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Inquiry into the Commonwealth’s Treaty-Making Process

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Joint Standing Committee on Foreign Affairs, Defence and Trade

Committees submitted to
Joint Standing Committee on Foreign Affairs, Defence and Trade

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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:
    • 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.
       
  2. Within the parliamentary process there already exists a system of human rights analysis for bills and other legislation introduced to either house. A ‘statement of compatibility with human rights’ within the explanatory memorandum is required for all bills introduced to parliament.[17] The Commission is of the opinion that a similar analysis should be included within the scope of each NIA. This analysis would consider the human rights implications of the treaty rather than, as is the case of a statement of compatibility, consideration of whether any limitation on human rights is according to law, necessary and proportionate to achieve a legitimate objective.[18]
     
  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.

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.

 

[1] Chart of the Status of National Institutions, International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC). At http://nhri.ohchr.org/EN/AboutUs/ICCAccreditation/Documents/Chart%20of%20the%20Status%20of%20NHRIs%20%2823%20May%202014%29.pdf (viewed 30 January 2015)
[2] Department of Foreign Affairs and Trade, Treaty making process. At http://www.dfat.gov.au/international-relations/treaties/treaty-making-process/Pages/treaty-making-process.aspx (viewed 23 February 2015).
[3] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976); Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 August 1981); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 12 October 1984, 1465 UNTS 85 (entered into force 16 June 1987); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969); Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into force 3 May 2008). At https://treaties.un.org/pages/Treaties.aspx?id=4&subid=A&lang=en (viewed 26 January 2015).
[4] Australia-US Free Trade Agreement (entered into force 1 January 2005) affected the Pharmaceutical Benefits Scheme which has an impact on the right to the enjoyment of the highest attainable standard of health (International Covenant on Economic, Social and Cultural Rights, 1975, art 12 and access to affordable medicines.. At http://www.austlii.edu.au/au/other/dfat/treaties/2005/1.html (viewed 17 February 2015).
[5] S Ariel Aaronson and JP Chauffou, ‘The Wedding of Trade and Human Rights: Marriage of Convenience or Permanent Match?’ (2011) World Trade Report 2011 Forums. At http://www.wto.org/english/res_e/publications_e/wtr11_forum_e/wtr11_15feb11_e.htm#fntext3 (viewed 23 February 2014).
[6] Aaronson and Chauffour provide examples from the United States , Chile, New Zealand, Canada, Australia, Southern Cone Common Market countries (Argentina, Brazil, Paraguay, Uruguay, Venezuela), Caribbean Common Market countries and the European Union. Other rights protected in Preferential Trade Agreements include the right to political participation, privacy rights, transparency, due process and labour rights.
[7] J Ruggie, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, UN Doc A/HRC/17/31 (2011), p 12. At http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/17/31&Lang=E (viewed 26 January 2015). http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf
[8] The term ‘concluding observations’ includes the term ‘concluding recommendations’. The latter term is used by the UN Committee on the Elimination of Discrimination Against Women.
[9] Minister for Foreign Affair and Attorney-General, Media Release - Government announces reform of treaty-making, 2 May 1996. At http://www.foreignminister.gov.au/releases/1996/fa29.html (viewed 9 February 2015)
[10] Department of Foreign Affairs and Trade, Tabling of Treaty Actions in Parliament. Available at http://www.dfat.gov.au/international-relations/treaties/treaty-making-process/Pages/tabling-of-treaty-actions-in-parliament.aspx (viewed 24 February 2015).
[11] Department of Foreign Affairs and Trade, Treaty making process. Available at http://www.dfat.gov.au/international-relations/treaties/treaty-making-process/Pages/treaty-making-process.aspx (viewed 24 February 2015).
[12] S Ariel Aaronson and JP Chauffou, ‘The Wedding of Trade and Human Rights: Marriage of Convenience or Permanent Match?’ (2011) World Trade Report 2011 Forums. At http://www.wto.org/english/res_e/publications_e/wtr11_forum_e/wtr11_15feb11_e.htm#fntext3 (viewed 23 February 2014).
[13] See for example, Free Trade Agreement between the Government of Australia and the Government of the Republic of Korea, (Seoul, 8 April 2014) – National Interest Analysis [2014] ANTIA 8. At http://www.austlii.edu.au/au/other/dfat/nia/2014/ (viewed 25 February 2016).
[14] See Endnote No. 3.
[15] United Nations Declaration on the Rights of Indigenous Peoples, GA Resolution 61/295, UN Doc A/61/L.67 (2007).
