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Australian Year Book of International Law |
In a news release of 17 October 1996 the Minister for Foreign Affairs, Mr Alexander Downer issued a news release that:
… reaffirmed Australia’s policy of recognising the sovereignty and territorial integrity of the Republic of Cyprus. As called for in numerous United Nations Security Council resolutions, the Australian Government agrees that the State of Cyprus should comprise a bi-zonal, bi-communal federal Republic with one sovereignty, a single citizenship and one international personality.
On 21 May 1996, the Minister for Foreign Affairs, Mr Alexander Downer, in response to question without notice from Mrs Ricky Johnston, provided the House of Representatives with the following information concerning the recognition of Tibet and the status of the Dalai Lama (House of Representatives, Debates, 21 May 1996, p 928):
…the Australian government’s policy since 1972 on the recognition of the People’s Republic of China has implicitly recognised Tibet as part of the People’s Republic of China. Nevertheless, having said that, we recognise, as I guess the previous government did, the Dalai Lama as a spiritual and cultural leader, a figure of very great international significance and a person who has visited Australia on two previous occasions—once in 1982, during the time of the Fraser government, and on the second occasion in 1992.
…The Dalai Lama will be in Australia, I understand, between 14 and 29 September… I will be happy, naturally enough, to meet the Dalai Lama on either 14 or 15 September. I would say that in committing myself to meet the Dalai Lama—and I am sure others in the government will be happy to meet him as well—I am upholding a commitment that in opposition the now government made and am carrying on a precedent now of quite some years standing.
I recognise that the Chinese ambassador has made a public request that a member of the Australian government does not meet the Dalai Lama. But, at the end of the day, we make the judgments about the people we meet here in Australia; ambassadors do not make those judgments for us.
On 18 June, the Minister for Foreign Affairs, Mr Alexander Downer answered a question on notice from Mr Brereton, in the House of Representatives. The text of the question and answer follow (House of Representatives, Debates, 18 June 1996, p 2175):
Mr Brereton—Which countries and international organisations recognise the authorities on Taiwan as the “Republic of China”.
Mr Downer—The answer to the honourable member’s question is as follows:
Countries
According to information currently available, the thirty-one countries which recognise Taiwan as the “Republic of China” are: Bahamas; Belize; Burkino-Faso; Central African Republic; Commonwealth of Dominica; Costa Rica; Dominican Republic; El Salvador; Gambia; Grenada; Guatemala; Guinea-Bissau; Haiti; Holy See; Honduras; Liberia (claimed by both PRC and Taiwan); Malawi; Nauru; Nicaragua; Niger; Panama; Paraguay; Senegal; Solomon Islands; South Africa; St Christopher-Nevis; St Lucia; St Vincent and the Grenadines; Swaziland; Tonga; Tuvalu.International organisations
Australia is not currently a member of any international organisation which recognises Taiwan as the “Republic of China”. I am advised, however, that there are five organisations of which Taiwan is a member as the “Republic of China”. These are: Asian Productivity Organisation; Afro-Asian Rural Reconstruction Organisation; Food and Fertiliser Technology Centre for the Asian and Pacific Region; Central American Bank for Economic Integration; Asian Vegetable Research and Development Centre.
On 31 October 1996, the Minister for Foreign Affairs and Trade, Mr Alexander Downer, answered a question without notice from Mr Laurence Brereton in the House of Representatives. The text of the question and answer follow (House of Representatives, Debates, 31 October 1996, p 6298):
Mr Brereton—My question is directed to the Minister for Foreign Affairs. I refer the minister to the motion concerning the Nobel Peace Prize moved by Senator Bob Brown and agreed to by the Senate without dissent on 16 October. As the minister will recall, Senator Brown’s motion congratulated Bishop Carlos Belo and Mr Jose Ramos Horta on their unremitting work in support of independence for East Timor. Was it the assessment of your department that Senator Brown’s motion was consistent with government policy on East Timor and, accordingly, should be supported?
Mr Downer—The answer to the question is that the government decided the best way to handle the issue was not to vote against the motion but to have the Leader of the Government in the Senate make a statement at the time the motion was moved. As it turned out, for logistic reasons the statement was unfortunately made a little later in the day. But the government’s position was made perfectly clear in the statement that Senator Hill made.
This debate goes to the question of the use of the term ‘self-determination’. The term ‘self-determination’ was used by the previous government in its submission to the International Court of Justice, as the Deputy Leader of the Opposition will recall. In those circumstances, it was felt that one of the options available was not to oppose the motion—given that the word ‘self-determination’ had been used in the International Court of Justice—but to instead have Senator Hill make an appropriate statement, and that was done.
On 9 October 1996, in the House of Representatives the Deputy Prime Minister and Minister for Trade, Mr Tim Fischer answered a question on notice directed to the Minister for Foreign Affairs by Mr Harry Jenkins concerning recognition of the Former Yugoslav Republic of Macedonia. Text of the question and answer follow (House of Representatives, Debates, 9 October 1996, at p 5146):
Mr Jenkins—
What preconditions have been set by the Government for the full recognition of the Former Yugoslav Republic of Macedonia.1) Do those preconditions differ from those laid down by the previous Government; if so, (a) in what respect and (b) when were they announced.
Mr Fischer—The answer to the honourable member’s question is as follows:
1) On 15 February 1994, Australia recognised the Former Yugoslav Republic of Macedonia. On 23 October 1995, Australia and the Former Yugoslav Republic of Macedonia established diplomatic relations on the basis of non-resident accreditation. The following preconditions have been set out for operation of an Embassy of the Former Yugoslav Republic of Macedonia in Australia: that the Embassy describe itself appropriately (as the Embassy of the ‘Former Yugoslav Republic of Macedonia’, not as the ‘Republic of Macedonia’) and that no contentious flag or other symbol be displayed pending the final resolution of differences over nomenclature between the Governments of the Former Yugoslav Republic of Macedonia and of Greece, and the acceptance by the United Nations of the outcome of any such bilateral settlement.
2) No.
On 26 June 1996, the Minister for Trade, Mr Tim Fischer, in response to a question without notice from Mr John Forrest, provided the House of Representatives with the following information concerning the extraterritorial application of US laws (House of Representatives, Debates, 26 June 1996, p 2793):
… I advise the House that I am most concerned about the extraterritorial trend in US law making and its implication for Australian companies. This issue has arisen recently because of the Helms-Burton legislation, which provides for the imposition of penalties against foreign companies involved in commercial activities with Cuba, and a similar D’Amato legislation, which relates to Iran sanctions.
At this point, I am not aware that any Australian company has had to withdraw from operations in Cuba or Iran as a result of US extraterritorial legislation, but companies are continuing to follow developments closely. I am keen to ensure that the US understands our basic problems with this issue.
Extraterritorial measures are inconsistent with basic principles of international law. They seek to impose punitive measures on third-country investors and impinge on the sovereignty of other countries. Australia argues that the most effective way for the US to achieve foreign policy objectives is to work closely and cooperatively with its partners.
My colleague the Minister for Foreign Affairs and I during recent visits to Washington have expressed to senior representatives of the US administration and to Congress our opposition to such legislation. Additionally, we have outlined that to members of the G7, meeting later this month.
Indeed, there is widespread international concern about this trend in law making. For instance, the Cairns Group meeting, which I chaired in Colombia earlier this month, expressed its `strong concern about unilateral and extraterritorial actions which create dangerous precedent and potential threats to the multilateral trade and investment regime.’ Members can be assured, … that Australia will do all that it can to persuade the US authorities on this issue. …
On 20 August 1996, Senator Amanda Vanstone, the Minister representing the Attorney-General told the Senate that the government was proceeding with a scheme to allow for the transfer of prisoners between Australia and other countries and that the required legislation was being drafted. In addition the Senator noted (Senate, Debates, 20 August 1996, p 2711):
The legislation alone will not be sufficient to enable prisoners to be transferred between Australia and other countries. There must also be some form of agreement between Australia and the other country. To this end, the government intends to seek to become party to the Council of Europe Convention on the Transfer of Sentenced Persons, to participate in the Commonwealth Scheme for the Transfer of Convicted Offenders, and to negotiate bilateral treaties with particular countries as appropriate.
Some preliminary discussions have already taken place with Thai officials for this purpose. The conclusion of a prisoner transfer agreement with Thailand is a high priority because of the comparatively high number of Australian prisoners in Thai prisons. Any agreement reached with Thailand will not enter into force before Australia’s legislation (Commonwealth and state/territory) is in place.
On 24 October 1996, the Attorney-General, Mr Williams, issued a news release concerning the international transfer of prisoners. Extract of the release follow:
I will be strongly urging the States and Territories to endorse a legislative scheme for the international transfer of prisoners at the Standing Committee of Attorneys-General meeting in Canberra tomorrow.
The proposed legislation will allow Australians serving prison sentences overseas, and foreign nationals imprisoned in Australia, to return to their home countries to complete their sentences.
In light of the humanitarian, economic and social advantages of international prisoner transfer schemes, the Commonwealth has been working closely with the States and territories to develop legislation in this area. …
Before any prisoner transfers can take place, this legislation will have to pass through the Commonwealth and relevant State and Territory Parliaments. A number of administrative steps will also need to be taken, and transfer arrangements will have to be made with other countries.
I believe it is important to have the prisoner transfer scheme operating as quickly as possible. Apart from the domestic benefits of participating in such a scheme, there are also advantages at the international level.
On the following day, 25 October, in a further news release, the Attorney-General noted:
With the exception of the Northern Territory, State and Territory Attorneys-General have today endorsed draft legislation for the international transfer of prisoners.
I intend to introduce the Commonwealth legislation into Federal Parliament by the end of the 1996 sittings. I expect the States and Territories will enact their complementary legislation as soon as possible.
On 21 November 1996, the Attorney-General, Mr Daryl Williams, made the following comments in the course of the second reading speech to the House of Representatives for the International Transfer of Prisoners Bill 1996 (House of Representatives, Debates, 21 November 1996, p 7173):
This bill provides a framework for Australia to participate in the international transfer of prisoners. The purpose of the bill is to enable Australians imprisoned overseas and foreign nationals imprisoned in Australia to be returned to their home countries to complete the serving of their sentences. Increases in international air travel and criminal activity have resulted in a rise in the number of persons serving terms of imprisonment in foreign countries. Participation in international prisoner transfers is important for Australia for both domestic and international reasons.
There are sound humanitarian and rehabilitative grounds for international prisoner transfers. In addition, such transfers may result in practical benefits in terms of prison administration, as well as relieving some of the pressure on the consular services of Australian missions overseas. It is possible that Australian participation in international prisoner transfers may also result in financial savings for some participating states and territories if there is a net outflow of prisoners.
From the international perspective, a large number of countries are very supportive of prisoner transfer schemes. In recent years, there has been growing pressure for Australia to participate, and Australia has been approached by various countries about this matter. Accordingly, participation in prisoner transfers will enhance and supplement Australia’s relations with other countries.
Apart from providing a framework for general transfer of prisoners, the bill will also enable persons who have been convicted by certain international war crimes tribunals to be transferred to Australia to serve their sentences. As honourable members will be aware, two international war crimes tribunals were established in 1993 and 1994 by the United Nations Security Council to deal with war crimes committed in the former Yugoslavia and Rwanda.
The International War Crimes Tribunals Act 1995 enables Australia to assist and comply with requests from the tribunals, including the arrest and surrender of accused persons to the tribunals, and other assistance such as the taking of evidence in Australia for tribunal purposes. Persons convicted by the tribunals are to serve their sentences in countries designated by the tribunals from a list of countries which have indicated to the Security Council their willingness to accept such prisoners.
A number of countries have already agreed to accept tribunal prisoners, and the President of the Former Yugoslavia Tribunal has sought advice as to Australia’s willingness to do so. Australia’s acceptance of tribunal prisoners will be subject to the qualification that the prisoners have a connection with Australia. The provisions in the bill enabling transfers from the tribunals will complement the International War Crimes Tribunals Act 1995. State-territory cooperation
Clearly, there has been a need to consult closely with the states and territories in the development of this bill. These consultations have taken place through the Standing Committee of Attorneys-General. As there are no federal prisons, incoming prisoners will need to be housed by prisons controlled by those states and territories which are going to participate in the transfer scheme. Many of the prisoners who will seek to take advantage of the proposed scheme to leave Australia will be serving sentences for state or territory offences. The participating states and territories will need to enact complementary legislation.
Accordingly, the successful participation of Australia in international prisoner transfers will depend to a large measure on cooperation with the state and territory authorities. The states and territories are generally supportive of the scheme. At a recent Standing Committee of Attorneys-General meeting, the participating states and territories endorsed draft Commonwealth and model state-territory legislation. Details of bill
As to the detailed content of the bill, it contains separate provisions for the two different types of prisoners. Parts 3 and 4 deal with general prisoner transfers between Australia and other countries. Part 5 deals with transfers to Australia of tribunal prisoners. Parts 1, 2, 6 and 7 contain general provisions relating to both types of prisoners. The bill provides for all transfers to be considered on a case-by-case basis. General prisoner transfers
I now mention some of the important features of the provisions dealing with general prisoner transfers between Australia and other countries. The bill is drafted in such a way that the transfer scheme is able to apply to all offences without exception. It covers persons who have been convicted of a crime and sentenced to imprisonment or other deprivation of liberty, and includes persons confined in connection with criminal conduct by reason of mental disorder and persons who have been released on parole.
A significant requirement is that all transfers must be consensual, requiring the consent of the person to be transferred, the Australian government—Commonwealth and state-territory where relevant—and the government of the other country. The bill contains certain prerequisites which must be satisfied before transfers can take place. These include:• imprisonment under a final order, whereby neither the sentence of imprisonment nor the relevant conviction is subject to appeal;
• for transfers to Australia, the person is an Australian citizen or is permitted to travel to, enter and remain in Australia indefinitely pursuant to the Migration Act 1958 and has community ties with a state or territory;
• dual criminality, whereby the acts or omissions constituting the relevant offence would, if the acts or omissions had occurred in Australia or the other country as appropriate, have constituted an offence in that country; and
• at least six months of the sentence is remaining to be served.
In relation to these last two conditions, the Attorney-General has been given a discretion to waive these requirements in appropriate cases.
Transfers of tribunal prisoners
I now turn to the provisions dealing with transfers of prisoners from the international war crimes tribunals. There are some differences from the general prisoner transfer scheme. These differences take account of the different nature and objectives of the transfer of tribunal prisoners. The intention is that a tribunal prisoner would not be transferred to Australia unless he or she has some connection with Australia and the Australian government has consented to the transfer. The main differences in relation to tribunal prisoners are that consent from the tribunal prisoner is not a mandatory requirement, and there are no explicit citizenship or migration requirements. On this point, I wish to draw to honourable members’ attention that the bill provides that no decision affecting a person who is not an Australian citizen can be made unless the Minister for Immigration and Multicultural Affairs consents. Sentence enforcement
A central issue in international prisoner transfers is the question as to how sentences imposed in other countries or the tribunals will be enforced in Australia following transfer. Part 6 of the bill addresses this matter. The bill sets out two different methods for enforcement in Australia of a sentence of imprisonment imposed on a prisoner or tribunal prisoner by a court or tribunal of a transfer country or by a tribunal. These methods are consistent with those set out in the Council of Europe Convention on the Transfer of Sentenced Persons.
The bill provides that the Attorney-General may direct that the sentence of imprisonment be enforced on the transfer of the prisoner to Australia under the act: without any adaptation or with only such adaptation as is considered necessary to ensure consistency with Australian law—this is referred to as the continued enforcement method—or by substituting a different sentence, and this is referred to as the converted enforcement method.
While the bill provides for a choice between two different forms of sentence enforcement, the method actually adopted in a particular case will depend on the agreement with the country or the tribunal. For example, if a bilateral treaty with a particular country provides for only one method of sentence enforcement, that method would be used in relation to transfers from that country.
Subject to any agreement to the contrary, I would envisage that Australia would generally use the continued enforcement method. This would involve being bound, so far as possible, by the legal nature and duration of the sentence as determined by the other country, such that a prisoner would bring with him, or her, the sentence from the sending country, minus any time served or remissions earned in the sending country, up to the date of the transfer. The bill contains a discretion for the Attorney-General to make any necessary adaptations to the sentence, although this is subject to the limitation that the sentence to be enforced under either method must not be harsher than the sentence originally imposed. From the date of transfer, the sentence would be generally subject to Australia’s law concerning the enforcement of sentences.
The approach adopted in the bill is to treat all incoming prisoners as federal prisoners for administrative convenience and sentence enforcement purposes. It is important to remember that this is not intended to affect the agreed financial obligations as between the Commonwealth and the states and territories. The agreement reached in the Standing Committee of Attorneys-General is that the states and territories will pay the cost of maintaining incoming prisoners in prison—unless the prisoners have community ties with territories for which the Commonwealth is responsible. Application of the legislation and treaty negotiation
This legislation alone will not be sufficient to enable prisoners to be transferred to and from Australia. As I have already mentioned, complementary legislation will need to be enacted by the participating states and territories. In addition, a number of administrative steps will need to be taken—for example, the Standing Committee of Attorneys-General has agreed that it may be appropriate to have arrangements between the Commonwealth and the states and territories, defining the relationship between, and the responsibilities of, the Commonwealth and the states and territories in administering the scheme. The bill contains a provision enabling such arrangements to be made.
A further requirement is for transfer arrangements to be entered into with other countries. The basis of the bill is that prisoners—other than tribunal prisoners—can only be transferred between Australia and ‘transfer countries’. The bill contains a mechanism by which the act is to be applied to transfer countries. This involves the making of regulations, which may be based on treaty or non-treaty arrangements with other countries.
A number of countries have already concluded bilateral prisoner transfer treaties. I am advised that some 27 countries are parties to the Council of Europe Convention and that there are also six countries participating in the Commonwealth scheme for the transfer of convicted offenders.
Due to cost-effectiveness and scope, it is intended that Australia seek to become party to and implement existing multilateral arrangements such as the Council of Europe Convention and the Commonwealth scheme, and that bilateral treaties be negotiated only with countries which are not parties to a multilateral arrangement to which Australia becomes party, and/or whose preference is for a bilateral treaty or arrangement.
On 12 September 1996 Australia and Indonesia reached an agreement on the maritime boundaries between the two countries. In recognition of this, the Minister for Foreign Affairs, Mr Alexander Downer issued a news release on 13 September 1996 noting:
The agreement effectively finalises the maritime boundaries between Australia and Indonesia. …
Officials yesterday reached agreement on the three outstanding maritime boundary issues between the two countries. Over the past three years Australian and Indonesian officials have had six rounds of informal consultations on the boundaries which run from Christmas Island and Java in the West to the Gulf of Carpentaria in the East.
The specific boundaries are:• the water column and seabed boundary between Christmas Island and Java;
• the western extension of the seabed boundary between Australia and Indonesia from the point, just north of the Australian Territory of Ashmore and Cartier Islands, reached in the seabed boundary agreement between the two countries concluded in 1972;
• the final water column boundary between Australia and Indonesia.
The agreement will now be submitted to the Australian and Indonesian governments for formal approval. The two governments expect to sign a formal treaty in the near future, which will be scrutinised by Parliament in accordance with the new treaty procedures which the Government has introduced.
This is a truly historic development which highlights the importance this government attaches to its relations with Indonesia and exemplifies the way in which we are able to work together to resolve issues of common interest.
On 20 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer, in response to a question on notice from Mr Colin Hollis provided the House of Representatives with the following information concerning the UN Convention on the Law of the Sea (House of Representatives, Debates, 20 August 1996, p 3291):
Countries which have become signatories or parties to the United Nations Convention on the Law of the Sea, or to the Agreement relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea, since 20 September 1995 are set out in the tables below:UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (LOSC)
(Montego Bay, Jamaica, 10 December 1982)
Entry into force: 16 November 1994
Text: Australian Treaty Series 1994 No. 31
AGREEMENT RELATING TO THE IMPLEMENTATION OF PART XI OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA OF 10 DECEMBER 1982
(New York, 29 July 1994)
Provisional entry into force for Australia and generally: 16 November 1994
Text: Australian Treaty Series 1994 No. 32
On 20 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer, in response to a question on notice from Mr Laurence Brereton provided the following information to the House of Representatives concerning the International Maritime Organisation conventions and protocols to which Australia has not yet become a party (House of Representatives, Debates, 20 August 1996, p 3297):
Australia is not a party to the following International Maritime Organisation conventions and protocols:• Protocol of 1988 relating to the International Convention for the Safety of Life at Sea, 1974.
• Option Annex IV to the Protocol of 1978 relating to the International Convention for the Prevention of Pollution from Ships, 1973, as amended.
• Protocol of 1988 relating to the International Convention on Load Lines, 1966.
• Special Trade Passenger Ships Agreement, 1971.
• Protocol on Space Requirements for Special Trade Passenger Ships, 1973.
• Convention relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, 1971.
• Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974.
• Protocol of 1990 to amend the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea, 1974.
• Torremolinos Protocol of 1993 relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1977.
• The International COPAS-SARSAT Programme Agreement, 1988.
• International Convention on Salvage, 1989.
• 1978 (Disputes) Amendment to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, as amended.
Australia accepted the 1993 (Industrial Waste) Amendments to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 1972, as amended, with the following declaration deposited on 15 February 1994:
“Australia accepts the prohibition on the dumping of industrial wastes at sea as from 1 January 1966 as envisaged in resolution LC.49(16) for all types of industrial wastes as defined by the resolution with the exception of jarosite waste for which it is necessary, for technical reasons which will be elaborated at future meetings of the London Convention, to retain the option of dumping at sea for a short period after the expiration of the deadline set down in resolution LC.49(16). Under no circumstances will the dumping at sea of Jarosite be permitted by the Australian Government beyond 31 December 1997.”
On 18 November 1996, Mr Kerry Bartlett, on behalf of the Parliamentary Joint Standing Committee on Treaties, presented the committee’s report entitled Two International Agreements on Tuna—3rd report to the House of Representatives. Mr Bartlett provided the House with the following information (House of Representatives, Debates, 18 November 1996, p 6919):
…In 1979 a ‘Bilateral Agreement on Fisheries between the Government of Australia and the Government of Japan, Head Agreement’ was signed to facilitate close cooperation in the conservation and optimum utilisation of the living resources within Australia’s exclusive economic zone, EEZ. Under this agreement, annual subsidiary agreements permit Japanese long-line vessels to catch about 7,000 tonnes of fish within the EEZ. The Japanese vessels target a number of tuna species including yellowfin, bigeye and southern bluefin tuna.
Concerns over the depletion in the southern bluefin tuna, SBT, stock resulted in the establishment of the Convention for the Conservation of Southern Bluefin Tuna. Australia, New Zealand and Japan are parties to this convention which ensures, through appropriate management, the conservation and optimum utilisation of SBT. The Commission for the Conservation of Southern Bluefin Tuna meets annually to determine the global total allowable catch and national quota allocations for the SBT fishery.
The delays in setting recent quotas resulted from differences in opinion as to whether SBT stocks are recovering after a period of significant decline. Australia and New Zealand have opposed increasing the quotas, preferring the precautionary approach to managing stocks as required by the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks. Japan has excess capacity in its fishing fleet which could be utilised to catch additional SBT quotas. However, the committee supports the continuation of the cautious approach.
Last year the commission determined that the total allowable global catch of SBT was 11,750 tonnes. Since the introduction of national quotas Australia, New Zealand and Japan have been required to reduce their annual catch. However, when the Japanese quota was decreased, the catches of other nations then increased through reflagging or by way of Japanese-Korean company interactions. It was estimated that the catch by Korea, Indonesia and Taiwan, which are not party to the convention, was of the order of 3,200 tonnes.
The committee believes that the capacity to manage tuna stocks could be enhanced by the introduction of a certificate system which requires that all fish entering the market be identified to prevent fish caught by non-parties to the commission being accepted in the market. While there may be significant difficulties in introducing a certificate system, such a system could significantly improve the management capacity for the conservation of migratory species such as tunas.
The subsidiary agreements provide Japanese fishing vessels with access to Australian ports as well as fishing rights within the AFZ. This is linked to the commission in that it is Australia’s policy that the subsidiary agreements cannot be finalised until the SBT quotas are set.
The committee recommends the separation of port access and the subsidiary agreements as this arrangement is not commercially satisfactory. Although the committee appreciates that an open port access policy is unacceptable, it believes that the Commonwealth government should investigate other mechanisms for linking port access with Australia’s fisheries resource management objectives.
The committee suggests linking this with Japan’s participation in the Convention for the Conservation of Southern Bluefin Tuna—CCSBT. Under this arrangement, other countries cannot have access to Australian ports to facilitate their fishing activities. While this could be used to encourage countries such as Korea and Indonesia to join the convention, the wider implications will need to be addressed by the government.
It is imperative that Australia does not assist the capacity of other nations to fish in a manner which is detrimental to the long-term sustainability of some species. Japan has already cooperated in implementing a number of environmental measures requested by the Australian government and it would not be in the Australian fishing industry’s long-term interest to assist countries that have not given the same undertakings.
