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Treaties tabled on 3 February 2009

CHAIR —Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and warrants the same respect as proceedings of the House and the Senate. The giving of false or misleading evidence is a serious matter and may be regarded as a contempt of parliament. I invite you to make some introductory remarks before we proceed to questions.

Dr Arnott —Thank you very much. I will make a short opening statement on behalf of the department. The Convention on the Protection and Promotion of the Diversity of Cultural Expressions plays an integral role in achieving UNESCO’s core aims, which are to promote unity and diversity and to recognise the common heritage of humanity. The convention recognises the pluralism of cultural identity within society and promotes cultural diversity as a renewable and transformative human resource.

Australia has a long-standing commitment to the protection and promotion of cultural diversity, which is in harmony with the aims of the convention. The Australian government is supportive of promoting creativity and dialogue between cultures and ensuring people can express themselves through their artistic works and cultural expressions while also having access to those of others. The government’s objective in acceding to the convention is to develop and maintain measures that protect and promote cultural diversity and to broaden opportunities for Australian artists and cultural practitioners both locally and overseas. Becoming a party to the convention would give Australia an opportunity for greater international engagement on cultural issues through the UNESCO forum and would be an expression of Australia’s ongoing commitment to protecting and promoting cultural diversity in its territory. The convention was adopted by UNESCO in 2005, and entered into force in March 2007 following ratification by the required 30 states. As of today, there are 95 state parties to the convention, plus the European community. Australia was involved in the development of the convention in 2005.

The Australian government committed to ratifying and giving effect to the convention in the New direction for the arts policy paper in 2007. Accession to the convention would be a positive contribution to the government’s efforts to protect and promote Australia’s cultural goods, services and activities, both here and overseas. Adoption of the convention would also encourage Australian artists to participate in cultural exchanges and to have further engagement with international audiences. The convention has the potential to make a wider range of cultural goods, services and activities available to Australian audiences and consumers, fostering a greater recognition of the diversity among Australia’s Indigenous and immigrant cultures and cultures from around the world. Becoming a party to the convention would also give Australia an opportunity for greater international engagement on cultural issues through the UNESCO forum and be an expression of Australia’s ongoing commitment to protecting and promoting cultural diversity.

On 30 September 2008, the Department of the Environment, Water, Heritage and the Arts sent out a call for submissions to 121 arts, culture, Indigenous, academic and collecting institutions, individuals and organisations. Written submissions were invited in relation to significant policy resourcing or infrastructure implications that would affect activities under the convention, opportunities created or constraints imposed by the convention on the organisation’s ability to protect and promote diversity of cultural expressions, and any other significant implications of Australia’s accession to the convention. A total of 17 submissions were received from organisations and agencies, plus two letters of support. All submissions were supportive of the Australian government’s accession to the convention. Many stated that the aims of the convention are already integral in their own organisational aims and activities, and suggested new programs that could be implemented by their organisation under the convention. That concludes my opening statement. Thank you.

CHAIR —Thank you. I understand that, during consultations on the convention, some Indigenous advocacy groups argued that, in order for Australia to meet its obligations, heritage and land access laws might have to be modified in order to protect lands and territories that are culturally significant for Indigenous Australians. Do you have a response to that? Do you think that there might be a need for legislation to preserve Indigenous cultural expressions?

Dr Arnott —We are not of the view that that is required now. Our advice is that we can ratify the convention without any need for change to current legislation. It was raised that Indigenous Australians and their cultural expressions may not be afforded preferential treatment under the treaty, but Australia does have a range of measures in place already to support Indigenous culture and cultural expression.

CHAIR —An issue also raised by Indigenous organisations was that the capacity of Australian cultural organisations, including Indigenous organisations, to apply to the convention’s International Fund for Cultural Diversity could be undermined due to our status as a relatively wealthy developed nation. Does the department have a view about that?

Mr Richards —The details of how the fund will operate as far as Australian cultural organisations are concerned is really yet to be determined, because Australia is obviously not a signatory to the convention. Our understanding, though, is that, while the convention favours preferential treatment for cultures from developing countries, it certainly does not preclude cultural organisations and indigenous cultures from developed countries from benefiting from the access to the convention’s fund.

