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KERRY O'BRIEN: When the UN Committee on Human Rights recently ruled against Tasmania's anti-gay laws, it caused political uproar in Australia. Critics said our sovereignty had been lost and States' rights denied.

UNIDENTIFIED: If the Federal Government wants to move in and to change our laws, then I believe there is going to be one big barney.

KERRY O'BRIEN: The same cry was heard when Canberra stopped the building of the Franklin Dam because of another international treaty. Since Australia is bound by thousands of international treaties, just what are our commitments and are we losing fundamental control of our sovereignty? 'Conventional wisdoms' - that's our story tonight.

In a few weeks, Australia must explain to the United Nations what it intends to do about Tasmania's laws against homosexuality. The response is required because the United Nations Human Rights Committee found that Tasmania's laws were in breach of the UN convention or covenant on civil and political rights, which has been ratified by Australia.

That decision was controversial enough, but more is to come. The Committee is considering four other human rights complaints from Australia concerning the detention of refugees and aspects of our family and criminal law. The work of this and other UN committees highlights the potential impact of international treaties on decision-making in Australia.

Critics argue that we're sacrificing our independence to various international bodies, and the Commonwealth is using international treaties to centralise power in Canberra, overriding States' rights.

In a moment we'll be joined by prominent Australian judge and head of the UN Human Rights Committee, Justice Elizabeth Evatt; Liberal Senator, Rod Kemp, a trenchant critic of the Government and the Committee's power; and the Federal Attorney-General, Michael Lavarch. But first, Michael Heath looks at the extent of our UN obligations.

UNIDENTIFIED: Governments got in the way of the dreams of the people.

MICHAEL HEATH: More and more, the nations of the world look for common rules to deal with international concerns. Many issues like business and the environment cross the boundaries of sovereign states. And ever since its birth, the United Nations has sponsored treaties and conventions in search of its twin goals of maintaining peace and fostering international co-operation. There is even a treaty dealing with the law of treaties.

DON ROTHWELL: The scope of the international treaties has expanded considerably from dealing with very simple issues concerning inter-state relations to very complex issues of discrimination, human rights, environmental regulation; plus, in addition to that, the Commonwealth has been much more prepared to rely upon those treaties to legislate domestically.

MICHAEL HEATH: If you want some idea of just how many international agreements Australia is a party to, here they are - some 2,000 international treaties and rising every year. They cover virtually every topic imaginable. Each time you go to use the telephone to make an international call, for example, or fly in an aeroplane, an international treaty comes into play. For the most part, they're not controversial, but they've become a powerful weapon in the hands of the Federal Government, and the reason is this: our constitution gives the Commonwealth certain defined powers to legislate on specific topics. But by using what is called the 'external affairs power' to sign treaties, the Commonwealth can legislate on virtually any topic it likes, even if it overrides the States.

And more than a decade ago, the greenies proved that power. They forced the Federal Government into blocking the building of a dam on the Franklin River in Tasmania, by passing its own laws overriding Tasmanian law. It did so by relying on an international treaty called the 'Convention for the Protection of World Cultural and Natural Heritage' , and the High Court agreed it had the power.

DON ROTHWELL: In many respects, the High Court has opened the flood gates, in some respects, in the sense that previous limitations that the High Court thought may have existed in the power were really swept aside by the Tasmanian dam's case.

MICHAEL HEATH: Are there any limits on the topics that the Commonwealth Government can legislate on, in respect of international treaties?

DON ROTHWELL: No, there's virtually no limitation at all as to the topics that the Commonwealth can enter into. The only limitation that the High Court has suggested, is that the treaty must be a bona fide treaty. So, for instance, I sometimes use the term that the Commonwealth couldn't go out treaty shopping. So if it decided it wanted to legislate on a certain subject matter, it couldn't ask New Zealand, for instance, 'Would you like to enter into a treaty on this particular topic?', and then legislate on the basis of that treaty. The High Court has certainly said that that type of treaty implementation would be struck down as invalid.

MICHAEL HEATH: And the Government has used the power extensively. Like Tasmania, it's protected rainforests in Queensland; it's also relied on the external affairs power to prosecute alleged war criminals. And most recently, it's relied on international labour conventions to pass industrial laws, which guarantee minimum award wages, equal pay for equal work, and protection against unfair dismissal.

