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Wednesday, 11 May 1994
Page: 605

Senator KEMP (12.58 p.m.) —I rise to speak on a matter of public importance regarding a document which this government has prepared at some expense and in great haste. The document, National Action Plan, was tabled at the fiftieth session of the United Nations Commission on Human Rights in Geneva on 22 February 1994.

  It is a measure of the times and priorities of this government that the national action plan was not tabled in the Australian parliament. We should make no mistake: this national action plan is a document of some importance. It sets out in detail how the government aims to incorporate Australia's legal system further within the treaties, conventions and human rights committees of the United Nations.

  The parliament did not have a chance to debate the government's plans and to consider the numerous proposals that the government has put forward. After all, one of the basic human rights of a free people is that the government consult with them on such issues, not with United Nations public servants and the UNophiles in the Department of Foreign Affairs. After all, it is proposing substantial changes to the legal structure of this country. For example, and more specifically, surely it is a basic human right of the Australian people that they be asked whether United Nations human rights committees should be involved in Australian domestic disputes.

  Mr Acting Deputy President, I wish today to make a few general comments on this document before looking at some of the more fundamental matters which emerge. In the first place, the national action plan is one of the pre-eminent expressions of the so-called `New Internationalism' so beloved of Senator Evans and of the foreign policy which he pursues. How typical of Senator Evans that he boasts in his press release of 23 February this year that Australia is the first nation to formally state its position on human rights at the UNCHR in a comprehensive statement.

  Perhaps some of the other nations were more circumspect because they are more aware of the complexities and difficulties in this area than Senator Evans appears to be. There is no consideration in the document that signing new conventions, removing reservations on existing conventions and encouraging appeals to UN human rights committees might involve weighty national interests which could at times conflict with the overriding desire of Senator Evans to appear a good international citizen and to be patted on the back by the diplomats and permanent officers of the United Nations.

  There seems to be some impression that these UN conventions are holy writ. The ICCPR, negotiated over a period of 18 years between nations of the free world, the communist world and the Third World, says nothing of the right to private property. While it affirms the right to participate in elections, the communist parties did not want any mention of the right to have competing parties or even competing candidates, so that element was not mentioned in the specific article. Some countries even objected to the right to change one's faith, so in the article on freedom of religion this specific right is not mentioned. These documents simply are not holy writ.

  The second general comment I wish to make turns on the shallow philosophical assumptions which underpin the whole document. For example, the national action plan makes the incredibly bold statement that Australia rejects the view that there is any hierarchy of human rights. We are all in favour of human rights, but the fact of the matter is that the whole area of human rights is fraught with complexities, and for this document to glibly say there is no hierarchy of human rights is to ignore the very difficult issues involved in advancing human rights.

  This is one of the major human rights debates occurring at the international level at this very time. Professor Phillip Alston and others have drawn attention to the fact that there is a proliferation of human rights. Some include what they call the right to tourism. How could that be more important or at the same level as the right to due process under law?

  A well-known expert in the area, Mr Theodore Meron, in his recent article entitled `On a hierarchy of human rights', considers this debate at some length. He points out, and I quote:

The characterisation of certain rights as hierarchically superior may also be seen as a response to the proliferation of human rights instruments, sometimes of poor quality and uncertain legal value.

He argues, in weighing up the pros and cons, that the international community should direct its efforts to finding a distinction between ordinary and higher rights and the legal significance of this distinction, steps that would contribute significantly to resolving conflicts between rights.

  Many human rights problems today involve this very conflict: the right to freedom of expression versus the right to a fair trial; the rights of parents versus the rights of children; the rights of women versus the rights to maintain religious or cultural traditions. One of the important issues in Australia is how these rights are to be balanced and by whom. Are they to be balanced by Australian courts and judges or are they to be balanced by UN committees? If the Prime Minister (Mr Keating) and his fellow republicans wish to allow Australian human rights matters to be considered by UN committees, they should at least consider the value of establishing a hierarchy of rights to direct the decisions of these committees rather than giving them unbridled power to balance these rights in any way they choose.

  Let me give honourable senators another example. You, Mr Acting Deputy President, will be aware of this. One of the debates occurring is on the issue of national sovereignty versus the right to self-determination for indigenous peoples. The right to self-determination, which is contained in article 1 of the International Covenant on Civil and Political Rights as well as in a number of other international treaties, has applied in the past to colonies and peoples under the rule of a foreign power. However, the right to self-determination, according to one view, includes the right of people to determine their own international status by deciding whether to remain part of an existing sovereign state or by seceding from it and forming their own nation.