There are substantial mutual benefits to Australia and Japan in the subsidiary agreements. The subsidiary agreements provide the framework within which difficult decisions in relation to fisheries can be contained and managed without impacting adversely on the broader bilateral relationship…
To prevent the urgency provisions for tabling treaties from being invoked each year, the committee recommends that the agreements run for at least two years. The committee also believes that the current process may need to be revised to ensure that the delays experienced in signing last year’s agreement do not become an annual event.
Strong evidence to the inquiry supported the concept of the subsidiary agreement, with a number of submissions and witnesses requesting amendments or a gradual phasing out of Japanese access with progressive Australianisation.
A number of witnesses requested additional fishing exclusion zones to facilitate local industry development. The committee supports this principle and believes that these changes should be implemented where Australian fishermen can demonstrate they have the capacity to utilise the resources in that area.
In particular, the committee now supports the extension of the exclusion zone around Tasmania to 50 nautical miles. While the committee accepts that the Tasmanian fishing fleet may not yet have the capacity to fully utilise the tuna stocks in that region, the Australian fishing fleet does have that capacity.
The committee is also concerned that a number of prime pelagic species are not included in subsidiary agreements. In some cases there is inadequate knowledge on the sustainability of tuna, billfish and swordfish species. The committee commends the research already in progress and supports a cautious approach in managing these stocks.
In relation to environmental measures, the committee heard a number of concerns in relation to the bycatch of sharks, marlin and swordfish in SBT long-line operations. There is also a number of issues in relation to the administrative and legislative aspects of implementing conservation measures that need to be addressed. …
The committee was provided with a number of conflicting views on the benefits and disadvantages of the bilateral arrangements. The committee believes that a full cost-benefit analysis should be undertaken to determine the true benefit of these agreements to both countries. SBT is a global fishery and requires continued cooperation to enhance its commercial benefits in a sustainable way and to protect endangered species.
The second agreement to be considered in this report is the agreement for the establishment of the Indian Ocean Tuna Commission, the IOTC. The formation of this commission continues the trend to form international management regimes for highly migratory tuna species in light of their vulnerability to fishing on the high seas. The IOTC will act as a regional fisheries management organisation for major international tuna fisheries for yellowfin, skipjack, bigeye, albacore and SBT. Membership is available to Indian Ocean rim countries and countries that fish in the Indian Ocean.
While Australia will request that the IOTC recognise the competence of the CCSBT, there will be continuing pressure for the IOTC to play a role in the management of activities which will impact on SBT and other tuna stocks. Further, countries which do not currently belong to the CCSBT but have significant SBT catches may become members of the IOTC.
The committee believes that Australia should become a party to the IOTC and that an instrument of acceptance be deposited on or before 2 December 1996. The committee also notes Western Australia’s particular interest in the activities of the IOTC. It believes there is the capacity to have greater participation by the states and territories in the treaty process where the issues involved will significantly impact on the economy of those states. The committee therefore recommends that representatives from Western Australia be given the opportunity to participate in the delegation to, and consultations relevant to, the activities of the IOTC.
On 28 November 1996, the Minister for Resources and Energy, Senator Warwick Parer, in response to a question without notice from Senator William O’Chee provided the following information to the Senate concerning the Indian Ocean Tuna Commission (Senate, Debates, 28 November 1996, p 6257):
…I am pleased to advise the Senate that Australia has joined the Indian Ocean Tuna Commission and we will be sending a delegation to the commission’s first meeting in December. The IOTC is a multilateral organisation established under the United Nations Convention on the Law of the Sea and the role of the commission is to promote cooperation between its member states on the management of the region’s tuna and billfish.
A large number of Indian Ocean fishery countries are expected to be represented in the commission, including India, Japan, Sri Lanka and the United Kingdom. There are a number of major fishery resources in the Indian Ocean. These include: yellowfin, skipjack, bigeye, albacore and southern bluefin tuna.
Senators will be aware that Australia has a strong interest in these resources, particularly the southern bluefin tuna fishery. We are already managing southern bluefin tuna through the Commission for the Conservation of the Southern Bluefin Tuna. The IOTC is obliged to cooperate with the southern bluefin tuna commission. However, it is not impossible that it will seek to have a role in managing the fishery. It is important we join the IOTC to protect the hard work and sacrifices that Australia, New Zealand and Japan have put into managing southern bluefin tuna.
Australia also has an interest in the other fisheries that will be covered by the Indian Ocean Tuna Commission. Domestic tuna fishing takes place off western and southern Australia. In addition, charter and recreational fishing occurs along our western and southern seaboards for marlin, sailfish and tuna. All of these species are covered by the IOTC agreement. We will be urging the other countries to the commission to adopt sound, scientifically based approaches to establish the catch levels for the fishery resources in the Indian Ocean. We will also be urging the members of the commission to adopt sound environmental practices such as measures to reduce the level of bycatch of albatross and other sea birds. Long-line fishing is the greatest threat to the albatross. Our work in the IOTC will complement my colleague Senator Hill’s proposal to list 11 albatross species under the Bonn convention and the work we are putting in to develop a threat abatement plan. …
On 18 June 1996, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Laurence Brereton in the House of Representatives. The text of the question and answer follow (House of Representatives, Debates, 18 June 1996, p 2174):
Mr Brereton—To which International Civil Aviation Organisation conventions and protocols has Australia not yet become a party
Mr Downer—The answer to the honourable member’s question is as follows:
Australia is not a party to the following International Civil Aviation Organisation conventions and protocols:1. International Air Transport (Five Freedoms) Agreement, done at Chicago on 7 December 1944.
2. Protocol relating to an amendment introducing Article 93 bis (termination of membership) to the Convention on International Civil Aviation of 7 December 1944 (the Chicago Convention), done at Montreal on 27 May 1947.
3. Convention on the International Recognition of Rights in Aircraft, done at Geneva on 19 June 1948.
4. Protocol to Amend the Convention on Damage caused by Foreign Aircraft to Third Parties on the Surface of 7 October 1952 (the Rome Convention), done at Montreal on 23 September 1978.
5. Convention on the Marking of Plastic Explosives for the Purpose of Detection (the MARPLEX Convention), done at Montreal on 1 March 1991.
6. Protocol on the Authentic Quinquelingual Text of the Convention on International Civil Aviation (relating to the Arabic text of the Chicago Convention), done at Montreal on 29 September 1995.
7. Protocol relating to an amendment to the Convention on International Civil Aviation (relating to the Arabic text of the Chicago Convention), done at Montreal on 29 September 1995.
In addition, Australia has not ratified the following protocols of the Warsaw System relating to the liability of air carriers engaged in international carriage of passengers, baggage and cargo:1. Protocol to amend the Convention for the Unification of Certain Rules relating to International Carriage by Air signed at Warsaw on 12 October 1929 (the Warsaw Convention) as Amended by Protocol done at The Hague on 28 September 1955, done at Guatemala City on 8 March 1971.
2. Additional Protocol No. 1 to Amend the Warsaw Convention of 12 October 1929, done at Montreal on 25 September 1975.
3. Additional Protocol No. 2 to Amend the Warsaw Convention of 12 October 1929 as Amended by the Protocol done at The Hague on 28 September 1955, done at Montreal on 25 September 1975.
4. Additional Protocol No. 3 to Amend the Warsaw Convention of 12 October 1929 as Amended by the Protocols done at The Hague on 28 September 1955 and at Guatemala City on 8 March 1971, done at Montreal on 25 September 1975.
5. Montreal Protocol No. 4 to Amend the Warsaw Convention of 12 October 1929 as Amended by the Protocols done at The Hague on 28 September, done at Montreal on 25 September 1975.
On 9 September 1996, the Attorney-General, Mr Daryl Williams, in response to a question on notice, provided the House of Representatives with the following information concerning the 1975 Convention on the Settlement of Investment Disputes between States and Nationals of those States (House of Representatives, Debates, 9 September 1996, p 3797):
… The Attorney-General’s Department has corresponded with the International Centre for Settlement of Investment Disputes (ICSID) which has provided the Department with a list of contracting states and signatories of the Convention as at 8 April 1996. The list of the 139 parties to the Convention, together with the date of entry into force for each country, is set out below.
Since my predecessor’s answer to question No. 2645 (Hansard, 30 November 1995, page 4505) advice has been received that the Convention has been signed by Guatemala and the Republic of Kyrgyz; ratified and entered into force in Algeria; and signed, ratified and entered into force in the Bahamas, Bahrain and Panama.LIST OF CONTRACTING STATES AND OTHER SIGNATORIES OF THE CONVENTION ON THE SETTLEMENT OF INVESTMENT DISPUTES BETWEEN STATES AND NATIONALS OF OTHER STATES
(ICSID)
(as at 8 April 1996).
The 139 States listed below have signed the Convention on the Settlement of Investment Disputes between States and Nationals of other States on the dates indicated. Of these, 126 States have deposited their instruments of ratification, and the dates of such deposit and of the attainment of the status of Contracting State by the entry into force of the Convention for each of them are indicated.
On 4 December 1996, Mr Peter McGauran, Minister for Science and Technology, on behalf of the Minister for Industry, Science and Tourism made the following comments in the course of the second reading speech to the House of Representatives for the Trans-Tasman Mutual Recognition Bill 1996 (House of Representatives, Debates, 4 December 1996, p 7624):
The purpose of the Trans-Tasman Mutual Recognition Bill is to establish a scheme for the mutual recognition of regulatory standards for goods and occupations adopted in Australia and New Zealand. The principal aim of mutual recognition is to remove impediments to trans-Tasman trade in goods and the mobility of labour caused by regulatory differences among Australian jurisdictions and New Zealand.
The bill implements the trans-Tasman mutual recognition arrangement, which was signed by the Prime Minister (Mr Howard), premiers and chief ministers at the meeting of the Council of Australian Governments held on 14 June 1996. The arrangement was subsequently signed by the Prime Minister of New Zealand on 9 July 1996.
The arrangement is consistent with the government’s election commitment to reduce the regulatory burden and compliance costs faced by business and to establish a protocol for the reciprocal recognition of professionals’ standing in order to promote the objectives of the closer economic relations trade agreement with New Zealand. …
The proposed scheme is based on the framework of the existing Australian mutual recognition agreement, signed by Australian heads of government in May 1992. Legislation implementing the agreement has been proclaimed by the Commonwealth and all states and territories. The Commonwealth legislation, the Mutual Recognition Act 1992, commenced in 1993. …
At the time of signing the domestic Australian mutual recognition agreement, Australian heads of government agreed to review in due course with New Zealand the potential benefits of participation by New Zealand in a scheme implementing mutual recognition principles. Australian and New Zealand ministers subsequently agreed that the framework for mutual recognition reflected in the Australian Mutual Recognition Act 1992 should be the basis for a scheme implementing mutual recognition principles in New Zealand and Australian jurisdictions, with necessary changes to reflect the trans-Tasman nature of the scheme.
The trans-Tasman mutual recognition arrangement was finalised after the release of a discussion paper in April 1995 by the Council of Australian Governments and the government of New Zealand. Input was sought from industry, standards setting bodies and the professions, and approximately 142 written submissions were received. The comments received during the consultation process have been taken into account in deciding upon the final lists of exemptions and exclusions from the scheme. Principles
The trans-Tasman mutual recognition arrangement is a non-treaty instrument which requests and empowers the Commonwealth to pass an act to give effect to two simple principles of mutual recognition. The first is that a person registered to practise an occupation in Australia can seek automatic registration to practise an equivalent occupation in New Zealand and vice versa. A person will only need to give notice, including evidence of home registration, to the relevant registration authority in the other jurisdiction to be entitled immediately to commence practice in an equivalent occupation in that jurisdiction.
However, I stress that a person will only be entitled to practise an equivalent occupation. Equivalence means that the activities carried out by practitioners registered in each country must be substantially the same. This will be the case in most instances. However, if significant differences do exist between occupations, a registration authority may impose conditions on a person’s registration in order to achieve equivalence.
In essence, the scheme creates a situation similar to the regime in Australia for drivers licences, whereby individuals do not have to re-sit a driving test when they move from one state to another. It will apply to all registered occupations in Australia and New Zealand with the exception of medical practitioners.
The second principle is that a good that can be legally sold in a participating Australian jurisdiction can be sold in New Zealand and vice versa, as long as it meets the regulatory requirements for sale in the jurisdiction in which it was manufactured or first imported. This means that goods which can be sold lawfully in one jurisdiction may be sold freely in another, even though the goods may not comply with all the details of regulatory standards in the second jurisdiction.
Under mutual recognition, producers in Australia will have to ensure that their products comply with the laws only in the place of production. If they do so, they will then be free to distribute and sell their products in New Zealand without being subjected to further testing or assessment of their product. Implementation mechanism
The Commonwealth bill forms part of a larger legislative scheme that involves the enactment of bills by the states, the Commonwealth and New Zealand. The larger legislative scheme has an Australian component and a New Zealand component. The Trans-Tasman Mutual Recognition Bill 1996 of New Zealand is concerned with the New Zealand component of the legislative scheme. That bill was introduced into the parliament of New Zealand on 18 July 1996. However, passage has been delayed by the New Zealand election…
The mechanism for implementing the Australian component of the scheme is similar to that used to implement the Australian mutual recognition scheme. To come into effect, the scheme requires at least one state to enact legislation referring the enactment of a Mutual Recognition Act to the Commonwealth parliament.
New South Wales has agreed to do so, and the Trans-Tasman Mutual Recognition (New South Wales) Bill 1996 was passed by the New South Wales Parliament on 19 November 1996. The New South Wales Bill refers to the Commonwealth parliament, using the mechanism provided by Section 51 (xxxvii) of the Commonwealth constitution, the power to enact an act in the terms, or substantially in the terms, set out in the schedule to that bill.
The additional powers of the Commonwealth will be limited. The states and territories are not granting extensive new powers to the Commonwealth to regulate goods and occupations. Rather, the Commonwealth is being empowered, to the extent to which such powers are not otherwise included in its legislative powers, to pass a single piece of legislation that will prevail over inconsistent state and territory legislation.
Amendments to the Commonwealth act will require the unanimous agreement of participating Australian jurisdictions. The Commonwealth act will provide a comprehensive scheme for mutual recognition which will operate independently of other state laws and, therefore, will not require modification of those laws to enable its implementation. This is achieved through section 109 of the Commonwealth constitution, which provides that a Commonwealth act prevails over a state act to the extent of any inconsistency. The legislation will apply to all states that refer power to enact the Commonwealth act or request enactment of it, or adopt the Commonwealth act afterwards under section 51 (xxxvii) of the Commonwealth constitution. Operation of the scheme
The focus of mutual recognition is on the regulation of goods at the point of sale and on entry by registered persons into equivalent occupations in another participating jurisdiction. Mutual recognition will not affect the ability of jurisdictions to regulate the operation of businesses or the conduct of persons registered in an occupation. It is also important to note that laws that regulate the manner in which goods are sold, such as laws restricting the sale of certain goods to minors, or the manner in which sellers conduct their businesses are explicitly exempted from mutual recognition.
Moreover, the scheme will not affect laws relating to quarantine, endangered species, firearms and other prohibited or offensive weapons, fireworks, indecent material, ozone protection, agricultural and veterinary chemicals, and gaming machines. Nor will the scheme affect Australia’s or New Zealand’s international obligations, intellectual property laws, customs laws, taxation laws or tariffs.
The scheme incorporates a temporary exemption mechanism, giving participating jurisdictions the right to ban unilaterally, for a total of 12 months, the sale of goods in their jurisdiction in the interests of protecting the health and safety of persons or preventing, minimising or regulating environmental pollution. Before the temporary exemption expires, the ministerial council responsible for the affected good is required to determine whether a particular standard should apply to the good and, if so, the appropriate standard. A ministerial council determination can include whether to prohibit the sale of the good in question and requires the endorsement of heads of government.
The scheme will also set in train so-called cooperation programs in a number of industry sectors. These will relate to therapeutic goods; hazardous substances, industrial chemicals and dangerous goods; road vehicles; electromagnetic compatibility and radio communications equipment; and gas appliance standards. Regulatory authorities in these areas will consider whether existing regulatory differences would be best addressed by either applying the mutual recognition principle to the affected goods, permanently exempting the goods from the operation of the scheme, or introducing harmonised standards for such goods.
For occupations, the legislation is expressed to apply to individuals and occupations carried on by them. Registered practitioners wishing to practise in another jurisdiction will be able to notify the local registration authority of their intention to seek registration in an equivalent occupation there and provide the required evidence. The local registration authority then has one month to process the application and to make a decision on whether or not to grant registration. Pending registration, the practitioner is entitled, once the notice is made and all necessary information provided, to commence practice immediately in that occupation, subject to the payment of fees and compliance with various indemnity or insurance requirements in relation to that occupation.
To avoid costly and lengthy appeals processes in the courts, the Commonwealth Administrative Appeals Tribunal will hear appeals against decisions of Australian registration authorities, and a newly-created New Zealand tribunal will hear appeals against decisions of New Zealand registration authorities. The tribunals are required to cooperate to the maximum extent possible so as to ensure consistency in their determinations…
On 4 December 1996, the Minister for Foreign Affairs, Mr Alexander Downer, provided the following information concerning the negotiation of a framework agreement with the European Union (House of Representatives, Debates, 4 December 1996, p 7672):
… we have been discussing, as was the previous government, with the European Commission the possibility of signing a framework agreement for cooperation between Australia and the European Community.
We had hoped to conclude this agreement by the end of this year, but there still remain three outstanding issues. The first relates to the article on agriculture, which obviously is a matter of fundamental importance to us in our dealings with the European Union. The commission have put forward words that we still would wish to see changed. For example, they have not agreed to Australia’s market access proposals. The European Commission proposal on geographical indicators of traditional origin goes much further than our World Trade Organisation obligations and would impose an extra burden on Australian producers. So we are working to have that article changed.
Secondly, there is a proposal in the draft text put forward by the European Commission on government procurement. The Australian government is unable to commit itself to the proposal of the commission as it relates to the constitutional power of the states, and so we have made that perfectly clear. Thirdly, there has been, and still remains, disagreement between the Australian government and the European Commission on the proposed articles on human rights. …
This proposed article allows the European Commission to suspend unilaterally the framework agreement between Australia and the European Commission if they happen to object to any subjectively defined human rights policies of the Australian government. A human rights article of that kind does not belong to a trade and economic cooperation agreement. I discussed this matter on the telephone with Sir Leon Brittan last week when I was in Manila. I have also discussed it—since he is present in the House today—with Ambassador O’Brien of Ireland. These are differences. We have made our position absolutely clear. I will be discussing these matters further with Sir Leon Brittan when I am in Brussels at the end of January.
As far as the human rights issue is concerned, this has nothing to do with the Australian government’s commitment to human rights…
This is not the view alone of the Australian government; this is also the view of the New Zealand government. And we have been speaking closely with the New Zealand government about this matter. It is utterly fatuous for the Labor Party or anybody else to suggest that Australia is not committed to the Universal Declaration of Human Rights—of course we are. Indeed, let this be understood for the record: the Australian government has proposed the inclusion of human rights in a second document with the EU—the political declaration currently sitting before the Irish presidency. Of course we do cooperate with the European Union and the commission on human rights questions.
On 12 December 1996 a bilateral agreement on Economic and Commercial Cooperation was initialled, and a bilateral Memorandum of Understanding on Friendship and Cooperation signed with the Republic of Kazakstan. In a news release issued on the same day, the Minister for Foreign Affairs, Mr Alexander Downer noted:
The agreement on Economic and Commercial Cooperation is designed to increase mutually beneficial cooperation in economic relations with Kazakstan, particularly in the mining, telecommunications, agriculture and training sectors. The agreement will also facilitate the entry of Australian companies into the Kazakstan market. The Memorandum of Understanding on Friendship and Co-operation signed today provides a basis for the further development of relations between Australia and Kazakstan by establishing a dialogue on matters of bilateral, regional and multilateral importance, including trade and security issues.
On 20 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer answered a question on notice concerning the International Convention on the Elimination of all forms of Racial Discrimination from Mr Laurence Brereton in the House of Representatives. Text of the question and answer follow (House of Representatives, Debates, 20 August 1996, p 3292):
Mr Brereton—1) How many countries have become parties to the UN 1965 International Convention on the Elimination of All Forms of Racial Discrimination.
2) Which countries in and around the Indian and Pacific Oceans have not become parties to the convention.
Mr Downer—The answer to the honourable member’s question is as follows:
1) 146.
2) Countries in and around the Indian and Pacific Oceans which have not become parties to the Convention include Burma, Indonesia, Kenya, Kiribati, the Republic of the Marshall Islands, the Federated States of Micronesia, Nauru, Niue, Oman, Palau, South Africa, Thailand, Vanuatu and Western Samoa. The table below shows all parties to the Convention.
INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION
(New York, 7 March 1966).
Entry into force generally: 4 January 1969, in accordance with article 19.1
Entry into force for Australia: 30 October 1975
Text: Australian Treaty Series 1975 No 40 United Nations Treaty Series, vol. 660, p 195.
Status: Signatories: 76. Parties: 146
On 7 November 1996, the Australian Parliamentary delegate to the United Nations, the Member for Bendigo, Mr Bruce Reid presented the Australian Government’s Annual Statement on Racism to the UN General Assembly. Extracts of the text of the statement follow:
Equality of all persons and their right to enjoy equal protection and status before the law is a fundamental and well established human rights principle. In this respect, the international norms established since 1945 against racial discrimination are but one facet of the wider attempt by the international community to embody, in concrete form, one of the basic philosophical underpinnings of the contemporary law and practice of human rights—the principle of equality of all persons, irrespective of race, sex, colour or ethnic origin. It is a principle found in the French Declaration of 1789, and is quoted several times in the UN Charter, Articles 1, 3 and 7 of the Universal Declaration, Common Article 2 of the two Covenants, Article 26 of the International Covenant on Civil and Political Rights and in both the European and the American Conventions.
Racism, in all its forms, constitutes a serious assault on human dignity and security. Consequently, it remains a major source of conflict and poses a continuing threat to peace and stability throughout the developed and developing parts of the world.
On a global and regional level, Australia remains committed to the work of the United Nations. At a national level, Australia has a particular interest in combating racism and its effects on Australia’s indigenous peoples and the multicultural population.
The United Nations has played a crucial role in combating racism through its standard-setting, monitoring, educational and technical assistance activities. It is pleasing to note that there are now 143 states parties to the Convention on the Elimination of Racial Discrimination. Australia urges those countries who have not yet ratified the Convention to do so.
The Australian Government has made clear on many occasions its unequivocal rejection and condemnation of racial intolerance and prejudice and its unequivocal commitment to maintaining Australia’s non-discriminatory immigration programme.
Last week a motion on “Racial Tolerance and Immigration” was moved by the Prime Minister and seconded by the Leader of the Opposition and passed with bipartisan support in the Australian House of Representatives. As the Australian Minister for Foreign Affairs Mr Downer has said of Australia’s support for an absolutely non-discriminatory immigration policy and society free of racism—“This commitment is rock solid”.This motion:
• Reaffirms the Parliament’s commitment to the rights of all Australians to enjoy equal rights and be treated with equal respect, regardless of race, colour, creed or origin;
• Reaffirms the Parliament’s commitment to maintaining an immigration policy wholly non-discriminatory on grounds of race, colour, creed or origin;
• Reaffirms the Parliament’s commitment to the process of reconciliation with Aboriginal and Torres Strait Islander people, in the context of redressing their profound social and economic disadvantage;
• Reaffirms the Parliament’s commitment to maintaining Australia as a culturally diverse, tolerant and open society, united by an over-riding commitment to our nation, and its democratic institutions and values;
• Denounces racial intolerance in any form as incompatible with the kind of society we are and want to be.
Australia values the important contribution that immigrants from all over the world have made to Australia’s social, cultural and economic development. Specifically, the Australian Government is on record in recognising and welcoming the valuable contribution that Australians of all ethnic backgrounds have made to Australia and their right, like all Australians, to be treated with decency and respect.
Australia has a profound commitment to fair treatment for all and a harmonious blending together of people of different racial backgrounds. Australia has pioneered liberal reforms in many areas and its record of achievement in integration into a very harmonious and united people from all parts of the world is something of which all Australians can be immensely proud.
Australia denounces racial intolerance in any form. This is an absolute commitment of the leading political parties in Australia. The Australian Government reaffirms its commitment to the process of reconciliation with Aboriginal people and Torres Strait Islanders, and will continue to redress their profound social and economic disadvantage. Australia is faced with many challenges in ensuring that the human rights of individual indigenous Australians are fully protected and that their collective rights are implemented and respected. This is a challenge that Australia must meet and which we are addressing seriously and conscientiously.
One of the most significant steps in addressing the rights of indigenous Australians was instituted following a decision in the High Court on Native Title. The Australian Parliament passed the Native Title Act in 1993 to give effect to the High Court’s decision in the Mabo case which rejected once and for all the legal fiction of terra nullius. The Native Title Act 1993 gives unambiguous recognition and protection to Native Title in Australia where it continues to exist. The validity of the legislation was upheld unanimously by the High Court of Australia. All Australian States and Territories have now enacted complementary legislation within the framework established by the Commonwealth Native Title Act.