There are many ways to implement an international agreement, but a common example works like this: Australia might enter into a treaty with one or more other countries to protect wilderness. It then enacts federal legislation implementing the purpose of the treaty, and then nominates the wilderness area to be protected.

It's an irony that just like the dams case, the latest controversy about our treaty obligations should come from Tasmania.

NICK TOONEN: I like being Tasmanian and I like living here, and I don't like the fact that these laws single me out because I'm gay.

MICHAEL HEATH: Nick Toonen is a gay activist. Because Tasmanian laws effectively banned homosexual sex, he took his case to the United Nations Human Rights Committee. The Committee is the international watchdog of human rights. Toonen successfully argued to the Committee that Tasmanian laws were in breach of an international agreement on civil and political rights. The decision met a blunt response from the Tasmanian Government.

RON CORNISH: We won't be repealing sections 122 and 123 of the criminal code.

MICHAEL HEATH: That reaction means the Federal Government must now respond. If it doesn't, it faces the risk of being embarrassed internationally. But we're a federal country, and while the Commonwealth could override Tasmania's laws, the debate is whether such action means that our federal system will eventually just be watered down completely.

DON ROTHWELL: There is the potential for the Commonwealth continually to expand its powers with the result that State powers are going to become more and more limited.

TONY BLACKSHIELD: There isn't any question of power being taken away from the States. Part of the trouble is that federal balance is a difficult concept and it's not even clear that it means anything. It tends to be linked with the concept of States' rights, but this is a constitution that doesn't give any States' rights. The States are units of the federation. They have their continuing areas of constitutional law-making power, but they're within a federal framework.

MICHAEL HEATH: The development of the United Nations and other international grouping like the European Community has meant a rethink about exactly what it means to be a nation. Compliance with treaties means pressure to bring domestic laws in line with the international obligations they impose.

DON ROTHWELL: There's a perception that we're being governed by the United Nations or by various international conferences, but the fact of the matter is, is that every time we enter into a treaty, we are to a certain extent giving away our sovereignty. But that's the price we pay for being a good international citizen.

MICHAEL HEATH: As we move into the next century, just how our federal system will change and what influence bodies like the UN will have on Australia remain to be seen.

KERRY O'BRIEN: That report from Michael Heath, and now let me introduce our guests. Justice Elizabeth Evatt is a member of the United Nations Human Rights Committee - the body responsible for the recent decision on Tasmania's laws forbidding sodomy. Over the past eight years, Justice Evatt has sat on the UN committee for the elimination of discrimination against women; she's a former chief judge of the Family Court; and former head of the Law Reform Commission.

Federal Attorney-General, Michael Lavarch, joins us from his Parliament House office. He'll soon have to decide on how to respond to the UN committee's judgment and whether or not to use the external affairs power to override Tasmania.

Also in Canberra, Liberal Senator, Rod Kemp, who is a strong critic of the encroaching power of international treaties on Australia, and believes Australian human rights issues should be decided exclusively within our borders.

Rod Kemp, what is your fundamental problem about Australia signing these covenants? How demonstrably does it rob us of sovereignty?

ROD KEMP: Well, it's very clear in relation to the UN Human Rights Committee that a view given by this committee has constitutional significance in this country; in other words, it will in effect provide a head of power for the Commonwealth to legislate.

Now, Australians were never asked, Kerry, whether they wanted to have UN Human Rights Committees involved in domestic disputes, and particularly whether such committees should be making rulings, or views as they're called, which do have some constitutional effect in this country.

KERRY O'BRIEN: But this covenant was originally ratified by Australia in 1980, and this particular protocol that has allowed this appeal to the Human Rights Committee of the UN was signed in .. or ratified in 1991.

ROD KEMP: That's right.

KERRY O'BRIEN: Now there's been at least one election since then, one federal election, why haven't you made it an issue?

ROD KEMP: Well, I don't think this has ever been a political issue, and I think, in fact, most Australians wouldn't have known that the Government had, in effect, overturned the philosophy of the Australia Act and allowed Australians to take domestic disputes to the UN. I think it's a very serious issue and it's about time we did have a political debate on it.

