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The implications for Australia for the Civil and Political covenant (address to the U.N. Association of Australia, seminar on human rights)



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58

THE IMPLICATIONS FOR AUSTRALIA OF THE

CIVIL AND POLITICAL COVENANT

An address by the Attorney-General,

Senator The Hon. Peter Durack, Q.C.

to the United Nations Association of Australia

Seminar on Human Rights, University of

■ Sydney, Saturday, 13 May 1978

I wish to thank the United Nations

Association of Australia, through you Mr President, for

the opportunity to address this Seminar. At the same

time I want to commend the Association for the leading

role it has adopted for itself in the promotion of

Human Rights in our country, not least through the

organisation of seminars and·meetings to encourage and

foster public debate on current issues. The present

occasion is an excellent example of this.

I also take this opportunity to congratulate '

the Association on the preparation of the report on the

1977 Seminar, held on the topic "A Human Rights

Commission for Australia", which contains the texts of

the addresses and the resolutions and, by way of

addendum, a copy of The Human Rights Commission Bill

introduced in the Federal Parliament on 1 June 1977. In

the concluding remarks to his introduction to the

report Mr R.K.R. Alston, President of the Victorian

Branch of the Association, stated that "A permanent

record of the proceedings is a necessary basis for

informed public discussion and governmental decision

making". I heartily endorse those sentiments and trust

that the present proceedings will likewise be

reproduced in permanent form.

I have been invited to address the Seminar on

the implications for Australia of the Civil and

Political Covenant. Under this heading, I will talk on

the requirements for implementation of the covenant and

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also outline the Commonwealth Government's attitude to

the question of Australian ratification of the

covenant. ' ,

Before discussing these matters I think I

should emphasize that establishment of a Human Rights

Commission is a firm commitment of the Government and

an essential plank in its program for protecting civil

liberties and enhancing individual rights. This

Commission will of course have a vital role in relation

to the International Covenant. .

The International Covenant on Civil and

Political Rights is, as you are aware, one of a number

of important instruments that have been developed by

the Member States of the United Nations organisation

out of the Universal Declaration of Human Rights.

However, unlike the Declaration which is in essence a

statement of International Human Rights Principles, the

Covenant is intended as a statement of civil and

political rights to be adopted at the domestic level by

each contracting party to the Covenant.

Briefly, the International Covenant on civil

and political rights requires a state party to

undertake to ensure to all individuals within its

territory and subject to its jurisdiction, the rights

recognised in the Covenant. These rights.include the

right to freedom from arbitrary arrest, the right to a

fair trial and the right to protection from torture and

cruel, inhuman or degrading treatment or punishment.

The Covenant is also concerned with such basic rights

as the right of freedom of movement, religion, expres­

sion, peaceful assembly and association. The latter

rights are not expressed to be absolute rights and

restrictions may be placed on them where necessary to

protect public safety, order, health, or morals or the

rights and freedoms of others.

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It will be seen that the Covenant deals with

matters that are the subject of both Commonwealth and

State laws. For this reason, and consistent with the

Government's philosophy of "Co-operative Federalism",

the implementation of the Covenant is seen as a matter

requiring close Commonwealth and State co-operation.

Turning now to the question of what action

needs to be taken by Australia to implement the

Covenant, there are several observations I will make in

relation to Article 2.

The first of these is that a study of

relevant United Nations Papers makes it clear that this

article, (in particular the words "in accordance with

its own constitutional processes" appearing . in

paragraph 2), expressly recognises the right of each

state party, when taking such steps as may be necessary

to implement the Covenant, to do so within the context

of its own constitutional framework.

. A Human Rights Committee has been established

pursuant to Article 28 with the specific function of

monitoring the progress of state parties in the

fulfillment of their obligations under the Covenant. At

its meeting in Geneva, as recently as February of this

year, the committee had occasion to consider the first

report submitted by the United Kingdom Government on

its implementation of the Covenant. In 'the course of

its deliberations, the committee acknowledged the right

of the United Kingdom Government to implement the

Covenant in a manner consistent with its own

legislation and legal structures, i.e. by a combination

of statutory laws and the common law.

