Inquiry into the Commonwealth’s Treaty-Making Process

Download PDF

Download Word

1 Introduction and summary

1. The Australian Human Rights Commission makes this submission to the Foreign Affairs, Defence and Trade References Committee in its Inquiry into the Commonwealth's Treaty-Making Process.

2. The Commission is established by the Australian Human Rights Commission Act 1986 (Cth) and is Australia's national human rights institution with an accredited ‘A' status. [1]

3. As the interdependence of countries has intensified, the need for bilateral and multilateral treaties has expanded. [2] Australia is a Party to multiple treaties including those on defence and security, environment, aviation, shipping, health and social services. Australia is also a party to the seven key human rights treaties. [3]

4. Bilateral and multilateral treaties are an important part of Australia's domestic agenda, foreign affairs and international reputation. However, many treaties, may not be readily recognised as having human rights implications. Trade agreements, for instance, can have significant human rights implications. [4] This is increasingly recognised, [5] and countries are now including the protection of human rights in their trade agreements. [6]

5. Currently there is no mechanism to ensure that a human rights analysis of all treaties, such as trade agreements, is conducted prior to Australia ratifying these treaties. Accordingly, this submission proposes a mechanism, similar to that of a human rights statement of compatibility, be incorporated into the National Interest Analysis (NIA) and be tabled in Parliament for consideration by the Joint Standing Committee on Treaties (JSCOT).
6. The JSCOT plays an important role in reviewing and reporting on proposed treaty action and providing scope for independent analysis of treaties. However, the JSCOT does not specifically inquire into the human rights implications of treaties. As the JSCOT is empowered to review and report upon matters arising from treaties and related NIAs, there is significant scope for JSCOT to undertake a review of the human rights implications of treaties prior to ratification. Cooperation with the Parliamentary Joint Committee on Human Rights (PJCHR) when undertaking this analysis would further promote the protection of human rights in Australia.

7. The report by the Special Representative to the United Nations Secretary General (J Ruggie 2005-2011) on business and human rights affirms that countries should consider its human rights obligations even when pursuing business related policy objectives such as trade agreements. [7]

8. The Commission also considers that treaty obligations, such as the periodic reporting processes in human rights treaties, come within the implementation of a treaty. This submission therefore also focuses on the coordination of the treaty reporting process and the implementation of treaty body decisions.

9. The human rights treaties ratified by Australia contain an obligation to prepare periodic reports for the relevant UN monitoring committee on the implementation of the particular treaty. Currently, preparation of periodic reports to the UN is conducted by three government departments. The UN has proposed that States Parties establish a standing national reporting and coordination mechanism (SNCRM) to ensure a more systemised approach to report preparation and to improve the process of follow-up to treaty bodies' concluding observations. [8] In view of the current division of responsibility in report preparation and the increasing complexity and number of human rights treaty reports, the development of a SNCRM would build upon current human rights expertise, develop greater institutional memory on human rights and create a centralised point for liaison with the UN and civil society.

10. Currently there is no formal mechanism that allows for tabling and debate of UN treaty body reporting and decisions. Tabling of these documents would better fulfil Australia's human rights obligations.

2 Recommendations

1. The Commission recommends that a human rights analysis be incorporated into the NIA, particularly for Category 1 and Category 2 treaties, and be tabled in Parliament for consideration by JSCOT.
2. The Commission recommends, taking into consideration the resource capacity of the PJCHR, that the PJCHR be incorporated into the treaty-making review process to promote joint committee consideration of the human rights implications of treaties prior to Parliamentary debate on ratification.
3. The Commission recommends the Australian Government establish a SNCRM to coordinate the development of periodic reports and to coordinate the process of follow-up to UN committee concluding observations.
4. The Commission recommends the Australian Government table in Parliament, all treaty body reporting and concluding observations.

3 National Interest Analyses and Human Rights Analysis

1. The Commission congratulates the Australian government for its continued support of the treaty-making reform process commenced in 1996. The reform process included the tabling of a treaty for at least 15 days prior to ratification, the tabling of an accompanying National Interest Analysis (NIA) and the establishment of the Joint Standing Committee on Treaties (JSCOT). [9]

2. During the review process, treaties are designated a category status. Category 1 treaties are tabled for 20 parliamentary joint sitting days. Category 2 treaties, considered for the most part to be uncontroversial in nature and routine in form, are tabled for 15 parliamentary joint sitting days. Category 3 treaties, those that are considered to be minor treaty actions may be tabled in Parliament with an Explanatory Statement. [10]

3. The NIA considers various aspects of the treaty including why Australia should become a party to a particular treaty. Information on the Department of Foreign Affairs and Trade treaty making website indicates that, where it is considered relevant, the NIA will also include ... [F]orseeable economic, environmental, social and cultural effects of the treaty action; the obligations imposed by the treaty; its direct financial costs to Australia; how the treaty will be implemented domestically; what consultation has occurred in relation to the treaty action and whether the treaty provides for withdrawal or denunciation. [11]

4. Clearly, some of the considerations within the NIA may overlap with Australia's obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR). For example, work, health and cultural rights. As trade agreements can also impact on privacy rights and political participation, [12] amongst other civil and political rights, there is also the potential for overlap with the International Covenant on Civil and Political Rights (ICCPR) . While NIAs do consider protections in areas such as public welfare, health, culture, and the environment, [13] there is generally no specific consideration of human rights implications prior to a treaty being ratified.