KERRY O'BRIEN: Okay. But is Australia legally bound to enforce a committee's findings, or just morally bound? And if we're only morally bound, how does that threaten sovereignty?

ROD KEMP: Well, can I say that under international law, Australia is bound to observe the obligations under the treaties it makes. And so that if we go out and sign these treaties willy-nilly, we are building up potential obligations that we may be sort of called upon to fulfil. Now there are many ways this can be done. I think your commentator earlier on mentioned there is pressure from the international sphere of the embarrassment if we don't fulfil our obligations. But the Government is signing up Australia in a way which I think is doing constitutional damage to this country.

KERRY O'BRIEN: Elizabeth Evatt, you're an Australian citizen and an Australian judge. How did you feel sitting around an international table with delegates from other countries making a judgment against Australia?

ELIZABETH EVATT: Could I make it clear that the members of the Human Rights Committee are not delegates of governments. They are, of course, elected by the States that have ratified the covenant, and there are now over 120 States that have ratified the covenant. And once elected, they serve in their individual personal capacity. They can't be directed by governments. They act according to conscience.

To answer your question more directly, the members are eminent jurists from all around the world. They're academics, professors, judges, and I have the greatest respect for their independence. I find it exciting and stimulating to work with them.

KERRY O'BRIEN: Do you have any sense at all that participating .. that that decision made by a United Nations committee on Australian law is to any degree encroaching on Australia's sovereignty?

ELIZABETH EVATT: Well, I'd like to point out that the committee's decision does not affect Australian law. The committee's concern is only whether Australia has complied with its obligations under the covenant. That's a question of international law and international obligations which were undertaken by Australia.

Now, the way in which Australia complies internally is not a question for the committee. It doesn't interpret Australian law or deal in any appellate sense with decisions of Australian courts. Its question is only this: is what has happened in Australia in compliance with or in breach of the international obligation?

The way in which those obligations are enforced or applied in Australia is a matter entirely for Australian law of which the High Court is the final arbiter, not the committee.

KERRY O'BRIEN: But what about the possibility of it ending up in the international court?

ELIZABETH EVATT: It can't end up in the international court. I don't think there's jurisdiction there to deal with this. Ideally, there would be an international court of human rights which could make legally binding decisions which the committee cannot. The committee simply expresses an opinion with a recommendation, and that opinion is the opinion of the committee whether a particular State has or has not complied with the obligations under the covenant, which are now binding on more than 120 States, including more than 70 which have accepted the right of individual complaint.

KERRY O'BRIEN: Rod Kemp, so if the Federal Government wanted to enforce this particular UN finding, the matter would have to be debated in the Parliament, because, presumably, if Michael Lavarch decides to act against the Tasmanian Government in this, if they don't change their own laws themselves, he has to introduce legislation. That legislation would be debated and voted on in the Parliament, and could then be challenged in the High Court. So, again, how does it come back to an assault on our sovereignty?

ROD KEMP: Well, I'll tell you why because when Mr Lavarch goes off to the High Court, if there is a challenge to that legislation, the first thing that Michael will trot out, I will bet, will be this particular view of the UN Human Rights Committee which effectively says that Australia is in breach of its international treaty obligations. And that's why I keep on saying is that Justice Evatt and Michael Lavarch can't duck the issue that we have an outside body making rulings which have constitutional significance for this country.

KERRY O'BRIEN: But that significance is determined by the Federal Parliament and, ultimately, the High Court.

ROD KEMP: Well, whether Australia is in breach of an international treaty or not, there is a view given by the UN Human Rights Committee. Whether Mr Lavarch can pass an Act overriding a State law, could be challenged, and that challenge will rely very heavily on the view of this committee, and I think that's a very important development in Australian constitutional law. My problem is with what Justice Evatt said is this that Australians were never asked whether they wanted to have such a body making these rulings, nor do they know the people on those bodies, and I have to say to Justice Evatt, with respect, that there is a lot of experts have pointed to the fact that at least some members of these UN human rights committees do not act in an independent fashion of their governments.

KERRY O'BRIEN: Justice Evatt.