From perusal of a summary report of the

proceedings, it would appear that the committee

proceeded on the basis that the Covenant did not

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presuppose a particular type of constitutional system

and that the most important consideration is the impact

of any given system on the enjoyment of the basic

rights embodied in the Covenant. Furthermore, it would

seem that the committee did not take the view that

state parties were obliged to incorporate the Covenant

in their legislation.

These matters have particular significance

for Australia which, leaving aside its federal

constitution, has legislative and legal structures

similar to those in.the United Kingdom.

For instance, it must now be quite clear that

the introduction of legislation in the form of a Bill

of Rights to implement the Covenant is not necessary.

You would be aware, of course, that the Commonwealth

Government has repeatedly expressed the view, both

within and without the Parliament, that it does not

regard a Bill of Rights as an appropriate vehicle for

giving effect to the Covenant. I do not propose at this

time to reiterate the details of the Government's

objections: These were outlined by Mr Ellicott when he

addressed the 1977 seminar and I simply refer you to

the Seminar report.

Another important observation I would like to

make concerning the Covenant, is that unlike most

treaties affecting domestic laws, Article 2 requires

only that state parties "undertake to take the

necessary steps" to give effect to the rights

recognised in the Covenant. Full implementation before

ratification is therefore not required, although by

implication early action to remedy any deficiencies

will need to be taken and the Covenant requires a

report to be submitted after one year on the measures

adopted and the progress made.

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At the same time, it is fair to say, I feel,

that having regard to the existence of such safeguards

as the common law, statutory and procedural remedies

(such as those provided by the various ombudsmen and

the Administrative Appeals Tribunal), the system of

representative and responsible government, the Rule of

law, the Independence of the Judiciary and the Freedom

of the Press, Australia is already substantially in

conformity with the Covenant. Nevertheless there are

still a number of areas which require attention. It

would b e ' a function of the proposed Commission to

identify these and to advise Government on appropriate

legislative and/or· administrative measures that need to

be taken.

. My third observation relates to the

provisions of Article 2 of the Covenant which provides

that each state party is to undertake to ensure that an

individual whose rights as recognised in the Covenant

are violated has an effective remedy, and that an

individual claiming such a remedy has his right thereto

determined by "Competent Judical, Administrative or

Legislative Authorities, or by any other competent

authority provided for by the Legal System of the

State". The International Covenant and the debates that

preceded the Covenant make it clear that processes to

respond to individual complaints under the Covenant may

be provided not only by legislative measures and common

law and procedural remedies, but also by remedies of an

administrative and executive character. As I have

already mentioned a variety of legal and administrative

processes already exist at both Commonwealth and State

levels that enable complaints of violations of the

Covenant to be investigated.

To supplement existing processes at the

Commonwealth level, and to provide procedures to enable

individual complaints of violations of the covenant to

be investigated on a systematic basis, the Commonwealth

Government has proposed the establishment of a Human

Rights Commission.

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It may be recalled that when my predecessor,

Mr Ellicott, first proposed the establishment of a

' Human Rights Commission it was in the context of a

joint Commonwealth/State venture. The salient features

of the Commission as then envisaged were that the

Commission should have responsibility for

administration of specific Commonwealth Laws in

^ relation to human rights: the Racial Discrimination Act

was instanced as such a law. It was further proposed

that the Commission should have the function of

< · undertaking a review, as to whether Commonwealth and

State Laws and practices/ are consistent with the

principles and standards for civil and political rights

enunciated in the Covenant. It was intended that this

particular function should be exercised within

guidelines to be set by an associated body, to be known

as the Human Rights Council, comprising representatives

of the States and the Commonwealth.

In May 1977, discussion1 took place between

the Commonwealth and the States on the proposed

« Commission. While there was general recognition of the

need for a co-ordinated approach in the area of human

rights, the meeting did not come to any agreement on

the form this should take.

In the event Mr Ellicott introduced a Bill in

the House of Representatives on 1 June 1977 to

establish a Human Rights Commission with functions

confined 'to areas of Commonwealth Legislative

Competence - namely in the Territories and matters

arising under Commonwealth or Territory Legislation. As

* I mentioned earlier a copy of the Bill appears at the

. back of the report on the 1977 Seminar.

As announced at the time, The Bill was

allowed to lie on the table of the House to provide

> adequate opportunity for public comment and discussion.