CHAIR —This is the final question from me. Article 6(2)(a) of the convention states that parties may adopt ‘regulatory measures aimed at protecting and promoting diversity of cultural expressions’. Some UNESCO members, including the United States, have not supported the convention due to concerns that that article might justify economic protectionism and may impede world trade. Do you think that concern is valid?

Dr Arnott —It has not been raised in the context of our work, as far as I am aware. Is that right, Stephen?

Mr Richards —That is certainly the case, and our understanding is that the convention, particularly in the way that Australia has adopted a reservation to article 20, means that Australia’s international treaty obligations remain in effect and Australian government aspirations in terms of free trade through its free trade negotiations will not be compromised by ratification of the convention.

Ms PARKE —I am glad you raised the issue of the reservation to article 20, because there has been a submission from Mr Ben Goldsmith, who said that the reservation ‘effectively negates’ many of the protections provided under the treaty, particularly in relation to trade agreements. Why does the government see the need to make a reservation to article 20? How will this reservation be received by other states party to the convention?

Ms Robertson —I might just clarify that what we are seeking to do here is not a reservation but an interpretive declaration. They are two distinct things under international treaty law. A reservation performs a different function. A reservation seeks to limit—

Ms PARKE —I am sorry, but the background material we have says that the government proposes to accede to the convention with an interpretive declaration to article 16 and a reservation to article 20.

Ms Robertson —I beg your pardon; I thought you were talking about article 16. I think the reason why a reservation was viewed as necessary in relation to article 20 was that the treaty text is a little unusual in that sense. Certainly, under international principles of treaty law, we tend to interpret treaties in a manner consistent with our existing obligations. Even though I think that is captured, in a sense, if we look at—

Ms PARKE —Article 20(2).

Ms Robertson —article 20(2), it is to clarify and underline that point.

Ms PARKE —That would tend to suggest that it is not necessary, given the article which says:

Nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties.

It seems to me that this reservation is unnecessary.

Ms Robertson —I think the concern at the time was that article 20(1)(a) and (b) was unusual text and could cause confusion, and that was why the reservation was put in.

Ms PARKE —Presumably many other different treaties are entered into by Australia and their differing obligations are interrelated. Presumably Australia manages those interrelated obligations and still manages to abide by the terms of those differing treaties. Why is this one treated differently?

Mr Braddock —If I may add to that answer: treaties will often have a provision in them dealing with relations with other treaties. I think in this case the relationship clause, article 20(2), is unusual—for example, in paragraph (1) it states ‘without subordinating this convention to any other treaty’, which causes some ambiguity when you read that together with the provision in article 22 which you just mentioned. So, from my understanding, the purpose of the reservation is to clarify the operation of this treaty and its relation to other treaties which we are already a party to and may become a party to in the future.

Ms PARKE —How do you think this reservation will be received by other states that are parties to the convention? Making a reservation to a treaty is a very serious thing to do.

Mr Braddock —It can be a serious thing to do. It is permitted by this treaty and we know that at least one other state has made a similar reservation. Others might. I am not aware of any adverse reaction to that reservation.

Dr Arnott —We are not aware of any adverse reaction.

Ms PARKE —In relation to article 16, on which the government proposes to make an interpretive declaration clarifying that the convention will not affect the content or interpretation of Australia’s immigration laws, there has been a submission from Dr Ben Saul, who claims that the declaration reinforces the discriminatory nature of Australia’s immigration laws against people from developing nations. How might domestic laws be affected if Australia acceded without this interpretive declaration?

Ms Ireland —We thought there were two interpretations open with that particular clause, one which would mean there is no change to Australian immigration laws and one which would require, for example, a new visa class to be created. The interpretive declaration was just to make it clear that the visa regime would continue as is rather than having to have specific new visa regimes created.

Senator CASH —My questions are for Dr Arnott, in relation to some of the issues you raised in your opening statement. You stated that accession to the convention would broaden opportunities for Australian artists both locally and overseas. Could you expand upon how you see the convention broadening these opportunities? What opportunities are you referring to, and how would it broaden them?

Dr Arnott —Obviously, currently, Australian artists do get lots of opportunities to perform overseas or to display their works and so on. Being a part of the convention just means that Australia is a part of a broader forum which regularly engages on issues of cultural diversity, and being part of that forum will hopefully grow opportunities for Australian artists.