ELIZABETH EVATT: Well, my experience of the Human Rights Committee is that every member on that committee is concerned with one question and one question only; that is the defence of the rights of the individual person in the States who've undertaken their obligations. That's their concern. And my experience is that is their only concern and that they act according to their conscience as they are required to do under the covenant. I'm talking of the Human Rights Committee when I say that.

ROD KEMP: Kerry, I can supply Justice Evatt with a heap of quotes from eminent people who have dealt with this topic, which have pointed to the fact that there are problems in this particular area. And I think that particular issue can't be ducked. I think that people that think that it is appropriate for outside bodies to involve themselves in Australian domestic disputes have got to make sure that those outside bodies meet Australian standards of judicial independence and process, and these committees manifestly do not. Now, can I just quote one example....

ELIZABETH EVATT: Look this is pretty insulting stuff here . It's pretty insulting....

ROD KEMP: It's not insulting stuff, Justice Evatt.

ELIZABETH EVATT: a group of eminent lawyers who act independently according to conscience, and who follow precisely the procedures set down in the covenant - a covenant drafted by State governments and adopted by the United Nations General Assembly - stick to the letter of that, and receive submissions from parties in writing, because that's what's provided in the covenant. The covenant doesn't allow of a hearing. As I said before, it would be a good thing if we had a court to deal with human rights internationally, with a hearing and submissions, but we don't have that. We have a procedure which States determined on and set out in the covenant as what they wanted. Those States choose the members of the committee who then act independently.

KERRY O'BRIEN: But just to clarify this point, are you saying that there is no circumstance in which an individual member could abuse the position that they're in, either, say, under pressure from a particular government, from their government?

ELIZABETH EVATT: Who can say? That sort of thing might be possible, but I haven't seen that in my experience. But look at what we're talking about here. The sort of decisions that are being made are these: has a State breached its obligations to protect the rights of individuals in its own country? Now, a particular member might take the view that the State has breached its obligations or that it has not breached its obligations. I can't see what Senator Kemp is worrying about here. In this case, the unanimous view was that the State, Australia, was in breach of its obligations.

ROD KEMP: Well, can I say that what I am worried about is simply is this is only the first of a deluge of cases which will go to the three UN Human Rights Committees which this Government, the Hawke and Keating Government, have allowed complaints to go to. Now in some of these committees, they are overwhelming composed of the nominees of countries that themselves do not practise democracy as we know it. In one of the committees that the Keating Government has opened up complaints to, they have people that are nominated by the Cuban Government, the Romanian Government, the Chinese Government. Now these countries in themselves do not practise human rights or democracy as we know it, and I think Australians would find it very offensive, very offensive, that the nominees of these governments will in the future be making rulings on human rights disputes in Australia.

KERRY O'BRIEN: Okay. Let me bring Michael Lavarch in at this point. Michael Lavarch, what do you say to that specific issue? - and then I would like to move on to other issues.

MICHAEL LAVARCH: Well, the last issue which Senator Kemp raised was that because a country may have a poor human rights record, it there follows that the individual on the committee also must have nothing to say on human rights; that is, if Nelson Mandela was speaking five years ago, he was to be given no credibility because South Africa had an entirely inappropriate human rights record. I mean, that's a nonsense view. The fact is that these people are nominated, but then are elected - not by individual countries, but by the whole body of countries which are signatories to the covenant. And if someone isn't of outstanding quality, like Justice Elizabeth Evatt, they simply won't get onto the committee.

KERRY O'BRIEN: Okay. I'd like to dispense with this, but I give Rod Kemp one more response on it, and in the process, Rod Kemp, you might tell me whether the United States is wrong to have signed this, whether the United Kingdom is wrong to have signed it, Canada, New Zealand and other countries of that ilk?

ROD KEMP: Well, can I say to you that the US hasn't signed the first optional protocol which allow appeals to go to this committee. Neither, might I say, has the UK.


ROD KEMP: Canada has and New Zealand has, but their procedures, of course, are a matter for them, but it's quite interesting that the US - a federation - which has been very active in the human rights area and which recently was advised by Mr Keating to go quietly on human rights in China, hasn't signed this particular protocol which allows disputes from their country to go to the UN committee.