  The Australian government has recently argued for the inclusion of the right to self-determination for indigenous peoples in the proposed United Nations declaration on the rights of indigenous peoples. Australian representatives have submitted that the right to self-determination should be reconciled with the principle of territorial integrity of states so that it does not give rise to indigenous peoples seceding and forming their own states. That is a very important issue. As I understand it, the Australian government's interpretation of the scope of self-determination is limited to a form of self-management and participation in the political process.

  There are two serious problems arising from Australia's position. Firstly, by using the expression `self-determination' in this limited sense, it will certainly raise the expectations of those who understand self-determination in its broader sense as allowing peoples to decide their own international status. Secondly, even if Australia succeeds in achieving recognition in the declaration on the rights of indigenous people that self-determination cannot be achieved at the expense of the territorial sovereignty of states, this does not mean that such a limitation will be imported into other treaties which also include a right to self-determination.

  We have recently seen how the meaning of provisions in human rights treaties can change over time. The UN Human Rights Committee now interprets the word `sex' to include `sexual orientation', even though that was probably never considered when the covenant was first drafted. I ask: how will this limited interpretation of the meaning of self-determination be interpreted by UN committees in the future? By recognising the rights of indigenous peoples to self-determination, we may ultimately be recognising their right to secede from Australia. In setting out its national action plan, the government failed to reiterate strongly its position that self-determination could under no circumstances include the right to secession from Australia. This, in itself, I believe, may be taken as a signal of the government's negotiating position.

  The third issue I wish to address is that there is barely any recognition in the document of the many matters which involve significant constitutional issues for Australia. One of the major problems with UN treaties is that they fail to recognise adequately the nature of a federal state. It is interesting that the US, when it signed the International Convention on Civil and Political Rights, insisted on a detailed and complex federal clause. When the US decided to ratify the ICCPR with the federal clause, the Australian government had by that time removed the federal clause which had been inserted by the Fraser government and replaced it with a mere federal statement.

  In the national action plan, it points out there are some 28 ILO conventions which have been identified by the government as suitable for ratification. That will apparently be with consultation, or so it says. That, of course, would be a change—ILO conventions were ratified prior to the last election without any significant consultation. But note that the states will be only consulted; their approval is not necessary. States are part of the federal compact and, given the fact that these treaties often change the balance of power between federal and state governments, it is a gross abuse of position for the federal government to feel it can freely alter this balance.

  One of the more amazing proposals in this document is the section in which the government, in effect, indicates its desire to encourage appeals to UN human rights committees. What a disgraceful abdication of national sovereignty! There are no worries here about the philosophy of the Australia Act severing appeals to outside tribunals; and no considerations as to whether these committees themselves which, in my view, fail to meet the most minimal standards of judicial process, should be giving views on Australian disputes.

  One of the surprising aspects of the debate on UN human rights committees is that the government denies that its action in this area, together with the ratification of a vast range of UN and ILO treaties, in some way impinges on national sovereignty. I would have thought the whole idea of Senator Evans's new internationalist agenda is to erode national sovereignty. Indeed, Senator Chris Schacht, when he was chairman of the Joint Standing Committee on Foreign Affairs, Defence and Trade, produced a report in which it was stated, `There has been a tendency for the United Nations to limit national sovereignty.' Senator Schacht has no argument. The report continued:

  Therefore, this evolution increasingly demands a reconsideration of the principle of national sovereignty.

  United Nations conventions now covering a wide range of activities inevitably change the character of domestic institutions, alter domestic legislation and extend accountability beyond the usual domestic constituency.

  In the recent Lateline debate in which I took part with the Attorney-General and Justice Evatt, Don Rothwell, lecturer in law at the University of Sydney, observed that there is a perception that we are being governed by the United Nations or by various international conferences. He said:

  The fact of the matter is that every time we enter into a treaty we are, to a certain extent, giving away our sovereignty. But that is the price we pay for being a good international citizen.

So he does not argue the principle which is the driving force behind the new internationalist agenda of Senator Evans. The new internationalist agenda is to national sovereignty as a rat is to cheese.

  An article in the well-respected US current affairs monthly Commentary pointed out the very problems which are involved when countries sign up for these treaties. Inevitably there is an erosion of national sovereignty. It is very interesting, in conclusion, that Senator Evans and the Attorney-General, Michael Lavarch, now attempt to deny the driving principle underlying the government's new internationalism. This is not surprising. Having attempted to fan the nationalist flames in their republican debates, will Mr Keating, Senator Evans and Michael Lavarch be burnt as the Australian people understand how foolishly they are selling out the national sovereignty of this country?(Time expired)