The Australian Government is currently reviewing the Native Title Act to ensure that it meets the needs of both indigenous and non-indigenous Australians. The Australian Government is also committed to the process of implementing the recommendations of the Royal Commission into Aboriginal Deaths in Custody. A ministerial summit will be held in 1997. The purpose of this summit will be to renew commitment by all Australian governments to reducing both indigenous deaths in custody and incarceration rates.
Australia has begun an evaluation and review of the Racial Discrimination Act to ensure that the Act addresses systemic discrimination, enhances dispute resolution and is more accessible and effective. This review is timely given the social, political and demographic changes in Australia over the past twenty years.
In closing I would like once again to turn to the fundamental purpose for which we are gathered here and to the vision set out in the Charter of the United Nations: A world where human rights and fundamental freedoms exist for all “without distinction as to race, sex, language and religion”. The challenge for Governments and peoples worldwide is to make that aspiration a reality.
On 10 April 1996, in Geneva, a statement was made on behalf of the Australian delegation to the Fifty-Second Session of the Commission on Human Rights. The following is an edited extract of the statement concerning indigenous issues:
Australia strongly supports the international decade of the world’s indigenous people as a framework for action at international and national levels to promote the rights of indigenous peoples and to address issues of central concern to them. …
Australia is committed to working with the United Nations and in partnership with indigenous peoples to promote successful outcomes for the decade. The success of the decade will depend on effective planning and co-ordination. The High Commissioner for Human Rights has an important role to play in this regard. As the co-ordinator of the decade, the Assistant Secretary-General for Human Rights and the Centre for Human Rights also have key roles. They must be given the necessary human as well as financial and material resources to fulfil their responsibilities. The establishment of an adequately staffed unit in the Centre for Human Rights to plan, co-ordinate and implement activities during the decade is an urgent priority.
The United Nations specialised agencies, functional commissions and other UN organisations also have vital contributions to make. More needs to be done to encourage agencies to address the concerns of indigenous peoples in their programs and to establish focal points and networks to facilitate co-ordination within the UN system and with indigenous groups. There needs to be co-ordinated follow-up to implement the recommendations of recent world conferences pertaining to indigenous peoples of recent world conferences.
A major objective of the decade is the adoption by the General Assembly of a declaration on the rights of indigenous peoples. The Australian Government and Australia’s indigenous peoples are committed to working towards that goal. Australia welcomes the success of the first meeting last November of the working group of the commission on human rights to elaborate a draft declaration. Australia also welcomed the participation of a broad range of organisations of indigenous people in that meeting. Maximum participation by indigenous groups is essential for the credibility of the working group. Australia hopes that outstanding applications from indigenous organisations to join the process will be approved as soon as possible.
The question of a permanent forum in the United Nations system for consideration of indigenous peoples issues is another important issue for the decade. Australia welcomed the workshop on this subject held in Copenhagen in June 1995 and is keen to support continued discussion, including through a second workshop. Pending the establishment of a permanent forum, Australia will continue to support the efforts of Australian and other indigenous peoples to achieve appropriate recognition in international forums generally.
At the national level, a vital ingredient for the success of the decade will be the establishment of appropriate mechanisms to ensure full consultation and co-operation between governments and indigenous groups in planning and implementing decade activities. Such mechanisms would be a practical expression of the concept of partnership which is at the heart of the decade and would help to ensure that the aspirations and concerns of indigenous peoples are taken fully into account by governments in developing legislation and programs affecting them.
The Aboriginal and Torres Strait Islander Commission (ATSIC), Australia’s national indigenous peoples organisation, has the responsibility for co-ordinating, planning and implementing decade activities. A national indigenous advisory committee has been established to assist ATSIC in the coordination and planning of the decade.
The committee has agreed that decade activities need to maintain both a national and an international focus, and has identified a range of activities and issues for consideration in a national decade action plan. The committee supports the development of national promotional and education material on the United Nations draft declaration on the rights of indigenous peoples and its distribution to indigenous communities and peoples throughout Australia.
On 20 August 1996, the Minister for Aboriginal and Torres Strait Islander Affairs, Senator John Herron, answered a question on notice from Senator Margaret Reynolds. The text of the question and answer follow (Senate, Debates, 20 August 1996, p 2712):
Senator Reynolds—1) Is the Government continuing to pursue support for the Convention on the Rights of Indigenous People.
2) What is the Government’s understanding of its obligations under section 8, Article 27 of the United Nations Covenant on Civil and Political Rights to Australian Indigenous People as a consequence of Australian ratification.
3) What is the Government’s position on ratification of International Labour Organisation Convention No. 169 detailing the rights of Indigenous people.
4) What is the Government’s position on self-determination.
Senator Herron—
1) There is no Convention of that name or currently being drafted in the UN system. The Government is currently considering its negotiating position in relation to the UN draft Declaration on the Rights of Indigenous Peoples, which is an instrument of non-treaty status.
2) In accordance with Senate Standing Order No. 73, it would not be appropriate to provide an answer to this question at this stage as it would involve giving a legal opinion.
3) A decision has not yet been made as to whether ILO Convention No.169, The Indigenous and Tribal Peoples Convention, 1989 is an appropriate target for ratification by Australia. A process of consultation is underway involving government agencies, the States and Territories, the ACCI and the ACTU and indigenous peoples organisations. A draft Commonwealth law and practice report has been prepared and circulated to the States and Territories for comments as to compliance with the Convention of the laws in their jurisdictions.
4) The question of self-determination is currently under consideration in relation to the draft Declaration on the Rights of Indigenous Peoples, and will form part of the Government’s negotiating position on the Declaration.
On 28 March 1996, in Geneva, a statement was made on behalf of the Australian delegation to the Fifty-Second Session of the Commission on Human Rights. The following is an extract of the statement concerning the hierarchy of human rights:
... We reject any notion of a hierarchy of rights, or the suggestion that any one group of human rights can be subordinated to another. Our commitment to this as a matter of principle is also based on empirical evidence which has shown time and again that stable, prosperous and creative societies depend on the realisation of all human rights. …
On 28 March 1996, in Geneva, a statement was made on behalf of the Australian delegation to the Fifty-Second Session of the Commission on Human Rights. The following is an extract of the statement concerning the right to development:
… I turn now to the right to development which is one of the most important items on the agenda of the Commission. The declaration on the right to development aimed at closing the split caused by the formation of the two separate human rights instruments in 1966: The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It explicitly recognises the fact that as all human rights and fundamental freedoms are indivisible and interdependent, equal attention and consideration should be given to the promotion, protection and implementation of all human rights. While the concept of the right to development has generated debate as to its status and scope, a consensus was reached in Vienna on the principles embodied in the right to development and the concept has been progressively enhanced at subsequent world conferences.
Australia recognises the interdependence of human rights and development. We have long supported the right to development and the emphasis which it places on the importance and the indivisibility of all human rights, its role as providing a basis for the achievement of social and economic development, and the centrality which it attaches to the individual as the beneficiary of the right to development. Peoples’ participation is central to achieving sustainable development and individuals and peoples have the right to enjoy the benefits arising from development.
Turning to the working group on the right to development, we warmly welcome their comprehensive and constructive final report. Australia congratulates the members of the working group on their efforts in so ably fulfilling their mandate to identify obstacles to the implementation and realisation of the right to development and to recommend ways and means of [working] towards the realisation of the right. We believe the recommendations contained in the report set out the steps which are required to achieve closer integration of the human rights and development agendas and thereby promote the realisation of all human rights internationally.
The report clearly states that the realisation of the right to development is the responsibility of all actors in development, within the international community, within states, within the agencies of the united Nations system, other intergovernmental agencies and the non-government organisations as well as among all human beings.
While many obstacles exist in realising the implementation of the right to development, the working group has correctly stressed the need to move from generalities to operational measures. They argue that concrete progress towards attainment of the right to development as a human right can be achieved by inviting national governments to set targets and objectives, consistent with their national considerations, in the field of development and to report periodically on the progress made and on the obstacles they face in reaching those targets and objectives. We commend to governments this and the other many practical and constructive suggestions made by the working group on means by which states can create domestic conditions conducive to the realisation of the right to development. Again, the development of national action plans for human rights can provide a framework for developing these targets and objectives.
On a regional and international level, the working group also has a number of important recommendations which warrant serious consideration. These recommendations include the following:• Treaty bodies could consider the question of the implementation of the right to development and inform the commission of their proposals;
• The Centre for Human Rights could formulate a program for the dissemination of the declaration for human rights, prepare a fact-sheet containing information on the right to development and elaborate criteria, programs and education material for the promotion of the right to development within the framework of the decade on human rights education;
• There could be better coordination between specialised agencies, Bretton Woods institutions and other relevant bodies in the formulation of strategies and programs of action for development, and these bodies could incorporate the principles contained in the declaration of the right to development into their policy guidelines.
One of the most important questions facing the Commission on the right to development is the question of a follow-up mechanism. It is Australia’s view that the realisation of the right to development is too important to be left without a means to further the important research undertaken by the working group. We look forward to the development of an effective mechanism which enables the advancement of the realisation of the right to development in a constructive and non-confrontational manner. …
On 28 March 1996, in Geneva, a statement was made on behalf of the Australian delegation to the Fifty-Second Session of the Commission on Human Rights. The following is an extract of the statement concerning the implementation of the Covenant on Economic, Social and Cultural rights:
The Covenant on Economic, Social and Cultural Rights calls on states parties to implement these rights progressively and to the maximum of their available resources. We would suggest some steps which countries could take at the national level to achieve this:• Legislation or policies which hinder individuals access to basic rights such as water, food shelter, health, education and core labour standards should be identified and repealed;
• Similarly, legislation or policies which curtail civil and political rights, such as the right to freedom of association, should be identified and repealed. Enjoyment of these rights directly affects the enjoyment of certain economic rights;
• Economic and social indicators could be developed to provide benchmarks of economic, social and cultural rights and to monitor the extent to which these are translated into actual outcomes. They could also form a solid basis for planning international co-operation;
• National action plans for human rights are a practical tool for the promotion and protection of economic, social and cultural rights. They take as a starting point individual countries own circumstances and can provide an excellent framework for economic and social indicators;
• Full co-operation with, and better utilisation of, the treaty body mechanism – specifically the committee on economic, social and cultural rights—would complement domestic planning, implementation and review mechanisms. The reporting process under relevant UN and ILO conventions can be a useful means of tracking progress and identifying obstacles to the implementation of economic, social and cultural rights;
• Implementation of the programs of action adopted by UN Global Conferences would go a long way towards realising economic, social and cultural rights. It is worth recalling that the Copenhagen summit recognised the role of all actors in civil society. Partnerships between the public and private sectors could see a greater role for the latter in realising social development goals.
On 2 April 1996, in Geneva, a statement was made on behalf of the Australian Delegation to the Fifty-Second Session of the Commission on Human Rights. The following is an extract of the statement concerning human rights and disabilities:
On the international level, in the continuing absence of an international human rights convention specific to disability, it is Australia’s belief that the most significant human rights advancements in this area, both actual and potential, are embodied in the 1993 Standard Rules on the Equalisation of Opportunities for Persons with Disabilities. …
The Rules summarise the world program of action’s message of equality of opportunity, and add to that the ideological developments which occurred during the international decade of disabled persons. The Rules emphasise states’ obligations to remove barriers to equalisation of opportunities, and elaborate on a number of human rights of particular importance to the situation of persons with disabilities. Significantly, the Rules provide for a monitoring mechanism, through the appointment of a Special Rapporteur.
The work of the Special Rapporteur under the Standard Rules has already begun in earnest. Australia views seriously its international obligations concerning the human rights of persons with disabilities. … Australia has done a considerable amount of work to make the Standard Rules known to national authorities, agencies and organisations. The rules, along with the principles for the protection of persons with mental illness and the improvement of mental heath care (UN doc A/46/49; “The Mental Health Principles”) are often referred to in Federal documents. For example, as part of its response to the recent report of the Human Rights and Equal Opportunity Commission’s national inquiry into the human rights of people with mental illness, the Federal Government has undertaken to work with states and territories apart of the national mental health strategy to ensure that all legislation is consistent with the mental health principles by June 1998.
In the absence of a binding human rights convention in this area, Australia’s belief is that the rights of persons with disabilities are best assured internationally, for the time being, through the monitoring procedure under the Standard Rules. Australia specifically notes and supports the declaration and program of action adopted by the 1995 World Summit for Social Development (para 75(k) of the Program of Action) and the declaration and platform for Action adopted by the 1995 Forth World Conference on Women (paras 178(j), 232(p) and 270 of the Platform for Action), encouraging states to respond to the rights and needs of persons with disabilities by implementing the Standard Rules.
Of course this is not intended to derogate from other vital means of human rights protection, for example, through the activities of mainstream human rights treaty monitoring bodies. In this regard Australia encourages the firmer and clearer recognition of disability as a prohibited ground of discrimination under the major international human rights conventions, in line with similar recognition accorded by the Commission to health and HIV/AIDS status. Australia is pleased to note the specific provision made for disability in Articles 2(1) and 23 of the Convention on the Rights of the Child, and commends the work recently done by the Committee on Economic, Social and Cultural Rights and the CEDAW Committee (amongst others) in ensuring the proper recognition of disability as a human rights issue within the meaning of the ICESCR, CEDAW and other major Human Rights Instruments.
Finally, in accordance with the 1993 Vienna Declaration, Australia’s firm belief is that all human rights of persons with disabilities (in recognition of their inherent dignity as human persons) should be recognised as universal and interdependent, to be pursued and safeguarded by all necessary means, including by implementation of the Standard Rules, on a mutually supportive basis.
On 10 April 1996, in Geneva, a statement was made on behalf of the Australian Delegation to the Fifty-Second Session of the Commission on Human Rights. The following is an edited extract of that statement concerning the further promotion and encouragement of human rights and fundamental freedoms:
The establishment and strengthening of independent national institutions is a particularly effective way for states to promote observance of international human rights standards. Australia believes that positive action at the national level, that is practical and preventive in nature, taking national circumstances fully into account, is the surest means of improved human rights observance.
… In this context, it is important that the Commission recognise national institutions as a constructive partner in work to promote human rights internationally. National institutions have valuable experience to bring to the attention of the commission. It is for this reason that it is important that the Commission make provision for the participation in its deliberations of national institutions, on a basis separate from that of the governments delegations of the countries in which they are located. A temporary measure has been adopted for this session of the Commission. But a more permanent arrangement must be found. Such an arrangement was made for the World Conference on Human Rights and we should certainly find a way to take advantage of the expertise of national human rights institutions in the Commission’s own meetings, not only at this session, but at all sessions in the future. Australia hopes that all delegations will support this as a constructive step toward the strengthening of human rights at the national level.
My delegation would like to address several issues of particular interest to Australia in the further promotion of human rights.
Australia is committed to working towards the elimination of violence against women. Australia co-sponsored the resolution to establish the position of Special Rapporteur. We strongly support her work, and give high priority to integrating the rights of women throughout the UN system. This is in recognition of our concern that violence against women is a form of discrimination which seriously inhibits women’s ability to enjoy fundamental human rights and freedoms on the basis of equality with men.
Australia views as intolerable the prevalence of violence against women and family violence. In her report, the Special Rapporteur places the issue of domestic violence firmly within the sphere of human rights, and also links a number of manifestations of domestic violence such as incest, sex-selective abortions and violence against domestic workers. Her study is an important contribution to understanding of the issue, and her recommendations deserve conscientious attention.
In 1992 Australia’s National Committee on Violence Against Women released a national strategy on violence against women, which sets objectives relating to legislative reform, enforcement of existing laws, education and access to legal services.
Government strategies are aimed at promoting greater uniformity in combating domestic violence nationally, encouraging consistency of domestic violence legislation across the various jurisdictions in Australia and encouraging intolerance of violence through community education, the Australian government supports a strong criminal justice response to the perpetrators of violence, and emergency accommodation for women subjected to violence.
The Australian government also has attempted to address the issue of gender bias within the legal profession by funding the Australian Institute of Judicial Administration to develop a gender awareness programme for magistrates and judges.
Australia continues to be concerned at discriminatory measures against, and social stigmatisation of, those affected by HIV/AIDS, their survivors and carers. We believe our Disability Discrimination Act, which makes it unlawful to discriminate against people with HIV/AIDS or people who are believed to have the infection, backed up by educational initiatives, offers a best practice model. An evaluation of our second national HIV/AIDS strategy, released in September 1995, reported on tracking surveys of community knowledge and attitudes which showed a gradual decrease of discrimination against people with HIV/AIDS.
At the international level, we are encouraged by the establishment of a human rights program within UNAIDS and welcome the progress made by UNAIDS and the Centre for Human Rights in organising a second international expert consultation to draft and adopt guidelines on promoting and protecting human rights in the context of HIV/AIDS.
Australia believes that it is essential that the rights of all vulnerable groups in our societies are recognised. One of the remaining areas of discrimination which is yet to receive serious and detailed attention within the United Nations is that of sexual orientation. Australia recognises that discussion of the issue is bound to be difficult given the diversity of political, cultural and religious traditions which the international community accommodates. Nevertheless, consideration of this issue is long overdue. Australia has legislation relating to discrimination on the basis of sexual preference in conditions of employment. Australia encourages the United Nations to enter into a dialogue aimed at ensuring that individuals are not discriminated against because of their sexual orientation.
On 10 April 1996, in Geneva, a statement was made on behalf of the Australian Delegation to the Fifty-Second Session of the Commission on Human Rights. The following is an edited extract of the statement concerning the advisory services function of the Center for Human Rights:
The advisory services function of the Centre for Human Rights has a vital role to play in strengthening the observance of human rights. Programs to help countries develop institutions and systems to promote and protect human rights will enhance their capacity to prevent violations. Australia believes that advisory services will increase in importance as more and more countries accept the need to improve their human rights performance.
The Centre for Human Rights has developed a strong capacity to provide expert advice and to work closely with States in developing programs which fit individual national circumstances and which implement universal human rights principles. This is not a matter of imposing any particular value system, but of working in a co-operative way to improve observance of human rights. Australia believes that any restructuring of the Centre for Human Rights should ensure that the Centre’s capacity to deliver effective advisory services and technical co-operation is in no way diminished.
Australia welcomes the measures that have been put in place over the last year or so to strengthen the management of the voluntary fund for technical co-operation and to improve dialogue with donors. …
My delegation wishes to make a few comments regarding the promotion of human rights infrastructures in Cambodia through the provision of advisory services and technical co-operation. …
The task of building the infrastructure necessary to sustain improved observance of human rights in Cambodia will require a steady commitment over many years. The international community has a vital role to play in supporting Cambodia’s efforts to overcome the many obstacles it faces. The process of developing Cambodia’s ability to promote and protect the human rights of its citizens is of critical importance. In this regard, my delegation commends the agreement reached recently between the government of Cambodia and the High Commissioner for Human Rights on the continued operation for a further two years of the office of the Centre for Human Rights in Phnom Penh.
Progress has been made in strengthening the human rights infrastructure in Cambodia, particularly in the area of human rights education and in creating a functioning system of justice. There is still, however, much to be concerned about. Australia supports the effective functioning of a multi-party democracy in Cambodia, which includes the right to form political parties, the right to stand for election, the right to take part freely in a representative government and freedom of expression. Australia is concerned about reports of violence and intimidation directed at minor political parties and their supporters. We believe that, in accordance with principles set out in Annex 5 of the agreements signed in Paris on 23 October 1991, there should be no impediments placed in the way of the formation of any political party, irrespective of its political complexion.
Another area of concern is the universal application of the rule of law. Given the events of Cambodia’s recent past, it is essential that it be established unequivocally that all individuals and all institutions are subject to the rule of law.
On 17 April 1996, in Geneva, H.E. Mr Howard Bamsey made a statement to the Fifty-Second Session of the Commission on Human Rights. The following is the text of the address concerning the violation of human rights and fundamental freedoms:
The Australian government believes strongly in the ultimate significant of the worth of the individual. Accordingly the government is just as strongly committed to promoting individual freedom and liberty. Following from this Australia believes that the observance of human rights is an important element in international relations. National interest can have no meaning unless it is founded on individual freedom and respect for human rights. Where human rights are breached or under threat, political instability and major conflict are very often the consequence.
Australia shares the view that human rights are universal and indivisible. States have a common responsibility to preserve and promote the rights set out in the universal declaration and in other international human rights standards. Universality is reflected in the public commitment of states to the principles contained within the universal declaration and subsequent instruments. The fundamental nature of rights reflects a consistency of experience in cultures throughout the world. Although differences occur in traditions and culture from place to place, the sustained support for popular sovereignty, equality of treatment and freedom to act is a recurrent feature of human society.
The primary safeguard for the protection of human rights is a democratic society. There are numerous structures which democratic societies may take, and Australia respects the differences that occur from country to country. But five elements are essential to safeguarding individual rights:• adherence to the rule of law;
• an independent judiciary;
• a free press;
• freedom of speech and assembly; and
• the right to a fair trial.
Complementary to these rights and with them forming an indivisible unity are economic, social and cultural rights and the right to development.
The violation of human rights and fundamental freedoms in any part of the world is usually the most controversial item on this Commission agenda. It causes discomfort to some governments. In Australia’s view, however, the Commission’s ability to scrutinise human rights issues, wherever they may occur, is a crucial test of its credibility. Some governments express concerns from time to time about what they see as problems of consistency and politicisation in the Commission work. There is some basis for these concerns. Certainly, Australia sees consistency as the touchstone of an effective human rights policy, though any such policy must be capable of modulation to respond to the complexities and individual character of the various situations we have to address.
In my delegation’s view, however, the Commission is on the right track. The Commission should continue its present approach while at the same time seeking to enhance consistency by bringing a wider rather than a narrower range of situations before the Commission. We should therefore work together to promote a culture where raising issues under this agenda item will be accepted by all governments concerned as a step towards co-operative measures to bring about improvements in human rights situations, a goal we all share.
Such an approach should be complementary to other measures aimed at promoting better observance of the full range of human rights.
The Commission has been giving attention to an increasingly wide range of issues over recent years. The Commission has also given increasing attention to the institutional infrastructure whereby human rights are promoted and maintained. These include national institutions, regional arrangements and national action plans, as well of course as the human rights treaty system.
Governments have put great efforts into working co-operatively on human rights issues, into finding formulations and positions on which all can agree. The intensive involvement of civil society has brought to bear a wider range of opinion on human rights policy and practice and has ensured an increasingly wider dissemination of awareness about human rights. It has contributed to a trend toward a more inclusive, and thus more meaningful and valid, process. Australia welcomes this, and participates energetically and constructively where it can.
This co-operative approach should include working together to address directly the issues covered by this agenda item. We should keep clearly in view the circumstances that gave rise to the Commission establishment fifty years ago. The massive abuse of human rights in Europe and elsewhere prior to the establishment of the United Nations led the drafters of the charter to seek to ensure that governments should from that time forward work untiringly for the promotion and protection of human rights.
International activity on human rights has led to the realisation and acceptance not only that human rights are a legitimate subject of international discourse, but that international scrutiny of human rights abuses around the world is appropriate and desirable. This realisation goes right back to the earliest days of UN action in the field of human rights. In 1946, India rightly drew the attention of the general assembly to the situation in South Africa. The Commission later set up mechanisms to ensure that situations of human rights abuse could not be concealed, including behind any misuse of the important doctrine of state sovereignty. The first such mechanism related to southern Africa and was set up in 1967. This was followed by mechanisms relating to many other situations, both in relation to specific countries and thematic human rights issues. There are now more than twenty country situations in all continents of the world that are the subject of some kind of Commission consideration.
As the number of mechanisms has grown, the capacity of the United Nations to provide sufficient resources has been called into question. Governments should give wholehearted support to the system of human rights mechanisms set up to look at country situations, while at the same time working for improvements in managerial effectiveness and efficiency.
It is unfortunate that some governments regard Commission consideration of specific human rights situations as objectionable. As it is widely agreed that human rights abuse can and does occur everywhere to some extent or other, all governments should be prepared to accept such scrutiny. It is important that governments co-operate scrupulously with the Commission mechanisms, not least because they are pledged to do so under articles 55 and 56 of the UN charter. It is also desirable that governments should enter into constructive dialogue on human rights issues, both with other concerned governments and also with national and international non-governmental organisations.
Most governments do co-operate with the various mechanisms of the Commission. A recent positive example was our consideration of the situation in Burundi, when the Commission adopted a resolution expressing the international community concerns while at the same time foreshadowing co-operative action. Australia has serious concerns about the persistence of violence in Burundi and at the continued violations of human rights there. But we welcome the relatively open and co-operative approach of the government of Burundi toward Commission activity.
We also welcome, as a positive development, Iran decision to accept a visit by the special representative on the human rights situation in that country.
At the same time, we regret that some governments—notably those of Cuba, Sudan and Iraq—have failed to extend their co-operation to the Commission human rights mechanisms. We urge them to reconsider their position and to give the promotion of human rights the highest priority. Australia is deeply concerned about serious and widespread human rights abuses committed in Sudan. In the case of Iraq, we urge early implementation of SCR 986, which is a crucial test of the Iraqi government commitment to the basic humanitarian needs of its people.