KERRY O'BRIEN: Okay. We've spent enough time on that particular issue. Michael Lavarch, Elizabeth Evatt, I think, has said that she would prefer that these matters were determined inside Australia, which I think would mean effectively a Bill of Rights, would it not?

MICHAEL LAVARCH: Well, I mean, Australia has not gone down a Bill of Rights path. I mean, on a number of occasions the Parliament, the Federal Parliament, has debated a Bill of Rights. It's never been passed and it's been withdrawn. Rather, we've gone down a path of enacting specific pieces of legislation designed at areas where there's perceived to be particular problems, practices in Australian law, such as the Sex Discrimination Act, the Racial Discrimination Act, Disability Discrimination Act, and so on.

KERRY O'BRIEN: You don't believe that this is a poor substitute for a Bill of Rights, because a Bill of Rights is politically too sticky for you?

MICHAEL LAVARCH: No, I mean, we have specific legislation where these areas are deemed to be necessary to improve standards to overcome discrimination in our community. The action in signing the first protocol to allow a complaint to be made to the UN Human Rights Committee was not an action of giving away sovereignty or giving away power or independence or anything like it. It was an action of a country which is confident in its human rights record, which believes its laws and its freedoms will withstand international scrutiny, and are willing to give their citizens the right to test that.

Now, we believe that our laws are in very good state, but we're open to challenge. Now on this particular occasion....

KERRY O'BRIEN: Well, you're open to challenge in a number of instances, but let's deal with this one. I mean, it seems pretty clear that Tasmania is not going to budge on this, and you've got a clear obligation in that instance, have you not, to enact your own legislation to override them?

MICHAEL LAVARCH: Well, I'll be meeting with the Tasmanian Attorney-General, and I think the Premier also, on 19 May, and I'll obviously be speaking to them. And look it is my preference and I think the preference of Senator Kemp and Dr Hewson and everyone I've heard make comment about it, that the Tasmanian laws are repugnant. No one is disputing whatsoever the basic thrust of the decision; that is, that these laws....

KERRY O'BRIEN: Well, the Tasmanians are.

MICHAEL LAVARCH: Well, apart from the Tasmanian Government, and it must be noted that on three previous occasions the previous government attempted to get the provisions repealed but couldn't get it through the Upper House. But....


MICHAEL LAVARCH: If you can just let me finish, Kerry. So, I'll be speaking to them and certainly trying to put the line to them that our international obligations, our human rights obligations are collective responsibilities of all Australian Governments, not just the Commonwealth, but also the States - and that they should take action to bring their lines into law with these obligations.

KERRY O'BRIEN: But do you agree that if they don't, that you will make a mockery of your signature to that covenant if you do not then enact legislation to bring them into line?

MICHAEL LAVARCH: Well, firstly, we'll talk to them; we'll listen to what they've got to say; and hopefully they'll listen to what we've got to say. Now if....

KERRY O'BRIEN: If they don't?

MICHAEL LAVARCH: Now if they don't come to ... then obviously Australia does take its international obligations very seriously, and we may well have to take action to enforce those obligations.

KERRY O'BRIEN: And what if the UN Human Rights Committee then finds against Australia on the refugees case that's going to them, which is federal law?

MICHAEL LAVARCH: Well, at the end of the day, all of these decisions are advisory decisions and it's up to Australian governments and Australian parliaments to make a decision about Australian law.

KERRY O'BRIEN: But you can't pick and choose, surely.

MICHAEL LAVARCH: No, we can't pick and choose and we'll act consistently, obviously. But, I mean, getting back to this first point that somehow we're eroding our sovereignty or our independence is an absolute nonsense. These things aren't entered in secret. I mean, there is a full consultation process taken with the States. I mean, with both the covenant and the first protocol, there was an extensive range of consultation with State governments. And to say that it's a secretive action by the Commonwealth Government is absolute nonsense.

KERRY O'BRIEN: You mean .. well, let me .. well, Rod Kemp is shaking his head vigorously on that. You dispute that?