Senator CASH —So it is awareness raising?

Dr Arnott —Yes, that is right.

Senator CASH —You also said that the treaty has the potential to make a wider selection of Australian cultural goods, services and activities available locally. What did you mean by that?

Dr Arnott —Once awareness is out there that we have acceded to the convention, there is likely to be some interest from cultural organisations in promoting that and working with artists to develop activities and so on which are clearly in line with the aims and principles of the convention.

Senator CASH —Are you saying that we do not do that already because we are not party to the convention?

Dr Arnott —No. I think we do that extensively already, but I would hope that there would also be a bit of impetus to increase that activity as a result of acceding to the convention.

Senator BIRMINGHAM —Thank you for your time today. This convention, I believe, was finalised in 2005. Has consideration of ratification been a matter of government for some time now that spans the period of the previous government as well?

Dr Arnott —I believe that is correct.

Mr Richards —The government made a commitment in its New Directions for the Arts policy statement, which came out in September 2007, to ratify the treaty, and that is the action that we are acting on at the moment. When the treaty was first negotiated by UNESCO in 2005, the government at that time made a decision to not support the convention; in fact, to abstain from the vote. The motivation for that were concerns over the ambiguity of article 20 and also concerns over article 16 relating to immigration. So, taking on board those considerations, they have been a key deliberation for government in terms of making a judgment about how to appropriately ratify the convention on this occasion.

Senator BIRMINGHAM —Obviously, by September 2007, they thought they had found a pathway for appropriate ratification.

Mr Richards —That was the government’s policy commitment, and we, since that time, have been working with relevant departments such as Foreign Affairs and Trade, the Attorney-General’s Department and other affected departments through an IDC to ensure an appropriate framework in which that would operate and to determine the extent to which legislative amendment may or may not be required. Through that IDC, we have confirmed that that is not necessary but that the interpretive declaration to article 16 and the reservation to article 20 are appropriate mechanisms.

Senator BIRMINGHAM —I will turn to the International Fund for Cultural Diversity. What is its annual targeted budget expected to be? I note in the NIA that Australia’s annual contribution is expected to be $70,000 per annum. That does not strike me as a sum that is going to see an international fund for cultural diversity add up to terribly much.

Mr Richards —I am not aware of the specific size of the fund. That may be something we can take on notice. Our understanding is that contributions from countries are one per cent of their GDP.

Ms Carter —It is still actually being formalised through the intergovernmental committee for the convention at the moment, so the amount is not known and the specific fundraising mechanisms are still being worked out.

Senator BIRMINGHAM —I am guessing it is not one per cent of GDP, not if Australia’s contribution is going to be $70,000 per annum—not unless the Rudd recession is going to hit much harder than anybody is willing to admit at present.

Mr Richards —Sorry, it is one per cent of the annual UNESCO contribution; our apologies.

Senator BIRMINGHAM —Thank you, Mr Richards. How is that fund money to be distributed? What is its purpose?

Dr Arnott —I think that is still being decided by the interdepartmental committee, so we are not aware of how that is actually going to be implemented at this stage.

Senator BIRMINGHAM —And its purpose? Is it expected that it is for grants to artists from developing countries or grants to arts agencies in developing countries? Does it have a purpose?

Ms Carter —As far as I know, there are not specific restrictions on who can apply as yet. Those are still being worked out.

Senator BIRMINGHAM —So it is a grants based fund?

Ms Carter —Yes, I think so.

Senator BIRMINGHAM —Perhaps you could take that on notice and provide us with a bit of a precis of what that is. That would be helpful.

Dr Arnott —Sure.

Senator CASH —I would like to pick up on one question in relation to that. I know, in relation to the International Fund for Cultural Diversity, that it is financed in part by the voluntary contributions made by parties and that there is a high level of expectation that Australia would make a contribution. How many of the countries that have already ratified the convention make voluntary contributions?

Mr Richards —That is not detail that we have available at the moment. That may be something that we can endeavour to find more information on and pass that back to the committee.

Senator CASH —That would be appreciated, thank you.

CHAIR —As there are no further questions, thank you very much for attending to give evidence today. There are a couple of things that you indicated that you might take on notice. We would appreciate your responding to the committee secretariat in due course on those.

[10.22 am]