Australia accepts readily the obligation to open itself to international scrutiny. As recently as last month, a team from Amnesty International visited Australia to look into matters bearing on the human rights of Australia’s indigenous people. Australia’s Aboriginal and Torres Strait Islander people enjoy the full range of human rights to which all Australians are entitled, but we recognise that we have further to go before the implementation of these rights is satisfactorily delivered. The Australian government will work vigorously to address these problems and will take carefully into account the reports of international visiting teams such as that of Amnesty International.
Australia has also co-operated with human rights mechanisms of the United Nations. We intend to continue this co-operation. One thematic Special Rapporteur has visited Australia and we are presently in discussion about another such visit.
Australia takes the view that the improvement of human rights observance is ultimately a matter for the countries concerned. But international scrutiny and sometimes criticism can help strengthen the resolve of both governments and peoples of those countries to take the necessary action. My delegation wishes to make brief comment on some situations where the Commission has or should have a particular role.
Australia has been distressed at the failure of the Nigerian military regime to observe internationally accepted human rights standards, including those to which Nigeria is a party. Like many other governments around the world, Australia was shocked at the execution of Mr Ken Saro-Wiwa and other Ogoni representatives after a judicial process that can only be regarded as flawed. Australia calls on Nigeria to honour effectively its commitments to return to democratic rule. Australia supports the appointment of a special rapporteur of the Commission to look into the situation, so that the facts may be more widely known and understood and that recommendations for action may be considered. We appeal to Nigeria to continue to cooperate with the enquires of the Human Rights Committee and to implement urgently its preliminary recommendations.
Australia is also concerned about the situation in Burma and is committed to working for the restoration of democratic government and an end to human rights abuses. While Daw Aung San Suu Kyi and some other political prisoners were released last year, much remains to be done to foster an open political environment and the establishment of political structures and practices that address the political, economic, social and cultural aspirations of all the people of Myanmar. Recent harsh prison sentences for political activists cannot be seen as constructive of social and political cohesion.
The observance of human rights in China is an important element in the strengthening of stability and continued economic growth in China and its effective integration into the region. China has made considerable progress in economic and social areas and has taken important steps in building a more effective legal system, including the promulgation recently of a new criminal procedure law. It is important however that the rights of individuals are guaranteed in this process of economic, social and legal reform. In this regard, Australia remains concerned about fundamental rights such as freedom of speech and assembly and the right to a fair trial. Australia is also concerned about religious freedom, especially within Tibet.
The Indonesian government has made considerable efforts to improve the economy and standard of living of the people of East Timor. Nevertheless, Australia remains concerned about human rights problems there. There is a heavy legacy of the past to overcome. Australia supports the process of talks on East Timor under the auspices of the United Nations Secretary-General. Australia also encourages Indonesia to reduce its military presence in East Timor, to provide for improved observance of human rights in the province and for administrative arrangements that accord more influence and autonomy to indigenous East Timorese.
We note with interest the report of the High Commissioner for Human Rights on his visit to Indonesia and urge Indonesia to take account of his suggestions and of the recommendations of the thematic rapporteurs that have visited East Timor.
We recognise a number of positive developments in Indonesia with regard to human rights, such as the increased effectiveness of the Indonesian national Commission on human rights, including the opening of an office in Dili, and government action on serious abuses, both in East Timor and Irian Jaya.
Australia has registered with the Papua New Guinea government concern at the situation on Bougainville and our continuing interest in contributing to a peaceful settlement of the conflict. We strongly condemn the recent spate of killings on Bougainville. We deplore any attempts to exert political pressure through violence. Such actions are clearly contrary to the wishes of the majority of Bougainville and who have indicated a strong desire to reach a peaceful solution to the crisis through a process of negotiation. A military solution to the crisis is not possible. Restraint needs to be exercised by all parties. The Australian Government is concerned to see the peace process revived. We believe all avenues for a negotiated solution must be left open. We welcome reported comments by the Prime Minister Sir Julius Chan that the option for a continuation of the peace process is still open. We have advised the PNG Government that Australia stands ready to facilitate a further meeting of Bougainville leaders or otherwise to seek to revive the peace process in ways which might be helpful to Papua New Guinea. We commend Papua New Guinea for signalling its intention to establish a national human rights Commission by September 1996 to contribute to the promotion and protection of human rights in Papua New Guinea.
Clearly the security and political situation in Rwanda is fragile. The Commission has a continuing role in monitoring the situation in terms of its mandate but also, through its field operations, in contributing to the prevention of further human rights abuse. Australia supports the efforts of the High Commissioner in this area and has recently decided to contribute a further 200,000 Australian dollars to this project, bringing Australia’s total contribution to half a million Australian dollars.
Australia remains concerned at the continuing political stalemate in Cyprus. Australia supports the United Nations Secretary-General’s efforts to find a lasting and peaceful solution to the Cyprus question as well as those of others, such as the Commonwealth and the EU. Australia believes the time has come to bring these efforts to a head. We support the independence, sovereignty, territorial integrity and unity of the republic of Cyprus. We also support a just solution in which the rights of all Cypriot people would be protected and Cyprus would have a single sovereignty, one international personality and one citizenship. After more than 21 years of division on the island, we hope that all parties involved in the Cyprus question can demonstrate goodwill and a new resolve to find a lasting peace on the island…
On 22 April 1996, in Geneva, a statement was made on behalf of the Australian Delegation to the Fifty-Second Session of the Commission on Human Rights. The following is the edited text of that statement concerning the drafting of a declaration on the rights and responsibilities of individuals, groups and organs of society to promote and protect universally recognised human rights and fundamental freedoms.
…It is clear that there is a need to find effective means of protecting those who are willing to speak out against violations of human rights the world over.
The working group on the draft declaration has just completed its eleventh session. In the lead up to that session, Australia believed that, on the basis of a carefully balanced text, the working group would have been able to complete its work on the draft declaration. Instead, no new text was adopted at the session. Australia is deeply disappointed at this outcome and would strongly urge all states to continue working towards the conclusion of the draft declaration. Australia believes that if the international community is sincere in its desire to see a declaration that provides protection for human rights defenders everywhere, the working group will be able to complete its work in the near future.
The objective of the working group is to produce a document that provides protection for human rights defenders, that underlines the legitimacy of their work and allows them to perform their invaluable work with regard to human rights education, assisting victims of human rights abuses and raising public awareness on a variety of human rights issues. For this reason, Australia believes that the declaration must contain certain elements as a minimum. These include:• that individuals should not be hindered, by administrative or other means, in the setting up of organisations that promote and protect human rights;
• that these organisations should be free to meet and to communicate freely with other human rights defenders;
• that these organisations should be free to receive and utilise voluntary financial and other contributions in order to carry out their activities in the field of human rights promotion and protection;
• that these organisations should be free to publish and make known their views on human rights issues, including drawing public attention to general or specific cases of human rights violations.
Australia welcomes the efforts made by the Chairman/Rapporteur of the working group, Professor Jan Helgesen, and his report on the Eleventh Session (contained in E/CN.4/1996/97). We strongly support the working group’s recommendation that Professor Helgesen continue his efforts to prepare a consolidated and refined text in the form of a working paper, in the light of past deliberations, for consideration at a future session of the working group. We are ready to cooperate with Professor Helgesen in his task and look forward to seeing the fruits of his efforts, if possible, at the next session of the working group.
As an additional means of highlighting the plight of human rights defenders and thereby promoting their protection, Australia warmly welcomes the resolution passed by this Commission under item 9 (thematic procedures) which included the suggestion that the special rapporteurs, representatives, experts and chairpersons of the special procedures of the Commission on Human Rights can make available information on the situation of human rights defenders and how their protection can be enhanced. …
On 22 April 1996, in Geneva, a statement was made on behalf of the Second Session of the Commission on Human Rights. The following is an edited extract of the statement:
…The adoption of the convention on the rights of the child, and the convening of the world children’s summit represented an evolution from a welfare-based approach to addressing children’s needs, to an approach grounded in the recognition of rights. It also marked a maturation of the concept of human centred development, and a recognition that peace, social and economic development, and respect for individual human rights are inter-dependent. To quote from UNIEF’s 1996 report:
“Today’s problems of poverty and violence will never subside unless we invest in the physical, mental and emotional development of the next generation” (State of the World’s Children, p 11).
Half a century of experience has shown that there are no quick fixes for these problems. Sustainable solutions require long-term commitment to the provision of effective, basic services. The basic needs and human rights of children should be integral elements of national development strategies. At the international level, the challenge is to establish conditions that enable national development strategies, designed in response to local conditions and reflecting universally recognised standards, to be implemented effectively and efficiently.
We should acknowledge some of the important work currently underway in the area of children’s rights.
The Committee on the Rights of the Child continues to develop new working methods aimed at improving respect for children’s rights. For example, the regional visits program has enabled it to get involved, at the local level, in addressing problems such as exploitative child labour. We welcome the Committee’s decision to devote a day of general discussion to the problem of sexual exploitation of children. The High Commissioner for Human Rights’ proposed plan of action to support the Committee recognises the importance of enabling the Committee to deal with its workload in innovative ways. Australia is pleased to be able to contribute to the plan of action.
Two working groups of the Commission are elaborating draft optional protocols to the convention on the rights of the child. These aim to strengthen international legal protection for children in two areas of particular concern: one is the sale of children, child prostitution and child pornography, and the other is the participation of children in armed conflict.
Both these standard setting activities complement other important initiatives. The work concerning sexual exploitation of children relates to the mandate of the special rapporteur on the sale of children, child prostitution and child pornography, Mrs Ofelia Calcetas-Santos. It is also relevant to the first world congress on the commercial sexual exploitation of children, to be held in Sweden in August this year, and to the working group on contemporary forms of slavery, which at its twentieth session addressed the problem of trafficking in persons.
The optional protocol on the participation of children in armed conflict should also be seen in the context of initiatives such as UNIEF’s anti-war agenda and the high-level group established by the general assembly to study the impact of war on children. We look forward to the group’s report. In view of the particular vulnerability of children to be killed or maimed by anti-personnel mines, we urge all armed forces to renounce or suspend the use of this weapon and all inhumane weapons.
Within the ILO there is a heightened focus on the global problem of exploitative child labour. Despite the legal obligations set out in article 32 of the Convention on the Rights of the Child, children continue to be exploited for their labour, huge numbers suffering under contemporary forms of slavery including debt bondage. The ILO’s decision to begin work on drafting a convention dealing specifically with exploitative child labour is welcome.
In response to growing international concern over this abuse of children’s rights, a greater awareness of the nature and scope of the problem is emerging. Solutions must address underlying causes and ensure that children are given viable long term alternatives rather than simply being displaced from jobs. The provision of quality education is crucial, as is the need for broader poverty alleviation strategies. However, poverty or lack of development cannot be used as a pretext for the exploitation of children. Conversely, it must be recognised that exploitative child labour occurs in developed economies as well.
In 1996, countries will be reporting to the UN on progress in implementing their national plans of action for achieving the goals of the 1990 world children’s summit. This should provide added impetus for the achievement of the summit’s ten-point plan of action for targeted reductions in infant and maternal mortality, child malnutrition and illiteracy, as well as targeted levels of access to basic services for health and family planning, education, water and sanitation.
In acknowledging this work, we remain conscious that much remains to be done. One issue of continuing concern to organisations working in the field, is the precarious position of children kept in detention with adults.
We believe that international action in the field of children’s rights should be seen as part of a coherent strategy. Better co-operation and co-ordination will increase the effectiveness and efficiency of individual initiatives and agencies.
Girl children suffer specific disadvantage. Statistics show that when children work, girls work longer hours than boys; that girls are more likely to suffer sexual abuse and that they are more frequently the subject of commercial sexual exploitation. The platform for action adopted by the Beijing Conference recognised the special needs of the girl child. Beijing also recognised the importance of protecting the human rights of women in order to advance the human rights of children. We believe that this special disadvantage requires specific action.
Article 28 of the Convention on the Rights of the Child requires states to provide education for the full development of the child. This obligation recognises that better observance of human rights ultimately requires changes in behaviour and attitudes. Ignorance and intolerance go hand in hand, and they lend themselves to actions which violate human rights.
The decade for human rights education is an important initiative. A robust system of quality, universal human rights education would be a worthy legacy to bequeath our children. It would be a practical contribution to the protection of future generations from the scourge of war and poverty.
On 12 November 1996, a statement was made to the Third Committee of the United Nations General Assembly. The following is an edited extract of the statement concerning the promotion and protection of the rights of children:
… The challenge, of course, remains to implement the convention. This must be done primarily at the national level. However, there is much scope for regional and international action especially in tackling problems of a cross-border nature such as trafficking in children, child sex tourism and child pornography. The United Nations system through the work of bodies such as the committee on the rights of the child and UN funds and agencies, notably UNICEF, continues to play a crucial role in monitoring and assisting implementation of the convention.
Complementing the work of the UN system, there have been welcome initiatives such as the world congress on the commercial sexual exploitation of children. The congress was organised by, and brought together, non-governmental, inter-governmental and government participants. This is a positive model of cooperation and one which we hope will form the basis of future action on behalf of children. The Australian government participated in the lead up to the congress as well as at the congress itself, and is committed to following up the congress by giving effect to the Declaration and Agenda for action adopted at Stockholm. We would urge member states to give priority to the implementation of the Congress Agenda for Action. We would also urge the private sector to take up the challenge of developing effective partnerships with NGO’s, governments and intergovernmental agencies, for example in areas involving tourism and computer generated or disseminated pornography.
I would like to refer finally to the problem of exploitative child labour. Despite the legal obligations set out in article 32 of the Convention on the Rights of the Child, children continue to be exploited for their labour, huge numbers suffering under contemporary forms of slavery including debt bondage. The ILO’s decision to begin work on drafting a convention dealing specifically with exploitative child labour is welcome.
… Our concern about the plight of children must be converted into meaningful action. This requires political commitment and a critical examination of our attitudes. Enlightened self-interest is not enough. Neither is a utilitarian approach based on the identification of children as “our future”. Our actions must be based on the genuine belief that children are deserving of care and protection in their own right. Children’s rights are human rights.
On 21 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Laurence Brereton. The text of the question and answer follow (House of Representatives, Debates, 21 August 1996, p 3494):
Mr Brereton—(1) In the instruments ratifying or acceding to Red Cross and other human rights conventions, what reservations or declarations were made by Australia which are still in force.
(2) When was each reservation or declaration last considered.
(3) What progress has been made in (a) withdrawing or (b) modifying each reservation or declaration.
Mr Downer—(1) In relation to the Red Cross conventions, Australia made the following declarations:
On ratification of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (August 12, 1949) on 14 October 1958, Australia made the following declaration:
“…and declares that it interprets the term “military installations” in paragraph 2 of Article 68 of the said Convention as meaning installations having an essential military interest for an Occupying Power.”
On ratification of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1) on 21 December 1991, Australia made the following declarations:
In depositing its instrument of ratification for Protocol 1, Australia hereby makes declarations of understanding in relation to Articles 5, 44 and 51 to 58 inclusive of the said Protocol.
It is Australia’s understanding that in relation to Article 5, with regard to the issue whether, and in what measure, Protecting Powers may have to exercise any functions within the combat zone (such as may be implied by provisions in Parts II and IV of the Protocol), the role of the Protecting Power will be of a like character to that specified in the First and Second Conventions and Part II of the Fourth Convention, which apply mainly to the battlefield and its immediate surroundings.
It is the understanding of Australia that in relation to Article 44, the situation described in the second sentence of paragraph 3 can exist only in occupied territory or in armed conflicts covered by paragraph 4 of Article 1. Australia will interpret the word “deployment” in paragraph 3 (b) of the Article as meaning any movement towards a place from which an attack is to be launched. It will interpret the words “visible to the adversary” in the same paragraph as including visible with the aid of binoculars, or by infra-red or image intensification devices.
In relation to Articles 51 to 58 inclusive it is the understanding of Australia that military commanders and others responsible for planning, deciding upon, or executing attacks, necessarily have to reach their decisions on the basis of their assessment of the information from all sources, which is available to them at the relevant time.
In relation to paragraph 5(b) of Article 51 and to paragraph 2(a)(iii) of Article 57, it is the understanding of Australia that references to the “military advantage” are intended to mean the advantage anticipated from the military attack considered as a whole and not only from isolated or particular parts of that attack and that the term “military advantage” involves a variety of considerations including the security of attacking forces. It is further the understanding of Australia that the term “concrete and direct military advantage anticipated”, used in Articles 51 and 57, means a bona fide expectation that the attack will make a relevant and proportional contribution to the objective of the military attack involved.
It is the understanding of Australia that the first sentence of paragraph 2 of Article 52 is not intended to, nor does it, deal with the question of incidental or collateral damage resulting from an attack directed against a military objective.”
In relation to other human rights conventions, I have understood the honourable member’s question to mean the major UN human rights treaties to which Australia is a party. The treaties which come within this category and in relation to which Australia has made reservations or declarations upon ratification or accession are as follows:(a) the International Convention on the Elimination of All Forms of Racial Discrimination, 7 March 1966. On ratification of the Convention on 30 September 1975, Australia made the following declaration:
“The Government of Australia…declares that Australia is not at present in a position specifically to treat as offences all the matters covered by article 4(a) of the Convention. Acts of the kind there mentioned are punishable only to the extent provided by the existing criminal law dealing with such matters as the maintenance of public order, public mischief, assault, riot, criminal libel, conspiracy and attempts. It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of article 4(a).”
(b) the International Covenant on Civil and Political Rights, 16 December 1966. On ratification of the Convention on 13 August 1980, Australia made the following reservations and declaration:
Article 10
“In relation to paragraph 2 (a) the principle of segregation is accepted as an objective to be achieved progressively. In relation to paragraph 2(b) and 3 (second sentence) the obligation to segregate is accepted only to the extent that such segregation is considered by the responsible authorities to be beneficial to the juveniles or adults concerned.”
Article 14
“Australia makes the reservation that the provision of compensation for miscarriage of justice in the circumstances contemplated in paragraph 6 of article 14 may be by administrative procedures rather than pursuant to specific legal provision.”
Article 20
Australia interprets the rights provided for by article 19, 21 and 22 as consistent with article 20; accordingly, the Commonwealth and the constituent States, having legislated with respect to the subject matter of the article in matters of practical concern in the interest of public order (ordre public), the right is reserved not to introduce any further legislative provision on these matters.”
Declaration
“Australia has a federal constitutional system in which legislative, executive and judicial powers are shared or distributed between the Commonwealth and the constituent States. The implementation of the treaty throughout Australia will be effected by the Commonwealth, State and Territory authorities having regard to their respective constitutional powers and arrangements concerning their exercise.”
(c) the Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979. Upon ratification of the Convention on 28 July 1983, Australia made the following declaration and reservations:
“Australia has a federal constitutional system in which legislative, executive and judicial powers are shared or distributed between the Commonwealth and the Constituent States. The implementation of the Treaty throughout Australia will be effected by the Commonwealth State and Territory Authorities having regard to their respective constitutional powers and arrangements concerning their exercise.”
The Government of Australia states that maternity leave with pay is provided in respect of most women employed by the Commonwealth Government and the Governments of New South Wales and Victoria. Unpaid maternity leave is provided in respect of all other women employed in the State of New South Wales and elsewhere to women employed under Federal and some State industrial awards. Social security benefits subject to income tests are available to women who are sole parents.
The Government of Australia advises that it is not at present in a position to take the measures required by article 11 (2) (b) to introduce maternity leave with pay or with comparable social benefits throughout Australia.
The Government of Australia advises that it does not accept the application of the Convention in so far as it would require alteration of Defence Force policy which excludes women from combat and combat-related duties. The Government of Australia is reviewing this policy so as to more closely define “combat” and “combat-related duties.”
(d) the Convention on the Rights of the Child, 20 November 1989. Upon ratification of the Convention on 17 December 1990, Australia made the following reservation:
“Australia accepts the general principles of article 37. In relation to the second sentence of paragraph (c), the obligation to separate children from adults in prison is accepted only to the extent that such imprisonment is considered by the responsible authorities to be feasible and consistent with the obligation that children be able to maintain contact with their families, having regard to the geography and demography of Australia. Australia, therefore ratifies the Convention to the extent that it is unable to comply with the obligation imposed by article 37 (c).”
(2) and (3) The declaration made when Australia ratified the Geneva Convention relative to the Protection of Civilian Persons in Time of War has not since been considered. No progress has been made on withdrawing or modifying this declaration, and there is no present intention to withdraw or modify it.
The declarations made when Australia ratified Protocol 1 Additional to the Geneva Conventions were last considered prior to ratification on 21 June 1991. No progress has been made in withdrawing or modifying these declarations. The declarations were considered appropriate at the time of ratification, and are still considered appropriate, as the circumstances ruling at that time have not materially altered. Accordingly there is no present intention to withdraw or modify them.
The declaration made when Australia ratified the International Convention on the Elimination of All Forms of Racial Discrimination was last considered in 1995. Withdrawal of the declaration is not possible at this stage. Article 4 (a) of the Convention contemplates the enactment of criminal offences for racial hatred and incitement to racial discrimination. As the Racial Hatred Act 1995 contains only a civil prohibition on such conduct, it does not fulfil Australia’s obligations under Article 4 (a) and therefore is not sufficient to allow Australia to withdraw its reservation.
The question of withdrawing or modifying the reservations made when Australia ratified the International Covenant on Civil and Political Rights is considered every year when Australia’s National Action Plan on human rights is updated. Paragraph (c) of the National Action Plan requires Australia to indicate human rights treaty reservations we intend to remove. In relation to the reservation to Articles 10 (2) and (3) of the Covenant, due to Australia’s demographic and geographical features it is difficult to achieve the total segregation of accused and convicted prisoners, and children or juvenile prisoners from adult prisoners. Furthermore the Australian Government remains convinced that it is appropriate to allow the responsible authorities discretion to determine whether it is beneficial for a child or juvenile to be imprisoned with adults. However the Government is committed to achieving the goal of separation of accused and convicted prisoners. Given the above, there are no present intentions to withdraw or modify Australia’s reservations.
In relation to the reservation to Article 14 of the Covenant, the Australian Government advises that there are administrative procedures available in all Australian jurisdictions to provide compensation for miscarriages of justice in the circumstances envisaged in the Covenant. Accordingly, the reservation to Article 14 is still considered appropriate.
The reservations made when Australia ratified the Convention on the Elimination of All Forms of Discrimination against Women are currently being considered by the Government. It is not known at this stage when a final decision will be taken on withdrawal or modification, and what that decision will be. The declaration made by Australia on ratification of the Convention is still considered appropriate.
The question of withdrawing or modifying the reservation made when Australia ratified the Convention on the Rights of the Child is considered every year when Australia’s National Action Plan on human rights is updated. In relation to the reservation to Article 37 (1) of the Convention, due to Australia’s demographic and geographical features it is difficult to achieve the total segregation of children or juvenile prisoners from adult prisoners. Furthermore the Australian Government remains convinced that it is appropriate to allow the responsible authorities discretion to determine whether it is beneficial for a child or juvenile to be imprisoned with adults. Accordingly, the reservation to article 37 (1) is still considered appropriate.
On 14 November 1996, H. E. Mr Richard Butler made a statement to the Third Committee of the United Nations General Assembly. The following is the text of that statement concerning human rights generally:
… The inherent dignity and the equal and inalienable rights of individuals are the foundation of freedom, justice and peace. Where human rights are breached or are under threat, political instability and conflict are the inevitable consequence. Australia believes that human rights are universal and indivisible—economic, social and cultural rights as well as civil and political rights. The primary safeguard for the protection of human rights is a democratic society, in which five elements are essential to safeguarding individual rights: adherence to the rule of law, an independent judiciary, a free press, freedom of speech and assembly, and the right to a fair trial.
Human rights are relevant to all areas of human activity, and lie at the heart of a stable and peaceful international order. The World Conference on Human Rights recognized that human rights are an integral part of international activity, and that international scrutiny of a country’s human rights performance is not only legitimate, but an important part of promoting universal respect for the observance of human rights.
The human rights system must develop co-operative measures to encourage and assist governments to improve their human rights performance. It must also condemn human rights abuses wherever they occur and take remedial action. Australia believes that all countries should co-operate fully with the United Nations human rights mechanisms created for this purpose. Australia accepts readily the obligation to open itself to international scrutiny. Australia has co-operated with UN human rights mechanisms, and will continue to do so. The UN Special Rapporteur on the Sale of Children visited Australia in 1992, and arrangements are being made for a visit of the UN Special Rapporteur on Religious Intolerance in 1997.
Earlier this year, a team from Amnesty International visited Australia to look into matters bearing on the human rights of Australia’s indigenous peoples. Australia’s Aboriginal and Torres Strait Islander people enjoy the full range of human rights to which all Australians are entitled, but we recognise that we have further to go before the implementation of these rights is satisfactorily delivered. Australia will work vigorously to address these problems and will take carefully into account the reports of international visiting teams such as that of Amnesty International.