ROD KEMP: Of course, that what Michael is saying is not correct. Just before the last election, the Keating Government signed and ratified a host of these conventions, some of which are enormously important, some of which didn't involve any consultation with the States at all, and, Michael, I speak particularly of the ILO conventions you signed. So, the Government can't have it both ways, it seems to me, that if the Government wants to change the laws in this country, what a democracy does, it actually asks the people whether they want to change the laws, then it puts it through the people's parliament, and then those laws are judged and enforced by judges that are appointed sort of properly through our own processes.


ROD KEMP: And what I'm saying to Michael Lavarch, if you want to change the law of the country, put it through the Parliament or change the Constitution, but don't run off to a UN Human Rights Committee, and then attempt to acquire a head of power so that you can then change the constitutional balance of this country. And that's exactly what you're doing, Michael Lavarch.

MICHAEL LAVARCH: That is absolute rot. I mean, the fact is that no law of Australia can be changed other than by a decision of an Australian court or by an action of an Australian parliament. Now to try to mislead people in saying that the UN Human Rights Committee can change Australian law is absolute nonsense, and Senator Kemp knows that. There can be no change of Australian law unless there is an action of an Australian parliament. Now admit that fundamental point.

ROD KEMP: Michael, admit this fundamental point, Michael, that the view of this committee has constitutional significance in this country.


ROD KEMP: Admit that point!

KERRY O'BRIEN: But you draw the distinction between significance and power.

ROD KEMP: But that's a vital power.

KERRY O'BRIEN: Significance and power.

ROD KEMP: No, that's a power. That's a vital power and it can't be denied.

KERRY O'BRIEN: Elizabeth Evatt, do you believe that the external affairs power, when it was written into the Constitution in the first place by the founding fathers was actually intended to be used in this way?

ELIZABETH EVATT: It was intended to give the Commonwealth sole and exclusive power to enter into conventions binding on Australia. At that time, the type of conventions were probably rather few and rather narrow. It is the range of conventions that's expanded over time, not the intention. The intention hasn't changed. But I just wanted to make one other point, and that is simply this that the obligations which Australia has accepted in the international law scene are no different today than what they were in 1980 when this convention were ratified. The obligation is the same. The committee hasn't expanded it in any way. It's simply given an opinion on a particular factual situation. It hasn't increased the obligations. They were undertaken in 1980 and they still persist.

ROD KEMP: Justice Evatt, what has happened is that this government has given Australians another plain of law in which to take their disputes to. The Government took an important decision and I think that we're seeing with Michael Lavarch trying to back away from us. It is a very significant decision when a government decides that its citizens can have its disputes judged in foreign courts and bodies and tribunals. It's a very important decision.

ELIZABETH EVATT: Well, it's not a foreign court. It's an international committee set up under a convention to which Australia is a contributing party. It's not really in a sense you say a foreign body. We are part of it. We contribute to it. We elect the members to it. And our obligations are .. have been these since 1980. The real problem is that there is no court in Australia that's been given power to say whether what's done here is in compliance with those obligations. That's where the trouble is.

ROD KEMP: Well, can I say....

KERRY O'BRIEN: Very brief response from Rod Kemp.

ROD KEMP: This is precisely the point that if the Government wants to change the law in this country, if it wants to change the constitutional balance, do it the way democracies do it and pass the appropriate laws, but don't run off to UN bodies and get them to involve themselves in Australian disputes.

KERRY O'BRIEN: Okay. Very brief response, Michael Lavarch - very brief response.

MICHAEL LAVARCH: Okay. The bottom line is what are we talking about? - we're talking about a law here which has police looking into people's bedrooms as to what sort of sex they have. Well, I haven't seen any significant leader in Australia, outside of Tasmania, that agree with that law....

KERRY O'BRIEN: Yes, but we know it's going to apply to other laws as well, potentially.

MICHAEL LAVARCH: But let's not lose sight of what the issue is. It has talked about protecting rights, fundamental human rights. There can be no change to Australian law unless there is an action of an Australian parliament. There is no loss of sovereignty. It is in fact an action of sovereignty to decide will enter into the convention or to decide to pass a law and further sovereignty.

KERRY O'BRIEN: Okay. And I'm going to have to cut it right there, I'm afraid. Thank you very much to the three of you.