[16] Universal Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 (1948), para 71: The Universal Declaration of Human Rights is not a treaty, so it does not directly create legal obligations for countries. However, it is an expression of the fundamental values which are shared by all members of the international community. See https://www.humanrights.gov.au/publications/what-universal-declaration-human-rights (viewed 10 March 2015).
[17] Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) s 8. At http://www.comlaw.gov.au/Details/C2011A00186/Download (viewed 24 February 2015).
[18] Parliamentary Joint Committee on Human Rights, Guidance Note 1: Drafting statements of compatibility (December 2014). Available at http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Guidance_Notes_and_Resources (viewed 24 February 2015).
[19] Berne Declaration, Canadian Council for International Co-operation & Misereor,
Human Rights Impact Assessment for Trade and Investment Agreements. Report of the Expert
Seminar June 23-24, 2010, Geneva, Switzerland, p 24. At http://www.ccic.ca/what_we_do/Report_HRIA-seminar_2010_eng%5B1%5D.pdf (viewed 6 February 2015).
[20] Dr J Harrison, ‘Measuring Human Rights: Reflections on the Practice of Human Rights Impact Assessment and Lessons for the Future’ (2010), Warwick School of Law Research Paper No. 2010/26, p 6. At http://ssrn.com/abstract=1706742 (viewed 9 February 2015).
[21] J Ruggie, Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework, Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, UN Doc A/HRC/17/31 (2011), p 6. At http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/17/31&Lang=E (viewed 26 January 2015).
[22] O De Schutter, Addendum- Guiding principles on human rights impact assessments of trade and investment agreements, Report of the Special Rapporteur on the right to food, UN Doc A/HRC/19/59/Add.5 (2011), p 6. At http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-59-Add5_en.pdf (viewed 27 January 2015).
[23] O De Schutter, Addendum- Guiding principles on human rights impact assessments of trade and investment agreements, Report of the Special Rapporteur on the right to food, UN Doc A/HRC/19/59/Add.5 (2011), p 10. At http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-59-Add5_en.pdf (viewed 27 January 2015). The Report The United Nations report suggests this assessment should be completed by: the National institution for promotion of human rights or specific experts or a Parliamentary Committee that includes opposition political voices.
[24] Joint Standing Committee on Treaties, Role of the Committee. At http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/Role_of_the_Committee (viewed 24 February 2015).
[25] Joint Standing Committee on Treaties, Parliament of Australia, United Nations Convention on the Rights of Persons with Disabilities (New York, 13 December 2006), Report No 92 (2008). At http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=jsct/4june2008/report.htm (viewed 25 February 2015); Joint Standing Committee on Treaties, Parliament of Australia, Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 18 December 2002, Report No 125. At http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=jsct/28february2012/report.htm (viewed 25 February 2015).
[26] Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) s 7
[27] Convention on the Rights of Persons with Disabilities, 2007, art 35; International Covenant on Civil and Political Rights, 1966, art 4; International Covenant on Economic, Social and Cultural Rights , 1966, art 16; Convention on the Elimination of All Forms of Discrimination against Women, 1979, art 18; Convention on the Rights of the Child, 1989, art 44; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, art 19; International Convention on the Elimination of All Forms of Racial Discrimination, 1965, art 9. At https://treaties.un.org/pages/Treaties.aspx?id=4&subid=A&lang=en (viewed 6 February 2015).
[28] Attorney-General’s Department, Human rights treaty body reporting, http://www.ag.gov.au/RightsAndProtections/HumanRights/TreatyBodyReporting/Pages/default.aspx (viewed 6 February 2014)
[29] Office of the High Commissioner for Human Rights, Treaty body strengthening. At http://www.ohchr.org/EN/HRBodies/HRTD/Pages/TBStrengthening.aspx (viewed 25 February 2015).
[30] United Nations, United Nations reform: measures and proposals, Report by the United Nations High Commissioner for Human Rights on the strengthening of the human rights treaty bodies, UN Doc A/66/860 (2012), p 86. At http://www.ohchr.org/EN/HRBodies/HRTD/Pages/TBStrengthening.aspx (viewed 25 February 2016).
[31] As part of the reporting process, human rights treaty bodies 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 (viewed 24 February 2015).
[32] United Nations, United Nations reform: measures and proposals, Report by the United Nations High Commissioner for Human Rights on the strengthening of the human rights treaty bodies, UN Doc A/66/860 (2012), p 86. At http://www.ohchr.org/EN/HRBodies/HRTD/Pages/TBStrengthening.aspx (viewed 25 February 2016).
[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.