We regret that some governments—notably those of Sudan, Iraq and Cuba—have failed to extend their co-operation to the human rights mechanisms. We urge them to reconsider their positions and to co-operate with the United Nations Special Rapporteurs. This is an obligation under Articles 55 and 56 of the Charter, whereby Member States pledge to co-operate with the United Nations for the achievement of human rights and fundamental freedoms.
In Iraq, we remain concerned that gross violations of human rights continue, including summary executions, torture, arbitrary arrest and suppression of freedom and of opinion and expression. In Sudan, we are concerned about widespread human rights abuses which continue unabated. We urge Sudan and Iraq to take steps towards improving the grave human rights situations in their countries.
We welcome, as a positive development, Iran’s decision to accept a visit by the United Nations Special Representative on the human rights situation in that country. This has indicated that Iran is willing to maintain dialogue with the UN on human rights issues and we encourage Iran to continue this co-operation
Australia is deeply concerned at the lack of progress towards democratisation and the continuing violation of human rights in Burma. Among the many abuses committed by the Burmese regime, Australia deplores in particular the continuing detention of political prisoners under very harsh conditions, the use of forced labour and the forced conscription of civilians to serve as military porters under appalling conditions, the forced displacement of ethnic communities, and the ongoing harassment of those engaged in legitimate political activity. Recent actions such as the suppression of the National League for Democracy’s party congress in September, and the banning of the NLD’s weekend public meetings through the application of the draconian Law 5/96, only serve to heighten tensions and further erode the rights of the Burmese people
The Australian Government urges the SLORC to pursue a solution to the internal problems confronting Burma in a spirit of compromise and respect for the fundamental human rights of the Burmese people. We call on the SLORC immediately to cease all repressive actions against the Burmese people; to begin a substantive dialogue on political reform with Daw Aung San Suu Kyi and the NLD; to release all political prisoners unconditionally; to allow the NLD to engage in the full range of normal political activities; and to cooperate fully with the Secretary General’s Special Representative.
In China, the promotion and protection of human rights is an important element in strengthening stability and economic growth. China has made considerable progress in recent years in the implementation of economic and social rights, and has taken steps to build a more effective legal system, including through the increased right of appeal under the new administrative law and better defence access under the new criminal procedures law. However, it is important to ensure that the rights of individuals are guaranteed in this process of economic, social and legal reform. Concern remains over the implementation of civil and political rights in China, including freedom of speech and assembly, the right to a fair trial, the continuing detention and harassment of dissidents, and religious freedom. The sentencing of Chinese dissident, Wang Dan, to eleven years gaol underlines the continuing need to focus attention in this area.
Australia believes that developing Cambodia’s ability to promote and protect human rights is of critical importance. However, the task of improving human rights observance and the justice system in Cambodia is an enormous challenge which will take many years. What we seek is steady progress. Australia is committed to assisting Cambodia in this task. We support the effective functioning of a multi-party democracy, which includes the right to form political parties, to stand for election, to take part freely in a representative government and freedom of expression.
Many positive developments have been made in strengthening the human rights infrastructure in Cambodia, in particular, human rights education and the creation of a functioning justice system. However, problems remain in other areas. We are concerned at reports of violence and intimidation directed at minor political parties and their supporters. We support the recommendation of the Secretary-General’s Special Representative that Cambodia bring to justice all those who have been involved in acts of violence, intimidation, threats or other acts which may jeopardise a neutral political climate in which free and fair elections may be conducted in 1997/98. The universal application of the rule of law is another area of concern. Given the events of Cambodia’s history, it is essential that it be unequivocally established that all individuals and institutions are subject to the rule of law.
In Indonesia, there have been a number of positive developments with regard to human rights, such as the increased effectiveness of the Indonesian National Commission on Human Rights, including the opening of an office in Dili, and Government action on serious abuses in East Timor and in Irian Jaya. The Indonesian Government has also made considerable effort to improve the economy and standard of living in East Timor. Nevertheless, Australia remains concerned about human rights situation in East Timor.
We support the process of talks on East Timor under the auspices of the United Nations Secretary-General. Whilst we would not wish to be prescriptive about what should be done in East Timor, we encourage Indonesia to take early steps to improve the human rights situation, reduce its military presence and make administrative arrangements that accord a greater role to indigenous East Timorese. We also urge the Indonesian Government to take account of the recommendations of the United Nations thematic rapporteurs who have visited East Timor.
In Afghanistan, the recent upsurge in fighting and the accompanying abuses of human rights, such as the bombing of civilian targets, makes the need for a negotiated settlement all the more urgent. We urge the parties to the conflict to work seriously towards a peaceful settlement. In particular, we urge respect of international human rights and humanitarian law standards. We also wish to register our concern about the situation of women and girls, and call on the Taliban forces to ensure that the human rights of women and girls are fully respected in accordance with international norms.
We welcome the recent announcement by the Turkish Foreign Minister of new human rights initiatives. While recognising that Turkey needs to respond to terrorism, we believe that legislative reform and improved conduct of the security forces, which have been a long-standing concern of the international community, would contribute to a more stable security environment. Widespread abuse of human rights continues to be a problem in Turkey. We call on the Turkish Government to move quickly to address concerns in relation to torture, extra-judicial executions and disappearances, as well as the legitimate aspirations of the Kurdish minority in respect to their human rights.
The conflict in Bougainville continues to give rise to human rights concerns. We strongly condemn the recent spate of killings on Bougainville. We urge all parties to the conflict to act in accordance with international human rights laws and to work genuinely towards a negotiated resolution of the conflict. Australia was shocked and saddened at the assassination of Theodore Miriung, Premier of the Bougainville Transitional Government, in October 1996. We welcome the PNG Government’s determination to conduct an independent inquiry into the assassination. Australia stands ready to play its part in helping bring about an early end to the conflict and a lasting peace, including through an increased focus on Bougainville in our aid program.
Australia welcomed the PNG Government’s decision in December 1995 to establish a Human Rights Commission, which is being assisted by the UN Centre for Human Rights. The Commission will not only assist in the investigation and remedy of human rights violations in PNG, but will provide Papua New Guinea with the necessary expertise to ratify UN human rights treaties. We encourage the PNG Government to pass enabling legislation through the PNG Parliament at the earliest opportunity.
Australia is also deeply concerned about the persistence of violence in Burundi and Rwanda and the continued violation of human rights in those countries. More recently, the humanitarian crisis in Eastern Zaire has brought hundreds of thousands of refugees and displaced persons to the edge of disaster. Australia welcomes efforts and initiatives in the Security Council, and on the part of regional countries, aimed at the provision of relief to those caught up in the conflict, and restoring peace, security and stability in the Great Lakes region. Australia also supports the efforts of the Special Representative of the Secretary-General for Burundi, and calls on all concerned to support his efforts.
Madam Chairperson
One of the more positive developments on the human rights arena in recent years has been the creation of the post of High Commissioner for Human Rights. High Commissioner Ayala Lasso has worked steadily to develop his role in strengthening the human rights system and in improving the co-oordination and promotion of human rights activities. He has undertaken a wide-ranging program of country visits , and taken a number of other important initiatives. Australia is pleased with the proposals he has made to restructure the Centre for Human Rights, and we offer him our fullest support in his efforts to improve its efficiency and effectiveness.
Human rights protection demands more than international rules and monitoring mechanisms. Human rights education is a key factor in creating an understanding of human rights essential for long-term progress. It opens up opportunities for countries to engage more constructively on human rights, and so promote better standards of human rights observance, domestically and internationally. We encourage the UN to look at further ways to promote and support human rights education, at regional and sub-regional levels, taking into account the diverse needs of information-rich and poor communities. We need improved dissemination of information, and better education and training services for remote communities with low levels of literacy and poor telecommunications.
Australia attaches great importance to the role of national institutions in human rights implementation, and to their cooperation at the regional level. We particularly welcome the agreement at the first Asia-Pacific Workshop of National Human Rights Institutions, held in Darwin in July, for the establishment of an informal Asia-Pacific Forum of National Human Rights Institutions. The aim of the Forum is to strengthen national human rights institutions in the region, promote the implementation of international human rights standards and encourage greater regional cooperation on human rights. This initiative is a tangible and constructive step towards longer-term regional human rights arrangements and has the potential to make a significant contribution to the promotion of human rights in the Asia-Pacific region. …
On 10 December 1996 (International Human Rights Day), Mr Peter Nugent, Chair of the Human Rights Subcommittee of the Joint Standing Committee on Foreign Affairs, Defence and Trade and Chair of the Parliamentary Amnesty International Group provided the following information to the House of Representatives (House of Representatives, Debates, 10 December 1996, p 8116):
… As you will be aware, Mr Deputy Speaker, human rights are long understood but only comparatively recently defined in international law by the international bill of rights, the Universal Declaration of Human Rights in 1948, plus the international covenants in 1996 on civil and political rights and on economic, social and cultural rights. Other conventions have followed, giving greater definition to internationally acceptable rights.
The standards defined in the various covenants are both broad and basic and therefore difficult to dispute: the preservation of the inherent dignity of human life, the right to life, liberty, freedom of thought and expression, and the pursuit of justice and peace. The importance of universality and indivisibility was reaffirmed at the Vienna World Conference on Human Rights in June 1993. All nations then agreed to the principles in the final declaration. Therefore, there is an international consensus that there is no cultural difference in what constitutes human rights.
The end of the Cold War should offer opportunities to implement human rights standards in a way that was impossible when the world was sensitive to a moral competition between two political philosophies, yet any cursory look at the state of the world would recognise a bleak prospect indeed. Fierce internal disputes of considerable savagery have broken out in most continents: Rwanda, Bosnia, Afghanistan and Sri Lanka.
More than any other issue, the international community should address the issue, it seems to me, of minority rights—the most urgent and the most vexed issue facing the United Nations and the major threat to world security. There is a need to rethink the idea of national self-determination, remove from it its secessionist tendencies and its inherent approval of national ethnic purity. It is a dangerous and divisive notion in a mobile world.
Moreover, governments cannot maintain national cohesion by force and the continual oppression of minorities. Effective and successful multiracial and multi-ethnic states need to express their diversity in institutions and political structures which genuinely accommodate the aspirations of their minorities. Failure to make that accommodation—or worse, abuse and oppression of minorities—gives moral force to claims for independence and secession. The Universal Declaration of Human Rights says:
It is essential, if man is not to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
The pursuit of human rights is a matter of great importance for Australians. It is one of our defining characteristics, expressed colloquially as the 'fair go' philosophy. There is broad cross-party support in the parliament for human rights principles. The human rights subcommittee in this parliament gets an enormous volume of correspondence from Australian citizens. There is considerable consensus of view expressed by people on their expectations on this issue.
There is, and always has been, a gulf between theory and practice. Implementation is the real test of commitment. All nations, including our own, have weaknesses that must be addressed. Just as the values underpinning human rights are universal, so the human weaknesses—cruelty, tyranny, racial intolerance and war—are universal. For us, the flaws in our record are in the treatment of Aboriginal people, the homelessness amongst youth, the treatment of the mentally ill, violence against women and violence against children, which is particularly topical at the moment.
Australia is generally well served by its legal framework, and its record overall is a laudable one. Australia genuinely tries to live up to the obligations that it has agreed to. We believe in the rule of law and the protection of the weak against the strong. Having said that, however, we should also be aware that any failure to maintain the highest standards undermines the fundamental principles upon which the nation defines itself: vigilance is ever important. …
On 10 December 1996, the Minister for Foreign Affairs, Mr Alexander Downer, marked Human Rights Day with an address to a Forum on Australia's Human Rights Obligations. An edited version of the text follows:
… Human rights are an integral element in Australia's foreign policy because they express values which are central to Australian society.
This Government believes in the universality and indivisibility of fundamental human rights. It also believes that Australia can take effective steps to ensure the promotion of human rights, including through representations to promote those rights in its dealings with other countries.
Today I would like to outline the Government's broad approach to human rights issues. I will do this first by explaining the intellectual foundations of the Government's approach to human rights. Secondly, I want to outline how these foundations translate into concrete and practical human rights initiatives. Thirdly, I will outline initiatives for the future. Part One: The Foundations of the Government's Approach to Human Rights
This Government views human rights as an inseparable part of Australia's overall foreign policy approach.
The importance of human rights within Australian foreign policy is explained by four key principles from which the Coalition draws.
First, human rights are important in the conduct of Australian foreign policy because the treatment of individuals is of itself a matter of concern to Australia.
Secondly, the promotion and protection of human rights is important to Australia's national interest because it underpins the country's broader security and economic interests. It is clear that serious human rights abuse can upset regional security as was sadly evident both during and following the period of Khmer Rouge control in Cambodia which ultimately led to refugee flows and the need for major international involvement.
Thirdly, the Australian Government's policies on human rights are based on the Universal Declaration of Human Rights and subsequent international human rights instruments which enshrine the principles of universality and indivisibility of human rights.
Australian policy, therefore, does not presume to hold other nations to standards that we do not apply to ourselves.
… Australia also accepts its reporting obligations under international human rights treaties. The comments of UN Committees on Australia's reports, and on complaints brought by individuals help to ensure that we meet our international commitments under these treaties.
I welcome the initiative of my colleague, the Attorney-General, in convening recently the first session of a regular forum for NGOs to exchange information and discuss domestic human rights issues. This meeting complements the successful NGO human rights consultations organised by my Department for a number of years now.
Fourthly, the Government believes that attention and consideration should be given to the promotion, protection and implementation of all human rights, whether they be civil and political, or economic, social and cultural.
This proposition lies at the heart of the right to development which links the two categories of rights in a way that is particularly relevant to our region.
Economic development is critical for improving the quality of life for people in developing countries, which is the ultimate aim of all human rights endeavours. At the same time, the stability of free and democratic societies can enrich and accelerate human development by providing standards and direction for social and economic growth.
With these points in mind, the transition of ethical approaches into practice is guided by two considerations.
First, Australia must be realistic in its assessment of what can and cannot be done on particular human rights issues, and practical about the best means of seeking to realise its human rights goals.
Achievable objectives are vital for effective foreign policy of any sort.
Secondly, Australia's policies must be based on a clear analysis of the way in which human rights concerns fit with Australia's interest in maintaining security and enhancing prosperity.
This means that the Government's policy approaches will necessarily be developed as part of a comprehensive treatment of foreign policy and implemented in the context of the overall relationships that Australia has with other countries.
The specific goals which flow from these considerations include a commitment to promoting basic economic and social rights such as maternal health care and primary education.
Similarly, there are key civil and political rights, such as adherence to the rule of law and freedom of speech and assembly which this Government will seek to foster and which are critical to both individual freedom and long term social stability. Part Two: Practical Human Rights Policies
Having outlined the basic principles which underpin Australia's approach to human rights I want to explain how Australia translates these principles into practice.
This Government's approach to human rights has one hallmark, and that is a commitment to achieving practical outcomes which actually improve the lives of individuals abroad.
We aim to make a difference on human rights, rather than merely to posture.
The Government is employing a variety of approaches to human rights issues to achieve the best possible results. They encompass development co-operation, public diplomacy and private diplomacy. Development Cooperation
The first of the ways Australia promotes human rights is through its development cooperation program. Australia's aid program not only promotes economic, social and cultural rights but also civil and political rights.
The Australian Government recognises that the development of these rights must be safeguarded and nurtured by appropriate institutions and structures.
Australia's development cooperation program, through AusAID, will continue to support democratic development and human rights institution building in developing countries.
The Government is particularly supportive of helping countries in the Asia Pacific region to develop strong, independent national human rights institutions. These are an important means of promoting adherence to international human rights standards.
…At the World Congress Against the Commercial Sexual Exploitation of Children in Stockholm in August, Australia re-affirmed its commitment to eliminating child prostitution. To that end, AusAID is providing significant funding in support of ECPAT - the Australian NGO concerned with ending child prostitution, pornography and trafficking in Asian tourism.
Peace and human rights are also inextricably linked. Nowhere has this been more graphically illustrated than in Africa where, in recent years, some of the world's worst human rights atrocities have been carried out in the context of civil war. In recognition of this, the Australian Government recently made contributions both to the initiative of former Tanzanian President Nyrere to prevent war in Burundi, to the OAU Peace Fund and granted $2.6 million to Australian NGOs to carry out relief work during the current crisis in the Great Lakes region.
In the area of economic, social and cultural rights, the Government is making additional efforts to ensure that development assistance promotes an environment conducive to equitable growth, as well as effectively targeting basic needs and poverty alleviation.
In this endeavour, the role of NGOs is obviously very important and the Government wishes to see NGOs continue to make their valuable contribution in the aid program. Landmines
A second policy area where the Australian Government has promoted human rights is the issue of anti-personnel landmines. The impact of these weapons involves not only the immediate human tragedy; it also undercuts the overall development of those areas affected, by diverting both financial and human resources which could otherwise be employed in providing basic health and education.
In April of this year, along with my colleague the Minister for Defence, Mr McLachlan, I was delighted to announce that Australia supported a global ban on the production, stockpiling, use and transfer of anti-personnel landmines and
implemented a unilateral suspension on their use by the Australian Defence Force.
…I am pleased to note that, since the announcement of our new policy, the international momentum in favour of a global ban on anti-personnel landmines has grown considerably.
Fifty countries, including Australia, attended the Ottawa strategy conference of pro-ban states in October. One hundred and forty-one countries voted in favour of a resolution, co-sponsored by Australia, at this year's UN General Assembly which called for the vigorous pursuit of an effective, legally-binding international ban agreement.
We are also looking at ways in which improved de-mining technology can speed up the rate and scale of the de-mining process, and to that end I registered at the UN General Assembly in September, Australia's interest in working with other
countries to improve de-mining technology, with a view to increasing the rate and scale of the de-mining process. I am proud of the work we have done on this issue. Human Rights Representations
A third way the Australian Government will work to promote human rights is the important area of human rights representations.
The Australian Government remains committed to continuing bilateral representations on both individual cases and general situations as an important means of improving human rights observance overseas and to give appropriate expression to concerns that are felt in Australia.
Most of the cases raised are based on Amnesty International "Urgent Action" cases which the Government pursues on behalf of the Amnesty International Parliamentary Group.
Australia will thus maintain a vigorous human rights diplomacy, both multilaterally and bilaterally. Australia will continue to make representations through our network of Embassies and High Commissions overseas on cases of human rights' concern brought to our attention by Amnesty International.
These representations strengthen Australia's profile as a concerned and active country in the human rights field. Diplomatic Approaches
Beyond development assistance and representations on individual cases, the Government has available to it the various tools of diplomacy.
The Australian Government is committed to an active diplomacy aimed at improving the observance of international human rights standards.
The Australian Government is using both public and private diplomacy to express Australia's concerns and urge action to resolve problems, and I and senior officials in my Department have spoken out consistently on a range of human rights concerns.
Most fundamentally, the Australian Government seeks to be effective in its human rights work. In practice that means that we have to choose what will be the most effective method of improving human rights conditions in any particular case.
In some cases that will mean strong public statements and in others that will mean that the bulk of the work must be done in private. What I will not do though is engage in sloganeering just for the sake of winning a few pats on the back, because the result will often be to limit Australia's influence.
The nature of international politics is such that at the Government to Government level a demand will often produce a reaction which is counter-productive. This is not always the case but it is a fact of the landscape and one which must be taken into account in deciding upon the most effective approach in any one case.
Nevertheless there are cases where a mix of strong public diplomacy and private diplomacy is the optimal approach.
… The Australian Government is also engaged in intensive regional diplomacy with our Asian neighbours. During the ASEAN Regional Forum in July I had the opportunity to meet with my Burmese counterpart and put forward Australia's concerns about human rights, democracy and political detainees in what can only be described as direct and unqualified terms.
I am pleased that it was with the encouragement of an Australian proposal, that, for the first time, there was discussion of Burma's human rights' record during the formal session of the ARF.
I believe that ASEAN is the key to human rights progress in Burma. The single most important thing Burma is seeking from the international community is membership of ASEAN.
As such I am convinced that Australia must work for change in Burma by working closely with ASEAN neighbours to influence Burma. If we set ourselves at odds with ASEAN over this issue I am convinced that we will lose the best chance we have to influence developments in Burma.
That is why the Government has maintained the "benchmarks approach" in relation to Burma which links greater bilateral contact with moves toward greater regard for human rights.
Significantly, the Australian Government will continue the ban on exports of defence and defence related goods to Burma and our bilateral development assistance program will remain suspended.
I will not underestimate the challenge in seeking to bring about reform in Burma. But I do say that the touchstone of our action has been to take those steps which we believe will genuinely encourage practical change in Burma.
In dealing with particular issues I have previously said that I believe it is generally best not to lecture but to seek results in human rights diplomacy. I believe a good example of this has been the Government's approach to East Timor which aims to help bring about improvements there. … Part Three: Looking to the Future: Initiatives
In looking to the future the Australian Government is involved in three initiatives which will make practical, long term contributions to human rights and democracy at a structural level.
The first of these is the support we are providing for the development of Asia-Pacific human rights arrangements. This is important because the establishment of a human rights framework and institutional infrastructure in the Asia Pacific will bring our region in line with Africa, the Americas and Europe.
Our support is being developed through the informal Asia Pacific Forum of National Human Rights Institutions which was established in June this year. The Australian Government is providing $225,000 over three years to enable Australia's Human Rights and Equal Opportunity Commission to provide a secretariat for the Forum.
The second Government initiative I would point to is the proposal to establish a new Centre for Democratic Institutions which would focus on the promotion of democracy and democratic change, especially in the Asia Pacific region. My Department is currently developing detailed proposals for the Centre in conjunction with NGOs.
A third initiative to which I want to lend my strong personal backing is the establishment of an International Criminal Court.
I believe an International Criminal Court would be an important step forward for the international community in dealing with the most serious crimes of international concern such as genocide, war crimes and crimes against humanity.
That is why I want to make this one of the Government's prime multilateral and human rights objectives in the next two years. The world needs an International Criminal Court and Australia is uniquely placed to help deliver it. Conclusion
In concluding, I want to commend the role of human rights monitors in the ongoing world-wide campaign to promote and protect human rights. In that context I believe there are two important things to note.
First, to recognise that governments and NGOs have different but complementary roles. The special capacity for witnessing and advocacy which rests with NGOs cannot easily be replicated by government. However, government has a capacity for representation and direct diplomacy, which although often less public, is usually not within the power of NGOs.
Secondly, there will at times be disagreements over both approaches and objectives, as there are within the non-government community itself. That is simply a feature of healthy democracy.
Let me reiterate that I both invite contact and want to work closely with the NGO community on the topic of how we can make a genuine contribution to the promotion and protection of human rights.
This Government is focused on practical and effective approaches to the promotion of human rights.
Ultimately, all of these approaches flow from a coherent philosophy which recognises that human rights are an integral part of Australia's interests and that Australia has a responsibility in its foreign policy to promote the dignity of the
individual.
On 10 December 1996, in response to a question without notice from Senator Christopher Ellison the Minister representing the Minister for Foreign Affairs, Senator Robert Hill, provided the following information to the Senate concerning the government’s approach to the promotion of human rights (Senate, Debates, 10 December 1996, p 7032):
I particularly bring to your attention a number of new initiatives in this area. We are supporting the establishment of an informal Asia-Pacific forum of national human rights institutions. We will provide $250,000 over three years, through the Australian Human Rights and Equal Opportunity Commission, for the establishment of a secretariat to the forum. …
We are strongly supporting the establishment of an international criminal court. We welcome the opportunity on International Human Rights Day to reiterate our commitment, in which we trust we are joined by all honourable parliamentarians within this institution.
On 19 November 1996, the Parliamentary Secretary to the Treasurer, Senator Ian Campbell provided the Senate with the following information during debate on the Workplace Relations and other Legislation Amendment Bill 1996 (Senate, Debates, 19 November 1996, p 5601):
…I would like to state clearly that the Australian government is actively working towards the ratification of International Labour Organisation convention 147 which deals with minimum standards for merchant shipping. In accordance with the policy of both the previous and current governments, Australia does not ratify ILO conventions until law and practice are in compliance with the terms of the convention.
We are currently working on ensuring that the law and practice in this area does so comply. This will assist efforts to ensure that the human rights of seafarers are properly protected. Senator Murray has also raised the issue of criminal conduct on board foreign vessels. It needs to be understood that Australian law can apply to offences committed on foreign ships.
On 16 September 1996, the Minister for Industrial Relations, Mr Peter Reith answered a question on notice from Mr McMullan. Text of the question and answer follow (House of Representatives, Debates, 16 September 1996, p 4393):
Mr McMullan—1) Which Australian States have agreed to the ratification of the International Labour Organisation (ILO) Convention 155 concerning Occupational Health and Safety (adopted by the ILO in 1981).
2) Which States have not agreed to the Convention’s ratification and what was the reason given for withholding agreement.
3) Will the Government seek the agreement of the remaining State or States.
4) Will the Government ratify the Convention when agreement is reached.
5) Will the Government proceed with ratification in the event of a majority of State governments agreeing.
