there was value in the ‘vindication’ received at the international level, especially for those who had lost multiple times while exhausting domestic remedies at home: ‘The UN said I was right.’¹¹⁶ Other benefits (for some) included ‘respect among their peers’, ‘a positive public profile’, and ‘a sense of achievement and [greater] self-confidence’.¹¹⁷ Phil Lynch agreed that views could provide ‘a victim with a platform and the sense of legitimation and vindication which can be gained from reporting your story on an international stage’.¹¹⁸

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 Other Measures

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 issues’.¹³¹ This comment seems to refer to the fact that the government’s priorities are far broader than those of the treaty bodies, and that the treaty bodies are perhaps naïve in their continuing failure to acknowledge those other priorities.

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

5.1.1 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 by the previous government.¹⁴² A prominent policy development was the federal government’s suspension of the rda in the context of what is known as the Northern Territory Emergency Response (‘nter’). The nter (colloquially known as The Intervention) was a series of coercive administrative measures initiated by the government in 2007 to address reports of widespread child abuse and related social dysfunction in Indigenous communities in Australia’s Northern Territory. The measures, which included the compulsory acquisition of land, the cancellation of a major indigenous employment scheme, compulsorily managed welfare payments and mandatory health checks, were controversially deemed ‘special measures’ by the government for the purposes of anti-discrimination law. The rda protections were restored in 2010, but the Emergency Response itself has been extended to 2022.¹⁴³

5.1.3 Use by Courts

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

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 be subjected to such a decision.¹⁵⁶ Australia did not resile from its rollback of native title rights despite the cerd Cttee’s concerns.

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 Brief Conclusion

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.

5.2.1 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 cerd. Australia has also made a declaration that it is a federal constitutional system and, as such, ‘the implementation of the iccpr will be effected by the Commonwealth, State and Territory authorities having regard to their respective constitutional powers and arrangements concerning their exercise’. This reflects the federal government’s ongoing political commitment to the federal split in powers, mentioned above.

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 exclusion, such as its nature as a collective rather than an individual right, as well as controversy over its scope.¹⁶⁹

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

As discussed below in part 5.5, Australia ratified op-cat on 21 December 2017. Its implementation of that treaty will assist in monitoring the implementation of articles 7, 9, 10 and 14 of ccpr.¹⁷⁶

5.2.3 Use by Courts

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 is consistent with international law, that construction should prevail over one that is not’.¹⁸¹

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 Committee therefore ranked Australia’s response on counter-terrorism legislation and practices as C1 (‘not implemented’); its response on indigenous peoples as B1 (‘substantive action taken, but additional information required’); and its response on violence against women as B1. The Committee requested that Australia provide information on action taken to address these three issues in its response to the List of Issues for Australia’s 2017 review.¹⁸⁶

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 time of the relevant crime;¹⁹² the prohibition of torture and cruel, inhuman or degrading treatment or punishment;¹⁹³ discrimination on the basis of sexuality;¹⁹⁴ the deportation of long-term resident aliens;¹⁹⁵ the best interests of the child;¹⁹⁶ and denial of the right to family life.¹⁹⁷

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 faced trial.²⁰¹ A senior dfat officer noted the merit in this case highlighting ‘a flaw in the system’ which was accordingly remedied.²⁰²

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 the effect that Australia refrain from deporting a person prior to finalisation of their communication. Some have concerned a request to provide medical treatment.²⁰⁸ Australia has on occasion requested that the measures be lifted, successfully²⁰⁹ and unsuccessfully.²¹⁰

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.

5.3.1 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 to domestic laws and policies’.²¹¹ Australia lodged no reservations or declarations to cescr.

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 cultural rights, including education, health care, social security and welfare, housing, recreation and culture. From 2008, when the government announced stimulus spending in response to the Global Financial Crisis, the government spent more overall than in the previous decade, and devoted a larger proportion of the budget each year to those areas, until 2013.²¹⁶

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 State Reporting and Its Impact

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 also seems wedded to outmoded doubts over the justiciability of economic, social and cultural rights, which is delaying serious consideration of ratification of op-cescr. On a more positive note, cescr jurisprudence can be expected to be utilised in making decisions under the economic and social rights provisions of the act and Queensland human rights charters.