The Bill in fact aroused considerable interest and many

/

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valuable and constructive comments were received and a

review of the Bill, in the light of comments received,

is virtually completed. The comments received by the

Government have reflected a number of opinions in

favour of a joint Commonwealth/State Commission along

the line originally envisaged. The Government also

believes that it is desirable that the States have a

role to play in the proposed Commission. This does not

mean that the role of the Commonwealth Commission needs

to extend to an examination of State Laws and

Practices. These are matters which remain to be

settled. I therefore propose, before proceeding further

with legislation for a Commonwealth Commission, to have

discussions with my counterparts in the States to again

explore the options available for a joint

Commonwealth/State approach to Human Rights Issues. At

a meeting I had with the State Attorneys-General

earlier this year. I took the opportunity to raise this

proposal and agreement was forthcoming for discussions

in July. The Commonweath also proposes that preliminary

discussions should be held at' senior officer level.

Every step will be taken to ensure that the States

understand the meaning and significance of the

Commonwealth proposals.

In addition to the considerations that are

common to both the Commonwealth and the States in

relation to the domestic implementation of the

Covenant, there is an additional important factor that

pertains only to the Commonwealth. I am referring here

to the Commonwealth Government's responsibility,

pursuant to the Foreign Relations Power conferred on it

by the Constitution, for representing Australia at the

International Level and for the ratification of

International Treaties'.

According to the latest information I have,

forty-four states, including the United Kingdom,

Denmark, Finland, The Federal Republic of Germany,

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Canada, Spain, Sweden, Norway, as well as the Soviet

Union and other Socialist Countries, and Third World

Countries, have already ratified the Covenant, which

came into force on 23 March 1976.

In the Government's view there are compelling

reasons for the ratification by Australia of the

Covenant in the near future. Failure by Australia to

ratify the Covenant might well give rise to the

implication that Australia's protection of basic rights

is inferior to the protection provided- in other

countries that have ratified the Covenant. A high

standard is maintained throughout Australia for the

protection of civil and political rights and it is

considered that Australia would, by ratification of the

Covenant, demonstrate both the quality of its support

for human rights within this country and its

committment to the maintenance of human rights at the

international level.

Furthermore, human rights issues are at

present very much to the fore in day to day

international relations in which Australia is involved

and Australia's Foreign Policies have been placing

strong emphasis on the protection of Human Rights. Last

year, Australia was elected as a member of the United

Nations Commission on Human Rights for a three year

term (1978-1980). The elections for this Commission

were strongly contested and it was a signal honour for

Australia to be selected. The Australian Delegation has

recently submitted its report on the 34th Session of

the Commission held in Geneva in February/March of this

year. While I have not yet had the opportunity to

consider the Report in detail, I understand that

Australia played a key negotiating role in relation to

a number of issues considered at the 34th Session.

Ratification of the Covenant by Australia would

facilitate Australia's work both at the United Nations

and in the Human Rights Commission.

- 6,6 -

To summarize wh at I have b e e n saying t o d a y ,

the G over nm en t ha s a firm commitment to establish a

H u m a n R ights C o mm is si on after due consultations with

the States, p ro gr es s in that ma tt er ha s been slower

than the Gover nm en t h o pe d but all possible steps are

b e i n g t aken to bring this matter to conclusion. The

C o m m i s s i o n will pla y a vital role in the implementation

of the Covenant w i t h i n Australia. '

As regards the International Covenant, the

C o mm o n w e al t h has m oved to obtain State support. We

reco gn iz e that there are c ompelling reasons at the

I nt ernational level p oi n t i n g to early Australian

r a t i f ic a ti on and we are conscious that A us tralia

a lready substantially complies w it h the requirements of

the Covenant. These matters have bee n impressed upon

the States in a letter recently writ te n by the Prime

M in i s t e r to State Premiers in which he sought their

support for A u s t r a l i a n ratification of the Covenant.

The C o m mo nw ea lt h has made its attitude clear and feels

sure that the States will give constructive and helpful

r e s p o n s e s .

In conclusion, I draw your attention to the

fact that 10 Decem be r 1978 is the 30th A nniversary of

the Universal De cl ar at io n of H uman Rights. The

C o m m on w ea lt h Government, mindful of this fact, has

a lready put in train arrangements to suitably

comme mo rate this event. Details of these arrangements

will be ann ou nc ed at an ap propriate time.

Sydney

13 M ay 1978

17/78

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