Mr Reith—The answer to the honourable member’s question is as follows:
1) All States and Territories, with the exception of Tasmania, have formally agreed to ratification of Convention 155.
2) Tasmania advised the Commonwealth on 17 December 1992 that State law and practice did not fully comply with the Convention, and indicated that consideration was being given to establishing compliance.
3) It is a matter for Tasmania to decide whether to agree to ratification.
4) If all States and Territories agree, the Government will consider whether ratification is appropriate.
5) No. The Government does not propose to depart from the accepted practice of only ratifying an ILO Convention when formal agreement has been received from all relevant jurisdictions and there is compliance with the requirements of the Convention.
On 10 October 1996, the Minister for Industrial Relations, Mr Peter Reith answered a question on notice from Mr Martin Ferguson. Text of the question and answer follow (House of Representatives, Debates, 10 October 1996, p 5267):
Mr Ferguson—
2) What conventions and recommendations were adopted by the Conference.
3) How did the Australian (a) Government, (b) employers’ and (c) workers’ delegates vote on each convention and recommendation.
4) Which ILO conventions has Australia ratified since 1994 and on what dates was each ratified.
Mr Reith—The answer to the honourable member’s question is as follows:
2) A Convention and Recommendation concerning Home Work were adopted by the Conference.
3) (a) The Australian Government abstained from voting on both the Convention and the Recommendation concerning home work.
(b) The Employers’ Delegate also abstained from voting on the instruments.
(c) The Workers’ Delegate voted in favour of the instruments.
4) Since 1994 Australia has ratified the following ILO Conventions. All three were ratified on 29 August 1995.
Convention No. 69, Certification of Ships’ Cooks, 1946
Convention No. 73, Medical Examination (Seafarers), 1946
Convention No. 166, Repatriation of Seafarers (Revised), 1987
On 9 December 1996 the Minister for Foreign Affairs, Mr Alexander Downer, in response to a question without notice from Mr Paul Zammit, provided the House of Representatives with the following information concerning the government’s position on the inclusion of labour rights and issues in trade agreements and the use of the World Trade Organisation to advance these rights and issues (House of Representatives, Debates, 9 September 1996, p 7984):
… I first want to make it clear to the House that Australia supports the pursuit of an adherence to core labour standards consistent with universal civil, political, economic, social, cultural and human rights standards.
The government is not convinced that the World Trade Organisation is the place to deal with this issue. The WTO’s primary function is to advance multilateral trade issues. There is the potential that a so-called social clause could be an excuse for protectionism and there is a risk that the issue would distract from other WTO priorities as well as seriously divide the organisation.
An authoritative study released by the OECD this year found no empirical evidence linking low labour standards to unfair trade advantages. The Australian tripartite working party on trade and labour standards commissioned by the previous government agreed that there was currently no international consensus for the inclusion of a social clause in the WTO.
Australia looks to the International Labour Organisation, which regards labour standards as being its core business, as having the central role in strengthening adherence to internationally recognised labour standards. The ILO has established a working party to examine the social dimensions of international trade liberalisation, and the Australian government will deal with this matter through that forum. …
On 4 April 1996, in Geneva, a statement was made on behalf of the Australian delegation to the Fifty-Second Session of the Commission on Human Rights. The following is an extract of that statement concerning arbitrary detention and juveniles in detention:
The working group on arbitrary detention states in its report that in many countries the main causes of arbitrary detention are the exercise of powers pertaining to states of emergency, the lack of certainty in the description of criminal acts and the establishment of special or emergency courts. The working group found that such emergency courts do not act impartially or independently, nor do they apply the rules of due process of law. These courts are therefore unable to guarantee the right to a fair trial, one of the basic and fundamental human rights enshrined in the universal declaration.
On the basis of four years experience, the working group has made some important recommendations. One of these is that reports requested of states by the group must be delivered within the stipulated 90 day period and must contain full and detailed information. If the report has not been received on time, the working group may on the basis of all data compiled, take a decision. Australia calls on all states to support the working group’s recommendations and to recognise the importance of initiatives aimed at strengthening the rule of law and ensuring the impartiality of the judiciary. We believe these initiatives will assist in the prevention of arbitrary detention. …
The Secretary-General’s report, entitled “Human Rights in the Administration of Justice, in particular of Children and Juveniles in Detention”, called upon all states to give high priority to the promotion and protection of the rights of children and juveniles in the administration of justice.
The report urges states to take into account in their national legislation and practice, and to disseminate widely, the United Nations standard minimum rules for the administration of juvenile justice (the Beijing rules), the United Nations guidelines for the prevention of juvenile delinquency (the Riyadh guidelines) and the United Nations guidelines for the protection of juveniles deprived of their liberty. The report also urged states to take appropriate steps to ensure that compliance with the principle that depriving children and juveniles of their liberty should only be used as a measure of last resort.
Australia welcomes these recommendations and encourages states to adhere to these fundamental rules in dealing with children and juveniles in detention within their jurisdiction. We acknowledge that there are issues that Australia itself must address in this context—and we are committed to doing so. Australia also welcomes any opportunity to improve regional and international cooperation designed to further protect the rights of children and juveniles in detention.
On 21 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Daryl Melham in the House of Representatives. The text of the question and answer follow (House of Representatives, Debates, 21 August 1996, p 3493):
Mr Melham—
1) Will he bring up-to-date the information contained in the answer to question No. 1238 (Hansard, 28 June 1994, page 2175) on maintenance and child abduction.
2) Has he initiated discussions with other countries on these issues; if so, (a) with which countries, (b) upon what dates and (c) with what results.
Mr Downer—The answer to the honourable member’s question is as follows:
1) Since 2 June 1994, the following states have become parties, by accession, to the 1956 UN Convention on the Recovery Abroad of Maintenance, done at New York on 26 June 1956:
Ireland—26 October 1995; Uruguay—18 September 1995
Since 2 June 1994, the following states have accepted the Statute of the Hague Conference on Private International Law, done at The Hague on 31 October 1951:
Croatia—12 June 1995 (by succession); Malta—30 January 1995
Following is a list of states which, being members of the Hague Conference, have ratified, accepted or approved the Convention on the Civil Aspects of International Child Abduction, done at The Hague on 25 October 1980, or, not being members of the Hague Conference, have acceded to the Convention, since 2 June 1994:
Since 2 June 1994 the following accessions to the Convention on the Civil Aspects of International Child Abduction have been accepted by Australia:
Bahamas, Honduras and Panama- 13 June 1994 with effect 1 Sep 1994
Chile and Slovenia- 17 Aug 1994 with effect 1 Nov 1994
Cyprus and Saint Kitts & Nevis- 18 Aug 1995 with effect 1 Nov 1995
Zimbabwe- 18 Jan 1996 with effect 1 April 1996
(2) I have not initiated any discussions with other countries in relation to the 1956 UN Convention on the Recovery Abroad of Maintenance. Issues relating to maintenance are the responsibility of the Attorney-General. I understand that the Attorney-General’s Department has been undertaking negotiations by correspondence on bilateral arrangements concerning maintenance with Germany, Norway, Finland, Greece and Quebec (Canada). New bilateral maintenance arrangements have been agreed with the Czech Republic, the Republic of Ireland and the Slovak Republic.
In relation to the Convention on the Civil Aspects of International Child Abduction, since 1992 the Department of Foreign Affairs and Trade has regularly made representations to other countries encouraging them to become parties to the Convention in order to facilitate the speedy resolution of any future child abduction incidents in countries in our immediate region, or countries which have been major migrant source countries.
(a) Australian posts have made representations to the following countries in the Asia/Pacific region: the Philippines, Brunei, Indonesia, Malaysia, Thailand, Singapore, Japan, South Korea, Hong Kong, Fiji, Papua New Guinea, Vanuatu, Tonga, the Solomon Islands, the Federated States of Micronesia, Western Samoa, Vietnam, Cambodia, Laos, Burma, India, Sri Lanka, Bangladesh and Pakistan. Representations have more recently been made to the following countries with high numbers of dual citizens in Australia: Turkey, Lebanon, Russia and South Africa.
(b) Representations have been made in September 1992, November 1993, April and September 1994 and February and March 1996, although not all of the countries listed above have received representations on all of these occasions.
(c) The process of representations encouraging countries to become parties to the Convention on the Civil Aspects of International Child Abduction has been protracted. For many countries this is a new and unfamiliar issue and does not carry the same degree of priority or domestic urgency as in Australia. For example, some countries, particularly those having a religious basis to family law, view the Convention as inappropriate to their interests. Nevertheless, we have recently received indications that three of the countries listed above are positively disposed to the Convention and are likely to become parties once domestic legislation has been implemented, and others may become more disposed to the Convention if representations by posts are continued. The process of enactment of domestic legislation, followed in some cases by parliamentary approval of accession, may however cause further delays in those countries referred to above.
On 21 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Laurence Brereton in the House of Representatives. Extracts of the question and answer follow (House of Representatives, Debates, 21 August 1996, p 3497):
Mr Brereton—To what extent are Australia and New Zealand sharing or contemplating membership of the UNESCO and Council of Europe conventions on education?
Mr Downer—The answer to the honourable member’s question is as follows:
Australia is a signatory to the following Conventions of the United Nations Educational Scientific and Cultural Organisation (UNESCO):
Convention against Discrimination in Education (1960) and a related Protocol instituting a Conciliation and Good Offices Commission for the Settlement of Disputes arising between parties to the Convention (1962)
Convention on the Recognition of Studies, Diplomas and Degrees concerning Higher Education in the States belonging to the Europe Region (1979)
Regional Convention on the Recognition of Studies, Diplomas and Degrees in Higher Education in Asia and the Pacific (1983)
New Zealand is a party to the 1960 Convention but is not a party to the other three.
UNESCO and the Council of Europe have drafted a joint Convention on the Recognition of Qualifications concerning Higher Education in the European Region. Australia has been invited to become a party to the joint Convention by virtue of being a party to the existing UNESCO Convention on the recognition of qualifications in the European region. The draft has been circulated to the States/Territories for comments as part of nationwide consultations. The draft joint Convention will be discussed at the June 1996 session of the UNESCO Regional Committee, to be held in Rome, and will be tabled for adoption at a UNESCO/Council of Europe conference in 1997.
On 22 August 1996, in response to a question on notice from Mr Daryl Melham the Minister for Foreign Affairs, Mr Alexander Downer, provided the House of Representatives with the following information concerning the second optional Protocol to the 1996 International Covenant on Civil and Political Rights aiming at the abolition of the death penalty (House of Representatives, Debates, 22 August 1996, p 3627):
In the recorded vote on Resolution 44/128 (Elaboration of a Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty) the following 26 countries voted against:
Afghanistan, Bahrain, Bangladesh, Cameroon, China, Djibouti, Egypt, Indonesia, Iran, Iraq, Japan, Jordan, Kuwait, Maldives, Morocco, Nigeria, Oman, Pakistan, Qatar, Saudi Arabia, Sierra Leone, Somalia, Syria, United Republic of Tanzania, United States, Yemen.
Malaysia, which was absent, later advised the Secretariat that it had intended to vote against.
The latest information available to the Department of Foreign Affairs and Trade (United Nations Centre for Human Rights document: Status of the International Human Rights Instruments as at 1 May 1996) indicates that no countries referred to in part (1) have acceded to the protocol.
On 28 August 1996, in Stockholm, H.E. Ms Judith Pead made a statement to the World Congress Against Commercial Sexual Exploitation of Children. The following is an extract of the statement:
I would like to highlight some key issues in the fight to end all forms of commercial sexual exploitation of children.
First, specific legislative measures targeting commercial sexual exploitation o children, combined with effective law enforcement, play a key role. A growing number of countries have introduced laws enabling the prosecution of their citizens for sex crimes committed outside their countries.
Australia enacted the crimes (Child Sex Tourism) Amendment Act in 1994 to deal with the activities o Australian Paedophiles who engage in the sexual exploitation of children overseas. The Act has also effectively targeted organisers of overseas tours for the purpose of engaging in sexual activity with minors. Prosecution under the laws of the country where the offences took place should always be the first option. To this end we encourage the strengthening of cooperative work between national governments and their police forces, and coordination and information sharing bilaterally and through agencies such as Interpol. However, when persons are not charged under local laws, extraterritorial laws have an important role to play. In addition, the deterrent and awareness raising effects of these laws can be significant. We encourage governments who have not yet done so to consider enacting such laws.
Development assistance can play an important role in supporting government and community efforts to address the underlying causes of the commercial sexual exploitation of children. It can also provide rehabilitative measures to help children who are suffering or have suffered form exploitation. Such measures include flexible education programs and primary health care, as well as temporary shelter, legal and medical assistance.
In addition, technical assistance programs can allow countries to share expertise. The Australian Federal Police has made a contribution within the Asia-Pacific region though the provision of training to specialised law enforcement units. While development assistance can help in all these areas, it is crucial that recipient governments give high priority to issues of child sexual exploitation, education and poverty alleviation, in shaping national policy and when framing requests fo4 technical assistance.
Another key concern which must be addressed is the trafficking of minors for commercial sexual exploitation both within and across borders. Following recommendations by the Australian Parliament, relevant agencies are in the process of developing a comprehensive national approach which will bring the full weight of the criminal law on those involved in such trafficking.
The increasing availability of child pornography via new technologies such as the internet is a complex issue that creates new challenges we all must face. Australian is moving to develop a national regulatory framework governing online services, which responds, in a balanced and realistic way, to the concerns of industry and the community.
Education, and in particular community education about children’s rights, is also a crucial part of preventative strategies. In this context, the decade for human rights education is an important initiative. A robust system of quality, human rights education would be a worthy legacy to bequeath our children. It would also b a practical contribution to the protection of future generations from the scourge of poverty and exploitation. …
We must also bear in mind, in addressing these problems, the particular disadvantage faced by the girl child. The platform for action adopted by the UN Forth World Conference on Women highlighted the need to protect and promote the rights of the girl child, and we must continue to focus on the implementation of these commitments under the convention on the rights of the child.
In a news release of 29 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer, welcomed the adoption in Stockholm on the previous evening of a Declaration and Agenda for Action Against the Commercial Sexual Exploitation of Children. Mr Downer noted:
The Declaration and action plan is a positive step towards protecting children against the tragic effects of child sexual abuse for profit.
The Australian Government is one of over 140 governments participating alongside NGOs and international organisations at the Stockholm World Congress, which we see as an important initiative for focusing international attention on the serious issues of the commercial sexual exploitation of children.
In preparing for Australian Government participation in the World Congress, we have had extensive interdepartmental consultations and discussions with the States and Territories, as well as close consultation with non government organisations such as ECPAT (End Child Prostitution in Asian Tourism) and Defence for Children International.
Key issues being discussed at the Congress include child prostitution, child sex tourism, the exploitation of children in pornography, particularly via new technologies such as the Internet and the terrible trade in children within and across borders for the purposes of prostitution. Targeting poverty alleviation to save children from being driven or sold into prostitution because of desperate economic circumstances is another key issue being addressed.
The breadth of expertise in the Australian government delegation is a recognition of the need to adopt a multi-disciplinary approach to the issue of commercial sexual exploitation of children, across law enforcement, law reform, development assistance, health and family services and immigration services.
The States and Territories are also represented on the Australian delegation, reflecting the reality that many key policies and programs necessary to combat the sexual exploitation of children are matters of State and Territory responsibility, including child protection services, laws against child pornography and law enforcement by State Police services.
I congratulate the World Congress on achieving the commitment of Governments, NGOs and international organisations to work together to combat the commercial sexual exploitation of children. Last night’s Declaration demonstrates the international community’s determination to achieve positive and practical outcomes from the important work taking place in Stockholm this week.
On 21 November 1996, Senator Ian Campbell presented the government’s response to the report of the Joint Committee on Foreign Affairs, Defence and Trade entitled ‘Human rights and progress towards democracy in Burma’ to the Senate. Extracts of the response follow (Senate, Debates, 21 November 1996, p 5838):
…
CHAPTER 2: HUMAN RIGHTS—GENERALRecommendation 1
The Australian Government urge the Government of Burma to ratify the major human rights covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESCR). Response
Agreed Comment
Accession to the major international human rights instruments, including the ICCPR and ICESCR, represents a substantial commitment by member states to the promotion and protection of fundamental human rights. Australia has strongly encouraged universal ratification of human rights treaties as the best means of securing the implementation of established human rights standards. At the World Conference on Human Rights in Vienna, Australia promoted the inclusion of appropriate language in the Vienna Declaration and Program of Action on the importance of universal ratification. Australia has also supported United Nations efforts to promote universal ratification by co-sponsoring appropriate resolutions at the UN General Assembly (UNGA) and UN Commission on Human Rights (CHR).
In the specific case of Burma, Australia is a traditional co-sponsor of resolutions on human rights in Burma adopted by both UNGA and CHR which specifically call on the Government to ratify ICCPR, ICESCR as well as the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT).
In an apparent response to international pressure, including that of Australia, Burma has now withdrawn the reservations it had entered concerning the Convention on the Rights of the Child.
On a bilateral level, the Ambassador in Rangoon has made a practice of taking all appropriate opportunities to urge the Government of Burma to ratify the major human rights covenants, stressing the importance Australia and the international community accord these instruments. Australia has made representations on the importance of treaty ratification to a number of countries in the region in the context of promoting greater effectiveness of the human rights treaty system. Further bilateral representations in Burma and other Asia Pacific countries on universal ratification of key UN human rights instruments are being planned. … Recommendation 10
The Australian Government urge the Government of Thailand to:
ratify the international human rights conventions relevant to the issue of trafficking in women, particularly the ICCPR. …
The Government is aware of international meetings of non-government organisations and individuals concerned about the growing international traffic in women were held in Manila and Brussels in March 1993. Both meetings sought a new international convention on trafficking in women to replace the 1949 Convention on Prostitution, which now is seen as outmoded. The Government is considering what further work might be done to develop a new Convention on trafficking which makes the distinction between forced prostitution and prostitution entered into voluntarily. … Recommendation 12
The Australian Government consider accession, perhaps with a reservation on Article 6, to the 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others; … Response
Agreed in part Comment
Australia has not ratified the 1949 Convention for the Suppression of Traffic in Persons and the Exploitation of the Prostitution of Others as we believe that some of the views expressed on the issue of prostitution are outmoded.
With regard to other instruments relevant to trafficking in women, Australia has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CROC) and supports the establishment of an Optional Protocol to the CROC on the sale of children, child prostitution and child pornography. … Recommendation 18
In responding to demands for self-determination in Burma, the Australian Government and its ASEAN dialogue partners include on their agenda for discussions between Foreign Ministers and between Heads of Government the importance of protecting minority rights as the most effective way of ensuring the stability of the state. Response
Agreed in part Comment
The concept of self-determination is an evolving one at international law. The Australian Government’s view is that self-determination encompasses the continuing right of peoples to decide how they should be governed and to participate in the political process. It is neither a static nor an absolute concept, but it would not, for example, ordinarily involve the right to secede or otherwise realise separate sovereignty where the peoples concerned are able to participate meaningfully in the government of the State in which they live—particularly where the participation and fundamental human rights of indigenous peoples as well as their special position are respected.
CHAPTER 6: ENGAGEMENT OR ISOLATION Recommendation 26
Given that the United States, Japan, the European Union and the Commonwealth of Nations encompass most of the developed and the democratic states of the world, the Australian Government should continue to work bilaterally and through all relevant multi-lateral forums to gain an acceptance of the need for political reform as a prelude to investment in Burma or development assistance to Burma. Response
Agreed in part Comment
The Australian Government supports dialogue with the SLORC and does not consider that isolation of the regime makes sense. Accordingly, it does not advocate further sanctions against the regime, for which there would be little international support in any event. The Government hopes, though, that other Governments, in their exchanges and dialogue with the Burmese Government, will use the opportunity to convey that political reforms and an improved human rights performance would not only be worthwhile for their own sake but would facilitate Burma’s re-integration into the regional and international community. Recommendation 27The Australian Government continue to press the ASEAN countries to:
(a) maintain the constructive aspects to their engagement policy by pressing the Government of Burma towards further reform—the end to forced labour, the release of political detainees, dialogue with Aung San Suu Kyi and the liberalisation of the procedures of the Burmese National Convention, established to draw up a new constitution; and
(b) that these reforms should precede the entry of Burma into ASEAN.
Response
Agreed in part Comment
… The Australian Government’s view is that the issue of when and under what conditions Burma should join ASEAN is a matter for ASEAN members to decide. Whether or not Burma is a member of ASEAN, the Australian Government will continue to make known its concerns about the situation there, and encourage political and human rights reform. … Recommendation 37
The Australian Government should suggest the value of a regional forum for the examination of the problems associated with modern government with a view to developing strategies and programs of assistance for the enhancement of good government. Such issues as systems of bureaucracy and administrative practices, legal services and court systems, parliamentary practice or policing might be addressed in this way. Response
Agree to explore further dialogue option. Comment
The Government seeks to establish international mechanisms for contact and dialogue wherever possible. The Minister for Foreign Affairs and other ministers regularly discuss human rights and good governance issues in bilateral meetings in the region. As well, the two delegations to China and the Australian Parliamentary Consultative Delegation’s visit last year to Vietnam have succeeded in establishing dialogue on a number of issues of mutual concern, including that of human rights.
The Government also gives a high priority to encouraging the establishment and strengthening of national human rights institutions in countries in the region. Through the Human Rights and Equal Opportunity Commission, Australia has provided a substantial degree of cooperation and technical assistance on national human rights institutions to a number of countries including the Philippines, Indonesia, Thailand and Papua New Guinea. As well, the Government has contributed $300,000 to the UN Voluntary Fund for Technical Cooperation for the purpose of strengthening the domestic infrastructures which support human rights and, in particular, national human rights machinery in the Asia-Pacific region.
The Government has long supported the development of Asia-Pacific human rights arrangements which would complement the UN human rights machinery and national institutions established in a number of countries in the region for the promotion and protection of human rights. In this context, the Government has been, over recent years, in consultation with other governments on the prospects for a structured dialogue, which might eventually extend to regular meetings at a ministerial level. The Asia-Pacific is the only region of the world which is still without such an arrangement. The Government believes a regional arrangement would foster greater understanding, cooperation and maintenance of universal human rights principles amongst the diverse and varied social systems and cultures in the Asia-Pacific. The Government’s experience on this subject suggests that although there is interest by many countries of the region in closer cooperation on human rights some of them are not ready to formalise this and that further work will be required before such an arrangement could be set in place.
To advance work on a regional arrangement, three UN-sponsored meetings have been held, in Manila in 1990, Jakarta in 1993 and Seoul in 1994. At the meeting in Seoul, while there was no consensus on the establishment of a formal regional mechanism, there was a general desire that discussions should continue. A resolution supporting regional activity was introduced by the Republic of Korea and supported by Australia at the 1995 session of the UN Commission on Human Rights and was adopted by consensus. At a meeting of national human rights institutions held in Manila in April last year, participants, who represented national institutions not governments, affirmed their support for regional cooperation in the promotion and protection of human rights. The Government considers the strengthening of the networks that are developing between national commissions in the region will assist in the establishment of a regional human rights body. … RESPONSE TO THE DISSENTING REPORT OF SENATOR MARGETTS Recommendation 6
That the Australian Securities Commission be given a reference to conduct an inquiry with a view to creating a code of practice covering such matters as international law, international treaties and conventions, human rights and environmental obligations for Australian businesses operating outside Australia. Response
Agreed in part Comment
… There are two existing multilateral codes of conduct for transnational corporations covering human rights and environmental matters—the ILO Tripartite Declaration of Principles for Multinational Enterprises and the OECD Guidelines for Multinational Enterprises. These codes are comprehensive. In this context, there are arguments to suggest that a code that would “add value” may be targeted at specific practices (eg: forced labour) and not cover the whole field.
The Government sees some value in a voluntary code and would support and assist business in developing such a code. However, the Government has serious misgivings about the desirability or the enforceability of a mandatory code. If a mandatory code is not being contemplated here, then we would have reservations about the Securities Commission being the appropriate body to create the code. Any movement in this direction should take full account of the importance of industry involvement in the development of any code. …
On 12 December 1996, Senator Eric Abetz presented the seventh report of the parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund to the Senate. The report focussed on the question of whether the proposed amendments to the Native Title Act 1993 offended the Racial Discrimination Act 1975. It contained the following passage (Senate, Debates, 12 December 1996, p 7351):
… In its examination of this matter the Committee heard an alternative view to the effect that the Convention on the Elimination of All Forms of Racial Discrimination and the RDA require ‘benign discrimination’ or measures ensuring ‘substantive equality’. The Committee’s seventh report argues against this alternative view. Not only is it confronted by the fact that the courts have not adopted such a view, but it depends mainly on a footnote to a page in the High Court’s judgement in Western Australia v. the Commonwealth (1995). The Committee cannot accept that the High Court relied on the alternative view in that case. It also cannot accept the argument of the alternative view that it is likely to be adopted by the High Court in the near future.