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 discrimination on the basis of sexual orientation, gender identity and intersex status were incorporated.²³⁰

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 Office for (the Status of) Women, variously located in different departments over the years, is responsible for reporting under cedaw. Professor Simon Rice has suggested that cedaw ‘goes missing’, as its reports are prepared by an office which shuffles across departments, rather than by a central government department.²³⁶ However, it is arguable that cedaw reports have in some respects been superior to other reports. The 2004 and 2009 cedaw reports seem more comprehensive and frank than reports prepared by dfat or agd. For example, the 2004 report transparently acknowledged ‘areas where progress has been slower and new challenges have emerged’.²³⁷ In contrast, the 2016 report is terse and factual.

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 Individual Communications

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.

5.5.1 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 approval is required to prosecute perpetrators for offences that occur outside Australia.²⁴⁴

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 of the npm has been undertaken by the ahrc since 2017, with a final report due in 2019.²⁵¹ Accordingly, Australia declared, in accordance with article 24 of op-cat, that it would postpone its obligation to establish the npm for three years.

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 153 asylum seekers and to return them to Sri Lankan authorities was lawful under Australian law, refoulement concerns notwithstanding.²⁵⁷

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.

Australia produced its first follow-up report for the cat Cttee in 2009,²⁶⁴ and another in 2015.²⁶⁵ Both were relatively detailed, although it does not seem that many policies, apart from those discussed directly above, have changed in light of the latter follow-up.

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 attention of the relevant authorities in sufficient time to prevent the complainant’s scheduled departure on 25 June 2014’.²⁶⁹ The cat Cttee accordingly found that Australia had breached its obligations under article 22 of cat, under which it is required to cooperate in good faith with the Committee in relation to individual communications.²⁷⁰

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.

5.6.1 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

Australia has not ratified the op to crc on a communications procedure (op-crc-cp), despite the urgings of civil society during a public consultation period in 2012.²⁷³ That consultation took place late in the term of the Rudd-Gillard alp government (2007–2013). It seems likely that Australia’s contemporaneous asylum and border policies, under which many children were being detained onshore and offshore, may have discouraged ratification at that time. As noted, conservative governments, which were in power from 2013 to 2022, have never initiated the authorisation of or consented to any of the communications procedures.

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.

crc became a ‘declared instrument’ under section 47 of the Australian Human Rights Commission Act 1986 (Cth) on 22 October 1992, with the result that the ahrc is able to hear complaints with regard to alleged abuses under the treaty.

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

In 2017 the government requested that the ncc lead the development of the National Principles for Child Safe Organisations. These principles are based on the ten child-safe standards that were recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse.²⁸¹ crc underpinned the development of the child-safe standards as the Royal Commission’s position was that ‘by fulfilling children’s rights, we believe institutions will create a positive, child safe environment that better protects children from harm’.²⁸² The principles are ‘grounded in a child rights approach, which recognises children and young people as active participants’,²⁸³ and each of the principles includes an explicit reference to the relevant article of crc. The scope of the National Principles extends beyond sexual abuse to other forms of harm.²⁸⁴ All members of the Council of Australian governments, which includes the Prime Minister and state and territory First Ministers, have endorsed the National Principles.

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 crc.²⁸⁷ However, the Court emphasised that it was applying the Family Law Act rather than crc itself.²⁸⁸

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

In 2014 the ncc, together with unicef Australia and Plan International Australia, developed a child-friendly version of the 2012 cos. There are two versions of the publication: one for younger children and one for older children and young people.²⁹³

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.

5.7.1 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 representative organisations have called for stronger engagement with persons with disabilities and their representative organisations in the implementation of the ndis.³⁰⁸ Concerns have also been raised that some groups of persons with disabilities, such as indigenous people and people from culturally and linguistically diverse backgrounds, may not have equal access to the ndis.³⁰⁹

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 Federal Court of Australia has relied on crpd by virtue of section 3 of the ndis Act in relation to appeals from the aat on the ndis.³¹⁴ That Court has also relied on the definition of ‘reasonable accommodation’ in article 2 of crpd to determine the meaning of ‘reasonable adjustments’ in section 5(2)(a) of the dda, as ‘adjustment’ is not defined in the Act.³¹⁵

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 of nationally consistent measures for data collection and public reporting of disaggregated data across the full range of obligations under crpd.

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 were found unfit to plead to criminal charges.³²⁵ The final case concerned the right to vote by secret ballot.³²⁶

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 a short period of time. The number of cases probably reflects a reasonably high awareness of cRpd among ngos focused on disability rights.