5. The incorporation of a human rights analysis into the NIA would require a review of the following human rights treaties in addition to the ICESCR and the ICCPR: [14]

• International Convention on the Elimination of All Forms of Racial Discrimination

• Convention on the Elimination of All Forms of Discrimination against Women

• Convention on the Rights of the Child

• Convention on the Rights of Persons with Disabilities .

The review should also include the UN Declaration on the Rights of Indigenous People, [15] and the Universal Declaration of Human Rights. [16]

1. The Commission considers that, in view of Australia's human rights obligations, it would be an advantage to have an appropriate mechanism in place to consider the human rights implications of treaties, including trade agreements, during the drafting and review process prior to ratification.

3.1 Mechanisms for human rights analysis

1. The Commission considers that there are two potential approaches for the incorporation of human rights considerations into the NIA:
2. An analysis analogous to statements of compatibility which undertakes an assessment of the compatibility of the treaty with Australia's human rights obligations
3. The human rights analysis within the NIA would be completed by the Department when drafting the NIA. If guidance on the compatibility of the treaty with human rights obligations is required, this could be obtained from various sources, for example, the Attorney-General's Department. Subject to resources, guidance could also be obtained from the Parliamentary Joint Committee on Human Rights (PJCHR) or the Australian Human Rights Commission.
4. An alternative mechanism to the incorporation of a human rights analysis of treaties into the NIA, is the development of a human rights impact assessment (HRIA).

5. HRIAs are comprehensive and systematic analyses of expected impacts of specific activities on human rights. HRIAs on trade agreements would ‘seek to assess how the legal obligations of that agreement will affect (negatively and positively) human rights'. [19] HRIAs are used to make decision-making more transparent, to encourage debate on policy reforms and to promote evidence-based policy-making. [20] They also present a clear effort by countries such as Australia, who have ratified human right treaties, to address their human rights obligations with respect to business and trade. [21] The UN report on the guiding principles of HRIAs recommends that HRIAs be prepared prior to the conclusion of trade agreements, [22] and by experts independent from the Executive. [23]

6. The Commission acknowledges that the development of an HRIA is resource intensive. The number and frequency of treaties that are signed makes the development of HRIAs for all treaties currently unfeasible. Accordingly, the Commission considers that the preferred approach would be to adopt a process of incorporating a human rights analysis similar to that of a SOC as discussed above. This approach would ensure the incorporation of human rights considerations into trade and other Category 1 and 2 treaties and promote the protection of human rights in treaty making.

7. The Commission recommends that a human rights analysis, analogous to that of a statement of compatibility, be incorporated into the NIA, particularly for Category 1 and Category 2 treaties and be tabled in Parliament for consideration by JSCOT.

• An analysis analogous to statements of compatibility which undertakes an assessment of the compatibility of the treaty with Australia's human rights obligations
• The conduct of a human rights impact assessment of the treaty.

4 Parliamentary review of treaties

1. The Commission acknowledges the important role of the JSCOT in reviewing and reporting on proposed treaty action and providing scope for independent analysis of treaties. The Commission also acknowledges the role of public submissions as an opportunity for public consultation in the review and assessment of treaties. This process should continue for each treaty that JSCOT considers.

2. Currently reports by the JSCOT do not specifically inquire into the human rights implications of treaties. However, as the JSCOT is empowered to review and report upon matters arising from treaties and the related NIAs, [24] there is significant scope for the JSCOT to include a review of the human rights impact of treaties within their reports on their own initiative or where these considerations are included in the NIA.

3. The Commission acknowledges the experience of the JSCOT in undertaking inquiries into the human rights obligations contained in human rights treaties. [25] However, the ability of the JSCOT to directly consider the human rights implications of non-human rights treaties may require them to draw expertise from other committees or sources. The Commission is of the opinion that the most appropriate parliamentary committee for this process would be the PJCHR.

4. The PJCHR reports on bills and legislative instruments that are introduced to the parliament for compatibility with human rights. [26] The PJCHR has the human rights expertise to properly consider the human rights implications of bills and other instruments. It would, subject to resources, be able to extend this expertise to consider the human rights implications of treaties prior to Parliamentary debate on ratification.

5. It is important to note that this cooperation would require an amendment to the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) to expand the role of the functions of the PJCHR. Alternatively, PJCHR cooperation with the JSCOT could be achieved with a specific direction from the Attorney-General under the existing legislation.

6. The Commission recommends, taking into consideration the resource capacity of the PJCHR, that the PJCHR be incorporated into the treaty-making review process to promote joint committee consideration of the human rights implications of treaties prior to Parliamentary debate on ratification.