On 4 April 1996, in Geneva, a statement was made on behalf of the Australian delegation to the Fifty-Second Session of the Commission on Human Rights. The following is an extract of that statement concerning the proposed Convention Against Torture:
Australia welcomes the completion of a first reading by the working group charged with drafting a protocol to the convention against torture at its fourth session, but notes that a number of fundamental provisions of the text remain in square brackets. Although progress has been slow, the negotiations at the fourth session were conducted in a positive and constructive atmosphere and some achievements were made. We believe that the next session of the working group will be the real test of whether or not a worthwhile protocol can emerge.
While Australia has taken an active and pragmatic role in the working group, we do have some concerns with the current draft. One of these concerns is that the high cost associated with the proposed sub-committee will divert funds from other human rights programmes in the centre for human rights. Another is the potential for duplication of existing provisions of the convention against torture. For example, article 20 of the convention already permits the committee against torture to visit places of detention with the agreement of the state party in cases where the committee has received reliable information suggesting that torture is being systematically practised. This should not be merely repeated in the protocol. We believe that if the protocol is to have meaning the powers of the committee in this area should be extended.
On 3 December 1996, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Harry Jenkins concerning diplomatic relations with the Former Yugoslav Republic of Macedonia. Text of the question and answer follows (House of Representatives, Debates, 3 December 1996, at p 7611):
Mr Jenkins—
1) Is the Government considering changing the basis of Australia’s diplomatic relations with the Former Yugoslav Republic of Macedonia to resident accreditation; if so, is there a timetable for implementation of the change.
2) Will he, or his department, meet the representative of the Government of the Former Yugoslav Republic of Macedonia to discuss the establishment of an embassy of the Former Yugoslav Republic of Macedonia in Australia.
—The answer to the honourable member’s question is as follows:
1) At the time Australia and the Former Yugoslav Republic of Macedonia established non-resident diplomatic relations in October 1995, it was agreed that the question of resident representation would be kept under review. At the direct request of the Government in Skopje, Australia is now re-examining this issue, but no final decision has been taken.
2) The Australian Ambassador to the Former Yugoslav Republic of Macedonia, resident in Belgrade, visits Skopje on a regular basis to discuss bilateral issues, which have included the establishment of an embassy of the Former Yugoslav Republic of Macedonia in Australia. I recently had talks with a senior FYROM Foreign Ministry official in Canberra in which the embassy issue was discussed. It is a matter of some importance to the Government in Skopje and to the Macedonian community in Australia.
Current information concerning treaties which Australia has signed, ratified or acceded to is available from:
Treaties Secretariat
ILD
Department of Foreign Affairs and Trade
Barton ACT 0221
Alternatively, the information can be found at www.austlii.edu.au/au/other/dfat.
On 2 May 1996 the Minister for Foreign Affairs, Mr Alexander Downer, in the House of Representatives, made the following Ministerial Statement concerning reform of the treaty making process (House of Representatives, Debates, 2 May 1996, p 231):
It gives me particular pleasure that my first statement to this House as Minister for Foreign Affairs should be to inform the parliament of the government’s action to reform the treaty-making process. …
The changes will provide proper and effective procedures enabling parliament to scrutinise intended treaty action. Importantly, they will also overcome what this government considers to have been a democratic deficit in the way treaty-making has been carried out in the past. The measures will ensure that state and territory governments are effectively involved in the treaty-making process through the establishment of a Treaties Council. They will also ensure that every Australian individual and interest group with a concern about treaty issues has the opportunity to make that concern known. Consultation will be the key word, and the government will not act to ratify a treaty unless it is able to assure itself that the treaty action proposed is supported by national interest considerations.
In considering policy options, the government has taken careful account of national and international considerations. Among the latter, it is vital to note that trade flows, environmental concerns, human rights, to name only a few of an increasing array of such issues, can only be effectively managed and handled through international agreement. This means that treaties, the fundamental instruments of international law, are an increasingly important component of contemporary international relations and of Australia’s own legal development. Accordingly, the treaty-making system must be reformed and updated so as to reflect this growing importance and influence on our domestic system in a way which will provide greater accountability to the treaty-making process.
This, for Australia, means that we must have an efficient domestic methodology for assessing the way proposed treaties meet our own national concerns. Parliament should be in a position to examine the considerations which are weighed by the government when it determines the need for Australia to take binding treaty action.
The new arrangements should go a long way toward rectifying the democratic deficit identified by so many commentators during the hearings conducted during 1995 by the Senate Legal and Constitutional References Committee. Very many individuals and organisations put their views forward on treaty-making in 1995. I cannot name them all here, but I can say that they came from virtually every part of the Australian social, economic, cultural and political spectrum. They ranged from community organisation representatives to persons like Justice Michael Kirby and Sir Ninian Stephen. My colleague the Attorney-General (Mr Williams) also made two submissions to the Senate committee, and has played an instrumental role in the development of the actions and proposals I am privileged to announce today.
It is my earnest hope that the government’s response to the Senate committee’s report Trick or Treaty? Commonwealth Power to Make and Implement Treaties, which is scheduled for tabling in the Senate today, will restore confidence in the treaty-making process. I do, however, offer an undertaking to revisit these issues after experience with these reforms.
Before stating the changes that are to be introduced, I should note that they also respond to the belief of state and territory governments that reforms are needed. The states and territories put their views forward in 1995 in their Position Paper on Reform of the Treaties Process to the Council of Australian Governments. They proposed a number of reforms which have been considered by this government. While discussions are continuing with the state and territory governments on the detail of some of the reforms announced today, I believe that the new arrangements will go a long way to allaying their concerns over the treaty-making process.
In particular, I note that the Prime Minister (Mr Howard) has already written to Premiers and Chief Ministers to inform them that the Commonwealth will support the creation of a Treaties Council as an adjunct to the Council of Australian Governments. Further discussions will take place with the state and territory governments on the composition and working methods of the Treaties Council, but it is my hope that it will begin functioning without delay. THE NEW ARRANGEMENTS I shall now describe the reforms we have decided to make to the treaty-making process. Tabling of treaties
Treaties will be tabled in parliament at least 15 sitting days before the government takes binding action. This means that treaties will be tabled after the treaty has been signed for Australia, but before action is taken which would bind Australia under international law. This latter action, which is often inaccurately called `signature’, is usually ratification or accession, but there are occasionally other forms or procedures for taking binding action. The procedure will also be used whenever other types of binding action are proposed, including termination or denunciation of a treaty.
The new arrangements will apply to all treaties, bilateral as well as multilateral. They will also apply to all actions which amend a treaty if the amendment would alter obligations with a legally binding impact on Australia. The Senate committee recognised that there would be occasions when the government would need to take treaty action…
The committee recommended that special procedures be instituted to cater for this need. It noted, for example, that a 15 sitting-day tabling requirement would often translate into 30 to 100 calendar days. Treaties which require immediate implementation, like the Bougainville Peace Keeping Treaty of 1994, demonstrate the need for special arrangements to meet special circumstances. Therefore, and in accordance with the Senate committee’s recommendation, where tabling in advance of binding action is not possible, it will be tabled as soon as possible together with an explanation.
These exceptions will be used sparingly and only where necessary to safeguard Australia’s national interests, be they commercial, strategic or foreign policy interests. National interest analyses
Treaties will be tabled in the parliament with a national interest analysis. This will facilitate parliamentary and community scrutiny of treaties, and demonstrate the reasons for the government’s decision that Australia should enter into legally binding obligations under the treaty. The analysis will be designed to meet the need identified both by the Senate committee and the states and territories in 1995, namely that no treaty should be ratified without an analysis of the impact the treaty would have on Australia.
This document will note the reasons why Australia should become a party to the treaty. Where relevant, this will include a discussion of the economic, environmental, social and cultural effects of the treaty; 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 and whether the treaty provides for withdrawal or denunciation.
The size and complexity of national interest analyses will, of course, be tailored to particular treaties. More complex multilateral treaties will require a more detailed statement but this will not be allowed to become an unnecessarily lengthy, resource consuming exercise. I expect the consultation process will identify which issues merit detailed analysis. Ministers will ultimately determine the appropriate balance between the size and utility of the document and the resources required to prepare it.
I expect the first tablings of treaties to see the beginnings of the national interest analysis system. The government looks forward to discussing these issues with state and territory governments in the COAG context. Parliamentary Joint Standing Committee on Treaties
The government will propose the establishment of a Joint Parliamentary Committee on Treaties to consider tabled treaties, their national interest analyses and any other question relating to a treaty or international instrument that is referred to it by either house of parliament or a minister. The committee will provide detailed scrutiny and examination of those treaties that are of particular interest to Australians. I consider this to be a landmark step in strengthening parliament’s role in treaty making as the committee will be empowered to inquire into all tabled treaties and bring forward reports for consideration by the parliament. Treaties Council
The Commonwealth will support the creation of a Treaties Council as an adjunct to the Council of Australian Governments. The council will have an advisory function, but its composition and operational details will be the subject of further discussions with the states and territories.
The government believes that, together with the commitment to prepare national interest analyses for all future treaty actions, the establishment of a Treaties Council will herald a new phase in Commonwealth-state consultation on treaty making. Treaties information database
The establishment of a treaties database was recommended by the Senate committee, and my department, in consultation with the Attorney-General’s Department, is now working on its creation, taking advice from potential users in the non-governmental community as well as from state and territory governments.
The database will be designed to make it easy for all persons and groups with an interest in treaty information to obtain it free of charge, as recommended by the Senate committee. Present planning envisages that, although the database will be available from the Internet, it will remain possible for those without electronic communication equipment to obtain information in hard copy form from the agency responsible for the treaty or the Department of Foreign Affairs and Trade.
Arrangements will be made to advertise the availability of the database once it is established. The government recognises that it is one thing to have the information available but quite another to make that very availability widely known.
Once established, the treaties database will complement the electronic links for public libraries program, which aims to provide Internet access to all public libraries in Australia. My department will work with the Office of Government Information Technology and other relevant agencies to ensure that the database both stays abreast of technological developments and provides information in a user-friendly form.
This exciting step will truly modernise the dissemination of treaty information in Australia. Industry bodies and NGOs are increasingly turning to the Internet as a means of communication that is particularly suited to the vast spaces of the Australian continent. Libraries in remote and rural communities that previously would not have kept hard copy texts of treaties and other information will, in future, be able to download this information from the Internet and make it available to anyone who wants it.
The treaties database also has implications for consultations on particular treaties. My department is examining the possibility that new forms of information dissemination, for example via electronic news groups, will make it easy to provide immediate advice of treaty developments to anyone who wants to be linked to the system. Discussions with potential users of this facility have already started, and I hope it will be possible for the new system to be up and running quickly. I also hope this will be able to be developed for the benefit of the parliament, for it is important that the parliament and the new Joint Standing Committee on Treaties are linked to this form of information dissemination. CONCLUSION The reforms I have described represent a significant enhancement in treaty scrutiny and consultations at all levels in the Australian government and the community. Implementing them will be a major endeavour, and my department has already established a new treaties secretariat with responsibility for managing the reforms and coordinating their implementation. The treaties secretariat will also be responsible for monitoring public reactions to the reforms and reporting to me on ways in which they might be further enhanced.
I am proud to say that the reforms give Australians unparalleled access to the work of governments in the making of new international laws. I firmly believe that the impact of international laws in the domestic context make it imperative that we continue to improve that transparency and recognise the fundamental right of people to scrutinise the way international law is made.
Later on the same day, 2 May 1996, the Minister for Foreign Affairs, Mr Alexander Downer added in the House of Representatives (House of Representatives, Debates, 2 May 1996, p 238):
What the member does not seem to understand is that the critical point when you make treaties is the point of ratification. Once you have ratified, you have passed the point of no return. That is the critical point. What we have done is provide all these processes to take place before ratification.
Also on 2 May 1996, Senator Hill, the Leader of the Government in the Senate incorporated the government’s response to the report of the Legal and Constitutional References Committee entitled Trick or Treaty? Commonwealth Power to Make and Implement Treaties into Hansard. The following is an edited version of the response (Senate, Debates, 2 May1996, p 217):
Introduction
…The government considers that the Committee’s report provides a sound basis for the reform of aspects of the treaty-making process as it affects Australia, particularly as the Committee was able to reach unanimity on the recommendations put forward.
The Committee’s hearings took place during a period of profound debate on the place of treaties in Australian domestic law and process. The government has also taken account of that debate in framing its response, paying particular regard to submissions made by the states and Territories as well as concerned non-governmental groups and individuals.
It is the government’s intention that treaty-making should be accepted as playing a legitimate part in the development of Australia’s place in the economic, political and social framework which is evolving in the modern post-Cold War world. It is neither possible nor sensible for Australia to stand aside from this evolution. It is, however, equally necessary for the Parliament, the states and Territories and the Australian community to participate in the task of finding the best way for Australia to participate constructively in international law making and negotiate treaties which serve Australia’s national interests.
The government will augment the existing treaties unit within the Department of Foreign Affairs and Trade to coordinate information dissemination and consultation and ensure that by the time Australia enters into a treaty there will have been the fullest possible opportunity for all Australians with an interest to participate in the consultation process. The development of National Interest Analyses (NIAs) for all treaties to which Australia is considering becoming a party will assist decision making and provide a further source of information to all interested parties.
The government has also noted that the Committee’s report envisages an enhanced role for Parliament in scrutinising Australia’s treaties. The government will introduce a new tabling arrangement whereby all treaties, with the exception of urgent and sensitive treaties, will be tabled at least 15 sitting days to allow for Parliamentary scrutiny before binding treaty action is taken. The government will also support the creation of a special Joint Standing Committee on Treaties. The Secretariat to be formed within the Department of Foreign Affairs and Trade will also be tasked with coordinating the provision of treaty materials to the Parliament and the Committee.
Successive governments have recognised the importance of consultation with the states and Territories. The government agrees with the states and Territories that a Treaties Council should be created and will consult further with the states and Territories on this.
Many of the Senate Committee recommendations envisage legislation. The government believes that it is important to move quickly to put the new processes in place and that this is best done through non-legislative means. It will, however, review the new tabling arrangements after two years and this would be the most appropriate time to consider the need for legislation and the suggestion that there should be further examination of a parliamentary approval procedure. Recommendation 1That the government should conduct an audit of treaties to provide the following information:
• a list of treaties to which Australia is currently a party;
• a list of which Departments administer the treaties to which Australia is currently a party; and
• the manner in which treaties have been implemented in Australia, i.e. whether they have been implemented by executive action or by legislation, and if implemented by legislation, which legislation.
Response
Accept the need to provide more accessible information about treaties. Comment
Treaties in force for Australia
Successive governments have sought to clearly identify Australia’s obligations in relation to international treaties. The fully revised Australian Treaty List, published in 1990, included all treaties to which Australia was formally a party. A detailed examination was made in its preparation of available archival and filed material and notifications to depositaries for multilateral treaties. This information was published under the entry for each treaty. If no evidence was available to the contrary, it was assumed that the treaty was still formally in force.
The first Supplement to the List, published in 1995, while adding subsequent treaties to the List, also updated existing entries where further information had become available. This is an ongoing process. Updates to the List are published monthly as “Treaty Action” in the Departmental magazine Insight and annually in the Australian Treaty Series.
The introduction to the 1990-1994 Supplement contained a detailed analysis of the number of treaties in force for Australia. It explained that the precise number of treaties in force for Australia is not easily established, because some treaties may still be formally in force but of no practical effect. These include a number of treaties whose purpose has expired and some colonial and pre-World War 2 treaties inherited from the United Kingdom. There are also a number of treaties entered into with the former Soviet Union and the former Yugoslavia whose status remains to be clarified. In this regard, Australia is in a similar position to other countries. The extent of this uncertainty should not be overstated. The status of the great bulk of treaties is clear. The Department of Foreign Affairs and Trade as part of its ongoing responsibilities seeks to terminate or replace treaties which are no longer practically operative, as well as undertaking diplomatic efforts to resolve the status of those treaties whose status is unclear. However, the allocation of the additional resources required to undertake a full scale audit to produce a list of treaties in force, for example, in terms of consultations with depositaries for multilateral treaties or other parties would be substantial, while the benefits would be questionable. Moreover, such an audit would probably take a number of years to complete since it would depend on the responsiveness of other countries, who would not necessarily regard it as a priority.
Nonetheless, the government accepts the need to present in a more accessible way information about Australian treaty making. An explanation of the sources of information and a general description of Australian treaty practice will be included in revisions of the Department of Foreign Affairs and Trade’s publication Australia and International Treaty Making: Information Kit (1994), as well as in future electronic information retrieval initiatives (see recommendation 4). Identification of Departments/agencies responsible for treaties
Under the Administrative Arrangements Order, the Foreign Minister is responsible for treaties. Responsibility for particular treaties is allocated by subject matter, e.g. the Department of Industrial Relations is responsible for International Labour Organisation treaties. However, there are a number of instances where several Departments or agencies will have a shared involvement in or responsibility for a particular treaty or a category of treaty. The government will prepare a general outline of responsibilities for inclusion in the new Australia and International Treaty Making: Information Kit, the Commonwealth Government Directory which is published quarterly by the commonwealth government, and in other publicly accessible sources. The Department of Foreign Affairs and Trade will continue to publish twice annually a list of treaties currently under negotiation, with the names of contact officers in relevant agencies. Manner of implementation of treaties
Information on legislation and other means of implementing treaties is available from relevant administering Departments and agencies. As part of fulfilling reporting requirements under particular treaties, agencies publish detailed reports on the implementation of treaties and, in future, these will be tabled in Parliament (see recommendation 2). The Attorney-General’s Department will also table annually a list of Commonwealth legislation specifically implementing treaties. The government will look at making more information on the implementation of treaties available in the context of future electronic information retrieval initiatives. Recommendation 2
That legislation provide that the government report to the Parliament annually on actions taken in the course of the previous year to implement treaties to which Australia is a party. Response
The government agrees to table annually a list of commonwealth legislation specifically implementing Australia’s treaty obligations. In addition, the government undertakes to table the comprehensive, periodic implementation and update reports which are prepared in order to comply with Australia’s reporting obligations under various treaties. Comment
In Australia treaties are implemented by a myriad of legislative, judicial and everyday administrative actions at both the commonwealth and state and territory levels. In addition, where treaties set standards, for example, there may be no need for any action to implement a particular obligation where the standard is already met in Australia. It does not seem feasible, therefore, to produce an annual report to Parliament setting out all the actions taken in a year to implement all the treaties to which Australia is a party.
However, each year, a list of commonwealth legislation specifically implementing Australia’s treaty obligations is prepared for the Australian Year Book of International Law. A similar list will be tabled annually.
In addition, as the Committee noted in its report, Australia is required to prepare comprehensive, public, periodic reports on implementation under a range of multilateral treaties including the major human rights and environment treaties. Current practice is to table the reports prepared under the six major human rights treaties in Parliament. The government agrees that it would also be appropriate to table similar reports prepared under other treaties to meet the Committee’s concern `that the Australian Parliament is provided with at least as much information about the implementation of treaties as are international organisations.’ [Paragraph 11.35]
With respect to treaties of the International Labour Organisation, Australia prepares a comprehensive First Report shortly after their entry into force, but subsequent reports (either every two or every five years) usually simply update the First Report. In order to supplement the information provided in these updated reports, reference could be made to the publication Status of ILO Conventions in Australia 1994 (SICA), which was tabled in Parliament in August 1995. Under the entry for each ratified ILO Convention, SICA includes a list of the major legislation which implements it. Legislation is not required to enable the tabling of the legislation list and reports. Recommendation 3
That the Department of Foreign Affairs and Trade prepare a special publication which provides information on the treaties under consideration by the government and make it available, free of charge, to all public libraries in Australia. Response
Accepted. Comment
The Department of Foreign Affairs and Trade already substantially meets Recommendation 3, as a list of multilateral treaties under negotiation or review is published twice a year in Insight. New treaties under negotiation, amendments to existing treaties, finalised treaties under review and treaties to which Australia is already a party, but for which further action is under consideration, are all listed. In keeping with international practice, the negotiation of bilateral treaties is considered confidential between the parties until the signature of the treaty, and therefore they do not appear. In its hard copy form, Insight has a circulation of over 8000 readers and is currently sent out to 235 public libraries. In future, it will be sent to any public library which does not currently receive it.
The Department also distributes treaty information by electronic means on the Department’s Internet homepage, the address of which is http://www.dfat.gov.au. Both means of distribution occur free of charge.
The government supports the establishment of a treaties database on the Internet (see Recommendation 4). The electronic provision of both a list of all multilateral treaties under negotiation or review and a treaties database to all public libraries via the Internet will enable the public to obtain the most up-to-date information on treaties as the list will be continually amended by the government. Recommendation 4That the government fund a project for the establishment of a treaties database, which would include:
• the full text of all multilateral treaties included in the Department of Foreign Affairs and Trade’s publication Select Documents on International Affairs;
• any available explanatory material on these treaties; and
• decisions of international bodies which interpret these treaties, such as the United Nations Human Rights Committee and the complaints bodies of the International Labour Organisation.
The treaties database should be made available, free of charge, on the Internet (so that commonwealth, state and local governments, universities, schools, libraries and the general public may access it) and should also be able to be accessed through commonwealth government bookshops, in the same manner as the SCALE database which is maintained by the Attorney-Generals’s Department.
Response Accepted. Comment
The government supports the establishment of a treaties database which would be accessible free of charge through the Internet. Given the enormous volume of treaty information available the only viable way of making this information accessible to the widest range of people is via the Internet. The government indicated in its statement entitled Australia On-Line that it supported the Electronic Links for Public Libraries Program, announced in December 1995, which aims to provide Internet access to all public libraries in Australia. The Department of Social Security also has a pilot program under way (Community Information Network) designed to provide 400 Internet access points in DSS offices and community centres in selected states and towns. In addition, Internet access is being provided at other outlets, including Commonwealth Government Bookshops. Discussions with academics, industry, and NGOs suggest that the use of this dissemination resource will meet the needs of most of those with whom consultative relationships would be established. The government will, however, continue to produce hard copies of certain treaty information such as the Australian Treaty Series and the Select Documents.
Initially, the following treaty information would be placed on the database: the Australian Treaty List; the Australian Treaty Series (1948-present); Select Documents on International Affairs: Treaties and Conventions (1966-present); explanatory material being prepared in relation to forthcoming multilateral treaty action; and National Interest Analyses that are tabled in Parliament. The Department of Foreign Affairs and Trade will form a government Treaties Database Committee to manage what treaty information goes onto the database. The Committee would also establish guidelines on the management of the database and the development of complete and up-to-date treaty information.
The Senate Committee also recommended that the decisions of international bodies which interpret these treaties, such as the United Nations Human Rights Committee and the complaints bodies [supervisory machinery] of the International Labour Organisation be placed on the database. The selection of an appropriate service provider will facilitate this task (some material is already available through the Australasian Legal Information Institute, an institution referred to in the Senate Committee’s Report). The government will work toward placing the decisions of international treaty bodies on the database in line with the resources allocated to this task. Initial indications from the United Nations and its agencies is that the UN is currently considering the exchange of information through the Internet, including in relation to treaties. The government will work towards ensuring that as much UN information as possible is available to the public through the Internet. Seed funding has also been provided by the Attorney-General’s Department for the Australian Human Rights Information Centre (AHRIC) for the purpose of establishing an Internet site which holds international human rights materials. AHRIC proposes that the second stage of the project will expand the core collection of human rights documentation, however, this would require further funding.
The treaty information database should be integrated into an existing domestic legal database so that it would be possible to cross-reference domestic legal materials (i.e. federal or state implementing legislation, Hansard references, case law, legal articles) relating to a particular treaty. The treaties database would hold certain information on the database site but would also provide access via hypertext links to other treaty information on other global Internet sites. Recommendation 5
That funding be provided to the Department of Foreign Affairs and Trade and the Attorney-General’s Department for a joint project to publish information on the meaning and interpretation of treaties, including collections of interpretative decisions and the travaux preparatoires (records of the negotiation proceedings) of treaties. Response
Not accepted.
Comment
Much of the information referred to by the Senate Committee in this recommendation, and in the elaboration of it in paragraph 12.50 of the Report, is either already available, or will be available as a result of the implementation of responses to other recommendations made by the Senate Committee.
Information in relation to multilateral treaties under negotiation or in relation to which treaty action, such as signature or ratification, is being considered will be placed on the Department of Foreign Affairs and Trade homepage on the Internet and thus be made available to the public. It is already available to the public in the Foreign Affairs magazine Insight. The text of treaties to which Australia is already a party will also be placed on the Internet. The National Impact Analyses which will be prepared in relation to each treaty to be tabled in Parliament will include material relevant to the meaning and interpretation of treaties.
There are also existing texts which collect or summarise the travaux preparatoires of many major treaties and these are already available through libraries (including on Inter-Library loan). However the gathering of information on the meaning and interpretation of treaties, including collection of interpretative decisions and the travaux preparatoires, if undertaken independently by the Department of Foreign Affairs and Trade and the Attorney-General’s Department would require a large injection of funds. In particular, the collection of the travaux preparatoires of the treaties to which Australia is a party would be extremely resource intensive and of little practical benefit to the general community.