5 Coordination of treaty reporting processes

1. Australia's reputation and effectiveness in international relations can be affected by treaty compliance. Treaty compliance can include ongoing reporting obligations such as those contained in human rights treaties. [27] The Commission considers that components of the implementation of human rights treaties are the mechanisms put in place for the periodic reporting to human rights monitoring bodies and follow-up to that reporting process.

2. The human rights treaties to which Australia is a party, contain an obligation to provide a periodic report to the relevant UN monitoring committee. The Australian Government is responsible for the preparation of the periodic reports. Currently, the reports are delegated to three government departments who are responsible for co-ordinating and writing the reports.

3. The periodic reports relating to the International Covenant on Civil and Political Rights , the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities are prepared by the Attorney-General's Department. The reports under the International Covenant on Economic, Social and Cultural Rights and the International Convention on the Elimination of All Forms of Racial Discrimination are currently prepared by the Department of Foreign Affairs and Trade. The report under the Convention on the Elimination of All Forms of Discrimination against Women is currently prepared by the Office for Women under Prime Minister and Cabinet. [28]

4. Each department in fulfilling Australia's treaty obligations consults with relevant federal, state and territory bodies, civil organisations and other stakeholders to develop the Australian government report on the human rights issues in question.

5. The UN, as part of the treaty body strengthening process, [29] has proposed that States Parties establish a standing national reporting and coordination mechanism (SNCRM). [30] The role of the SNCRM would be to develop a more systemised and centralised approach to the preparation of reports and improve the process of follow-up to treaty bodies' concluding observations, [31] and decisions. [32] The SNCRM would also provide the opportunity to build upon the human rights expertise currently within the machinery of government, develop greater institutional memory on human rights and create a centralised mechanism for liaison with the UN and civil society.

6. In view of the division of responsibility in the preparation of treaty periodic reports and the increasing complexity and number of human rights treaty periodic reports, [33] the Commission considers that there is scope to develop a more consolidated mechanism for the development of periodic reports to better meet human rights treaty obligations.

7. An Australian SNRCM might involve formalising an inter-departmental committee approach, with clear terms of reference of how it operates across all of Australia's human rights obligations, with a resourced secretariat coordinated by one department.

8. The Commission recommends the Australian Government establish a SNCRM to coordinate the development of periodic reports and to coordinate the process of follow-up to UN committee concluding observations.

9. The Commission also notes that there is no formal mechanism that allows for the UN monitoring committees' treaty body reporting and concluding observations to be reported back to the Australian Parliament. Tabling of these documents would place the concluding observations on the public record and provide an opportunity for debate on their implementation.

10. To better fulfil Australia's human rights obligations contained in human rights treaties, the Commission recommends the Australian Government table in Parliament, all treaty body reporting and concluding observations.

[25]ent of Australia, United Nations Convention on the Rights of PersoUnited Nations Convention on the Rights of Persons with Disabilities (New York, 13 December 2006)v.au/Parliamentary_Busineshttp://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=jsct/4june2008/report.htmon Treaties, Parliament of Australia, Optional Protocol to the Convention against TortOptional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 18 December 2002arliamentary_Busineshttp://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=jsct/28february2012/report.htmme="fn26">[26] Human Ri [26] 1 (Cth) s 7 [27] Conv [27] Disabil Convention on the Rights of Persons with Disabilities, Political Ri International Covenant on Civil and Political Rights, Social and C International Covenant on Economic, Social and Cultural Rights ll Forms of Di Convention on the Elimination of All Forms of Discrimination against Women, d, 1989 Convention on the Rights of the Child, Cruel, Inhu Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, nation of A International Convention on the Elimination of All Forms of Racial Discrimination, es/Treaties.aspx https://treaties.un.org/pages/Treaties.aspx?id=4&subid=A&lang=en > Attorney-General's Depar [28] eporting, Human rights treaty body reporting at http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporting/Pages/default.aspx Office of the High Commi [29] body strengthening. At Treaty body strengthening /brok https://humanrights.gov.au/our-work/commission-general/broken-link a> United Nations, Unit [30] sals, Report by th United Nations reform: measures and proposals the strengthening of the human rights treaty bodies, UN Doc A/66/860 (2012), p 86. At https://humanrights.gov.au/our-work/commission-general/broken-link a> As part of the reporting [31] conduct a constructive dialogue following which Concluding Observations or Recommendations are issued by the relevant UN monitoring committee. For example, see the Concluding Observations issued by the UN Committee Against Torture following the constructive dialogue with Australia held during the 53rd Session of the Commission against Torture. At http://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=930&Lang=en United Nations, United Natio [32] >, Report by the United United Nations reform: measures and proposals engthening of the human rights treaty bodies, UN Doc A/66/860 (2012), p 86. At https://humanrights.gov.au/our-work/commission-general/broken-link The Report of the High Commissio [33] The Report of the High Commissioner notes that the growth of the treaty body system, coupled with the creation of the Universal Periodic Review process has led to an exponential growth in the number of reports States Parties are to prepare for submission to the UN and of concluding observations and other decisions to be implemented by States Parties.