Nevertheless, in order to improve access to the travaux preparatoires for future treaties, the government will give consideration to sponsoring a resolution in the United Nations General Assembly urging all United Nations agencies and bodies to keep comprehensive records of treaty negotiations for which they are responsible and to make such information available in electronic form, preferably on the Internet. Recommendation 6
That the government increase its efforts to identify and consult the groups which may be affected by a treaty which Australia proposes entering into, and groups with expertise on the subject matter of the treaty or its likely application to Australia. Response
Accepted.
Comment
The Committee received a variety of views about the efficacy of the consultative process now undertaken with industry, NGO’s and the wider community. It noted, however, that `there seemed to be some agreement that the government was making a greater effort to consult industry on relevant Conventions’ (paragraph 12.12). It also stated that ``there appears to be some evidence that the commonwealth has done much more in recent years in consulting relevant non-government organisations and industry groups’’ (paragraph 12.24). It did, however, receive evidence indicating that the consultations process was conducted unevenly, and that there was a lack of transparency in the treaty process from the viewpoint of community groups and individuals.
The government considers that it is important to ensure that all those groups and individuals which might be affected by a treaty or which could contribute expertise to the preparation of Australian positions on treaty issues are able to present their views at appropriate stages in the negotiation process. Consultation with such groups and individuals not only promotes community understanding of treaties and their potential value or impact, but also enables Australian Delegations to attend conferences with stronger briefing taking account of Australia’s strengths in different fields. Representatives from state and territory governments, industry and NGO’s have, where appropriate, been included on Australian government delegations attending treaty negotiations.
The government seeks, with the assistance of peak organisations and known players, to bring the significance of treaty issues to the notice of all parties who might have an interest. Well-developed mechanisms for consultation with industry and NGO’s already exist, such as in the international environment arena, which discuss proposed treaties, treaties under negotiation and possible adherence by Australia to treaties. Hundreds of consultations are undertaken every year. The government has also relied on publications like Insight to let the wider community know of treaties under negotiation, and has responded to enquires generated as a result. It also uses public affairs opportunities in centres around Australia to discuss treaty issues and seek reactions and views. Nonetheless, in some areas, there is the perception that the existing arrangements are not sufficient.
The Department of Foreign Affairs and Trade has already begun a review of the consultation process with the aim of identifying ways of improving it. This will extend to considering the value of formal meetings with representatives of interested peak organisations (as now happens with respect to Environment, Human Rights and Peace and Disarmament treaties). It will also consider the value of treaty-specific consultations, which are common with the various environment and ILO conventions and the need for additional consultations with community groups. It will also consider the work done by peak bodies to disseminate treaty information to their constituents.
The review will also discuss the capacity of private sector groups to digest and provide advice on the volume of information which is available on treaty issues. The delivery of information through electronic media, both by government and by other agencies, is transforming the consultative process and raising the possibility that government needs to see itself more as a provider of analysis rather than of raw information for consultation processes, at least where peak organisations and specialist groups are concerned. It is, however, important to bear in mind the importance of ensuring that treaty consultation is not made so complicated that it cannot be accessed by community groups who might be affected.
The diverse subject matter of modern treaties makes it difficult to respond with a single answer to the identified need for increased efforts in this field. The government does, however, anticipate that the creation of the treaty database, and the wider dissemination of treaty information to the public through libraries and increased contact with the media, will encourage more interested groups and individuals to seek involvement in the consultation processes relevant to particular treaties. Officers of functional Departments will work with the groups and persons to find a way to assist the presentation of views to the consultative process relevant to the treaty in question.
The Committee also heard evidence that in some cases consultations took place at short notice, and with insufficient time for the presentation of considered views. The government endeavours in all cases to allow all potential consultative partners sufficient time to provide their views, but there are times when the international processes move at a speed which makes this impossible. The government trusts that continual improvements to dissemination procedures will ensure that community groups wishing to involve themselves in consultations will be in a position to do so from the beginning of negotiations, obviating the problem that some experience because they only learn of consultation opportunities at the eleventh hour.
The National Interest Analysis presented to Parliament in respect of treaties will identify the consultative process used for each treaty for which an NIA is presented, affording Parliament an opportunity to review the adequacy of the consultations undertaken. Recommendation 7
That the existing Commonwealth-State Standing Committee on treaties be abolished and replaced with a Treaties Council that is preferably established by legislation. The Treaties Council should comprise members appointed by both the government and Opposition of each of the Parliaments of the states and Territories and the government, Opposition and minor parties of the Commonwealth Parliament. The role of the Treaties Council should be to consider the potential impact of treaties on state, territory and commonwealth laws, and the method of implementing treaties. The Council should provide public reports which could be tabled in the Parliaments of the states, Territories and the commonwealth. Response
The government accepts the need to establish a Treaties Council. Comment
The government supports the formation of a Treaties Council with an advisory function to enhance commonwealth/state consultation on treaties. However, the composition and the role of that Council are matters which need to be agreed between the commonwealth and the states and Territories. In their Position Paper presented to the Council of Australian governments (COAG) the states and Territories recommended a Treaties Council comprised of all Premiers and Chief Ministers and chaired by the Prime Minister. The government proposes to consult with the states and Territories in COAG on the formation of a Treaties Council and on other commonwealth/state consultative procedures and bodies including the role of the Standing Committee on Treaties. Recommendation 8
That legislation be enacted which requires the tabling of treaties in both Houses of the commonwealth Parliament at least 15 sitting days prior to Australia entering into them (whether by signature or ratification). This should be subject to an exception for urgent and sensitive treaties, in circumstances where it is not possible or not in the national interest to table them before Australia becomes a party to them. In such cases, the treaty must be tabled as soon as practicable after Australia has party to it, accompanied by a statement explaining the reason why it could not be tabled before Australia became a party. Response
The recommendation is accepted and will be implemented at present by non-legislative means. The issue of legislation will be considered in the light of practical experience with the new tabling arrangements. Comment
The government gives a firm commitment to the tabling of treaties to allow for Parliamentary scrutiny but believes that the new arrangements should be implemented for the time being by non-legislative means. Under the new arrangements, all treaties will be tabled in the Parliament at least 15 sitting days before the government takes definitive treaty action, that is action to become a full party. The new arrangements will apply to all treaties i.e. bilateral treaties, as well as multilateral treaties. The Senate Committee accepted that a requirement to table bilateral treaties before signature was problematic because of the international convention that such treaties are confidential until signed. It recommended that all bilaterals be drafted to come into force through a two step mechanism of signature and ratification and be tabled before ratification. The same end can be achieved through Australia’s normal practice of signature and exchange of notes (the exchange of notes procedure differs from formal ratification in that it is not necessary to refer the treaty to the Federal Executive Council for approval a second time). Under this proposal, the exchange of notes would be the definitive treaty action and treaties would be tabled between signature and exchange of notes. The tabling procedure will apply to all treaty actions, including amendments to, or termination of, treaties.
The only exceptions will be for urgent and sensitive treaties. The Senate Committee acknowledged the need for this. Acceptance of a requirement for tabling must be accompanied by provision for those inevitable urgent or sensitive treaty cases where it is desirable to take binding treaty action either before tabling or where a treaty has been tabled but the 15 sitting days have not expired. This seems essential in any new procedure. The Senate Committee acknowledged 15 sitting days might be 30-100 calendar days. The government accepts that for “sensitive” treaties or cases where urgent treaty action is required the treaty should be tabled later with an explanation to Parliament.
It is possible to implement the government’s new tabling policy immediately under existing arrangements, pending consideration of legislation. This would avoid delay in the government’s proceeding with treaty action. It would also make sense to defer any decision about legislation until the practical consequences of the new system have become clear and a the review of the desirability of a parliamentary “approval process” foreshadowed in response to recommendation 11 is completed. Recommendation 9That legislation be enacted to establish a Joint Parliamentary Committee on Treaties. The functions and powers of the Committee should include:
a) the function of inquiring into and reporting on any proposals by Australia to ratify or accede to any treaty, proposed treaty, or other international instrument or proposed international instrument, including whether Australia should become a party to the treaty or instrument;
b) the function of inquiring into and reporting on whether Australia should make any reservation or declarations upon ratification or accession to any treaty;
c) the function of inquiring into and reporting on any other proposed treaty action, such as the removal of a reservation, or the making of a declaration which subjects Australia to additional obligations under a treaty;
d) the function of inquiring into and reporting on treaties to which Australia is already a party, including the method of their implementation and how they should be dealt with in the future;
e) the function of scrutinising treaty impact statements;
f) the power to hold public hearings and hold hearings in camera;
g) the power to call for documents and witnesses; and
h) the power to commence an inquiry into a treaty, proposed treaty, international instrument, proposed international instrument, or any other treaty action, at any time, regardless of whether it relates to a document that has been tabled in the Parliament.
Response
The government will seek to establish a Joint Standing Committee on Treaties by way of resolutions in both Houses of Parliament. Comment
The government fully accepts the importance of parliamentary scrutiny of treaties, facilitated by tabling at least 15 sitting days prior to Australia’s entering into them. Accordingly, the government proposes to move quickly to establish a Joint Standing Committee on Treaties by resolutions of both Houses rather than by using legislation, which would entail delay.
It is proposed that the Committee be established with functions and powers allowing inquiry on the full range of matters listed in Recommendation 9 arising from the tabling of treaty proposals and, for other treaty questions, on reference by either House or a minister. Consistent with the exceptional considerations affecting tabling of urgent and sensitive treaties (Recommendation 8), consideration by the Committee of such treaties should take place only under procedures which will ensure the protection of national interests and observance of international comity, for example in camera hearings and restricted circulation of documentation. These considerations apply particularly to bilateral treaties, which international convention requires be confidential between the negotiating states during negotiation and until signed. The Minister for Foreign Affairs should be able to refer such treaties to the Committee and to prescribe terms of reference for their consideration. Recommendation 10That the legislation establishing the Joint Parliamentary Committee on Treaties require that treaty impact statements be prepared on each treaty tabled in Parliament. The impact statements should address the following matters:
a) reasons for Australia being a party to the treaty;
b) any advantages and disadvantages to Australia of the treaty entering into force in respect of Australia;
c) any obligations which would be imposed on Australia by the treaty;
d) any economic, social, cultural and environmental effects of the treaty, of the treaty entering in force in respect of Australia, and of the treaty not entering into force in respect of Australia;
e) the costs to Australia of compliance with the treaty;
f) the likely effects of any subsequent protocol to the treaty;
g) measures which could or should be adopted to implement the treaty, and the intentions of the government in relation to such measures, including legislation;
h) the impact on the Federal-state balance of the implementation of the treaty;
i) a statement setting out the consultations which have occurred between the commonwealth, the states and the Territories and with community and interested parties in respect of the treaty; and
j) whether the treaty provides for withdrawal or denunciation.
Response
The government will prepare and table a `National Interest Analysis’ for each treaty to which Australia intends becoming a party. Comment
A National Interest Analysis (NIA) will be tabled with each treaty tabled in Parliament. They will also be made available to the states and Territories and the general public.
In general, the size and complexity of NIAs will be tailored to particular treaties. More sensitive and complex treaties, such as the Energy Treaty, will require a more detailed statement. On the other hand, a number of bilateral agreements follow an approved model text. These are referred to as `template treaties’. Such treaties include double taxation agreements, investment promotion and protection agreements and social security agreements. A standard form, simplified NIA will be prepared for this category of treaty.
NIA’s will address the elements outlined in recommendation 10, however, several of the elements identified may be combined, for example, the economic, social, cultural and environmental effects of the treaty may be addressed in the reasons for Australia to become, or not to become, a party to the treaty.
In relation to future protocols, the NIAs will indicate whether a treaty foreshadows additional protocols or other legally binding instruments. Frequently, however, it is not possible to predict that a further related instrument will be negotiated or what form such an instrument will take. Where an additional instrument is negotiated, however, it is, in effect, a separate treaty. Therefore, under the new tabling arrangements it will be tabled before Australia takes final action to become a party to it and a separate NIA will be prepared at this time.
In constitutional terms, the impact on the Federal/state balance of entry into any treaty is fundamentally the same, that is, it brings the implementation of the treaty within the legislative competence of the Federal Government. In practice, however, the effect on the Federal/state balance will depend on how the treaty is implemented. NIAs will address this issue in the section on implementation.
The NIAs will be finalised in time for tabling in the Parliament as part of the new processes before Australia becomes a party to a treaty. They will also be made available to the state and territory governments and the wider community at this time. The states and Territories would be consulted in the development of NIAs in which they have a major interest, as would other interested groups. These views would be reflected in the NIA.
NIAs will be prepared for the information of Parliament and others and will represent the best understanding of the commonwealth at the time that they are prepared, but they will not represent undertakings of any kind. Legislation is not required to enable the preparation and tabling of NIAs. Recommendation 11
That the issue of what legislation, if any, should be introduced to require the parliamentary approval of treaties be referred to the proposed Treaties Committee for further investigation and consideration. Response
The government will review the initiatives taken to reform the treaty-making process after two years. It will give consideration at that time to whether the issue of an approval procedure should be referred to the new Treaties Committee. Comment
This question was the subject of widely divergent views during the Senate Committee hearings. These included presentations arguing for either approval or disallowance requirements, and the question of whether the Constitution empowered the Parliament to restrict the power of the Executive to enter into treaties. It concluded that there was ``little reason to doubt that the Legislature has the power to limit or regulate the Executive’s power to enter into treaties, to make or remove reservations or to denounce treaties’’ (para 16.99).
The Committee’s report discusses difficulties which would need to be addressed if an approval or disallowance procedure were to be introduced, and concluded that the issue was of such importance that it should be the subject of further public debate and consideration. It felt that the implementation of other recommendations could ``assist in curing some of the problems which a system of parliamentary approval of treaties would also be designed to address’’ (para 16.102).
The government considers that it would be sensible to review the experience to be gained from the establishment of a Joint Committee and the implementation of other recommendations before moving to consider the need for an approval or disallowance procedure. Accordingly, the government will review the initiatives taken to reform the treaty-making process after two years. It will give consideration at that time to whether the issue of an approval procedure should be referred to the new Treaties Committee.
In a joint news release also issued on 2 May 1996, the Minister for Foreign Affairs, Mr Downer, and the Attorney-General, Mr Williams noted:
Mr Williams said “the reforms will significantly enhance domestic involvement in the treaty making process”.
In a statement to Parliament, Mr Downer said—
“The changes will provide proper and effective procedures enabling Parliament to scrutinise intended treaty action. Importantly, they will also overcome what this Government considers to have been a democratic deficit in the way treaty-making has been carried out in the past.
Trade flows, environmental concerns and human rights, to name only a few of the increasing array of such issues, can only be managed and handled effectively through international agreement. This means that treaties, the fundamental instruments of international law, are and will always be an essential component of contemporary international relations and of Australia’s own legal development”.
The Minister for Foreign Affairs and the Attorney-General noted the following elements of the reforms:
• Treaties will be tabled in Parliament at least 15 sitting days before the Government takes binding action. This means that treaties will be tabled after the treaty has been signed for Australia, but before action is taken which would bind Australia under international law.
• Treaties will be tabled in Parliament with a National Interest Analysis which will note the reasons why Australia should become a party to the treaty. Where relevant, this will include a discussion of the foreseeable economic, environmental, social and cultural effects of the treaty; 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 and whether the treaty provides for withdrawal or denunciation.
• The Government will propose the establishment of a Joint Parliamentary Committee on Treaties to consider tabled treaties and the National Interest Analyses. The proposed Committee could also consider any other question relating to a treaty or international instrument that is referred to it by either House of Parliament or a Minister. The Committee will provide detailed scrutiny and examination of those treaties that are of particular interest to Australians.
• The Commonwealth will support the creation of a Treaties Council as an adjunct to the Council of Australian Governments. The Council will have an advisory function, but its composition and operational details will be the subject of further discussions with the States and Territories.
• A treaties database is to be established which will allow individuals and groups with an interest in treaties to obtain information free of charge. It is currently envisaged that the information on the database will be accessible via the Internet. However, it will remain possible for those without electronic communication equipment to obtain information in hard copy form from the agency responsible for the treaty or the Department of Foreign Affairs and Trade. “The Department of Foreign Affairs and Trade has already established a new Treaties Secretariat with responsibility for managing the reforms and coordinating their implementation.” Mr Downer said. The Treaties Secretariat has been established in the Department’s Legal Office. In addition, Mr Williams commented: “I am particularly delighted that the Government is proposing a Joint Parliamentary Committee on Treaties. The Committee process will provide an opportunity for greater Parliamentary and community involvement in the treaty process.”
In announcing these reforms, Mr Downer and Mr Williams consider that Australians will be given unparalleled access to the work of governments in the making of new international laws. It is particularly important that the fundamental rights of people to scrutinise the way international law is made be upheld.
On 9 September 1996 Senator Eric Abetz provided the Senate with the following information when presenting the first report of the Joint Standing Committee on Treaties (Senate, Debates, 9 September 1996, p 3055 at 3056):
… Before I talk briefly about the 25 treaties tabled on 21 May and 18 June, which are dealt with in this report, I would like to make some general comments about the revised procedures which have been set in place by the government, together with a few words on the way the new arrangements are working. Prior to the present arrangements, while lists of the treaties into which Australia had entered were tabled in the parliament each six months, the Australian people had no way of knowing what their government had done in their name. Increasingly, this closed process caused concern at all levels of society. Significantly, it resulted in a lack of knowledge within the bureaucracy of the implications of these treaties. This, to take one notable example, led to the High Court’s judgement in the Teoh case, with continuing legislative question marks.
In November 1995 the Senate Legal and Constitutional Affairs References Committee—I note the then chairman, Senator Ellison, is in the Senate —tabled a report titled Trick or treaty? Commonwealth power to make and implement treaties. This report reflected concerns about the impact of international treaties on Australia’s federal system and the degree of consultation undertaken by government prior to ratification. Included in its recommendations were the establishment by legislation of a joint treaties committee, the preparation of treaty impact statements for each treaty tabled in parliament and increased efforts by government to identify and consult groups which may be affected by a treaty into which Australia proposes to enter.
Although the government did not implement the Senate committee’s recommendations in quite the way they were framed, the changes it has made meet most of that committee’s suggestions. It is pleasing that a number of senators from that committee—including Senator Ellison and, might I say, me—are now continuing their work as members of the joint committee. National interest analyses are now required for each treaty and there is also much greater emphasis on consulting those who might be concerned. A treaties council of COAG has been established as well.
Treaties now will be tabled for 15 sitting days, at the end of which time the committee is expected to report to the parliament. Provision has been made also for the tabling of urgent treaties which cannot be tabled for 15 sitting days before action must be taken. More on that later. In its turn the committee has advised the Minister for Foreign Affairs that as soon as practicable after each tabling it will inform him of those treaties on which it will report at the end of the 15-day period and those for which it will require additional time to report. In the latter cases it is the committee’s expectation that binding treaty action will not be taken until it has tabled a report.
On 10 December 1996, the Minister for Foreign Affairs, Mr Alexander Downer in response to a question without notice from Mr Bill Taylor, provided the following information to the House of Representatives concerning reforms to the treaty making process (House of Representatives, Debates, 10 December 1996, p 8103):
… this government made an historic change to the way treaties are made by the Australian government. On 2 May this year, I announced a package of reforms which included increased parliamentary scrutiny of treaty actions prior to Australia binding those treaty actions, adequate consultation with interested parties, a proposed treaty action and an increased level of information on treaty making being disseminated to the wider community.
Seven months after this historic new system was put in place, I can report to the House that our aims so far have been met. All treaty actions are now tabled in both houses for at least 15 sitting days prior to binding treaty action being taken by the government, unless there are exceptional circumstances of urgency, and all treaty actions are tabled with a national interest analysis.
Let me also remind the House that in June the COAG meeting agreed to the formation of a new treaties council. Finally, in June of this year, the first ever parliamentary Joint Standing Committee on Treaties was formed. As I mentioned earlier, it is ably chaired by the member for Groom. Members of that committee from both sides of the House have performed with great enthusiasm, showing a great deal of interest. It just confirms my view that this has been a very important and a very valuable initiative by the Howard government.
The committee has tabled four reports to date, three in relation to treaty actions tabled under the new system and one report on the committee’s inquiry into a bilateral agreement with Japan on long-line tuna fishing. Fifty-one treaty actions have been tabled under the new procedures, and it is now possible for Australians interested in treaty making to obtain the latest information on the Internet by checking my department’s home page.
As I said, these are historic changes to the treaty making process and they have one other very great additional advantage: they give the public confidence in the treaty making process by making it transparent and subject to scrutiny. I think that is a very important component of advancing the cause of our international relations.
On 21 May 1996, Mr Daryl Williams, the Attorney-General provided the House of Representatives with the following information concerning the treaties Committee (House of Representatives, Debates, 21 May 1996, p 1004):
… There is no doubt that treaties do bring benefits to the Australian community. However, the treaty making process adopted by the previous government acted to undermine rather than promote those benefits. A matter of particular concern to the government was the inadequacy of the parliamentary involvement in the treaty process. The only role of any significance which parliament had previously was in the passage of legislation to implement certain treaties. However, this was a role which was limited by the content of the treaty obligations. It was also limited by the fact that many of the important treaties to which Australia becomes a party do not require implementing legislation.
It is not as though the coalition was alone in calling for greater parliamentary involvement in the treaty process. Justice Michael Kirby, then President of the New South Wales Court of Appeal, in a Department of the Senate occasional lecture last year stated:
A key element of the government’s moves to give the parliament a greater role in relation to treaties is the establishment of the Joint Standing Committee on Treaties, this being the subject of one of the motions under debate. The motion to establish that committee is similar to that which I tabled in the House of Representatives in November last year. It would require the committee to report on matters arising from treaties and related national interest analyses presented to the parliament, any question relating to a treaty or other international instrument referred to the committee by either house of the parliament or a minister and such other matters as may be referred to the committee by the Minister for Foreign Affairs.
The principal issue for the joint standing committee will be whether it would be in Australia’s interest for it to become a party to a treaty. In order to reach a conclusion on that issue, the committee will need to analyse the implications for Australia of it becoming a party to a particular treaty. In so doing, the committee will be assisted by the national interest analysis, which will be tabled with each of the treaties. This national interest analysis is yet another innovation resisted with fervour by the previous government.
An inquiry into a proposed convention would also provide an opportunity for examination of whether appropriate action had been taken or was being taken in relation to any legislation required to implement the convention. Indeed, the commitment to ensuring legislation to implement treaties is in place prior to taking binding treaty action is another core element of the government’s treaty policy. It is a point worthy of elaboration in a few moments.
The ratification of ILO convention 158 is also the most blatant example of the disregard of the previous government for the need to have implementing legislation in place prior to the ratification of a treaty—that is, the sensible practice that Australia should not become a party to a treaty and thereby accept obligations under that treaty until it has legislation and practice in place to enable it to give effect to the treaty.
The basic reason for this practice is that, where legislation—be it Commonwealth or state—is necessary to give effect to the provisions of a treaty, it cannot be anticipated that the relevant legislature will pass the legislation. If Australia became a party to a treaty on the assumption that certain implementing legislation would be passed and it was not, then Australia would be left in breach of the treaty. This can be particularly embarrassing if there is no provision for withdrawal from it.
…[T]he Howard government will ensure that the necessary legislation and practice—be they state or federal—are in place prior to the taking of the relevant binding treaty action. The national interest analysis will address that question specifically and, as I noted earlier, it is one of the issues which will be considered by the Joint Parliamentary Committee on Treaties.
Australia becomes a party to many treaties each year. The proposed joint standing committee could not conduct full inquiries into all of them. For example, many treaties, such as bilateral air services agreements, investment protection agreements and double taxation agreements, are of the template variety—that is, the fundamental provisions of each of these agreements remain the same, irrespective of the country with whom they are made. Such treaties are likely to gain bipartisan support.
Undoubtedly the joint standing committee will develop procedures for determining whether a more detailed examination of particular treaties is desirable. Nevertheless, the opportunity for the committee to look at every treaty is fundamental to maintaining the integrity of the committee’s role and in ensuring adequate scrutiny by this parliament.
The committee would also provide an opportunity for state and territory governments, industry or community interest groups and individuals to put a point of view in relation to a treaty. Submissions would also normally be invited from relevant government departments, including the Department of Foreign Affairs and Trade and my own department. Hearings of the committee would normally be held in public; however, there would be certain occasions when the matters to be considered by the committee were sensitive. It could be expected that there would be in camera hearings for those sensitive matters.
The unanimous recommendations of a bipartisan committee are usually accorded considerable weight by governments. This was certainly true in relation to the government’s response to the recommendations of the Senate Legal and Constitutional References Committee report on treaties which I mentioned earlier. It is expected the same would be true in relation to the recommendations of the proposed Joint Standing Committee on Treaties.
The tabling of treaties with adequate opportunity for debate prior to ratification, together with consideration of those treaties by a joint treaties committee, the subject of one of these motions, will ensure that the Commonwealth parliament is no longer informed only after the event. It will now have a well-defined and effective role in the treaty making process. I commend that particular motion to the House.
On 9 September 1996, Mr Bill Taylor, on behalf of the Joint Standing Committee on Treaties, presented the committee’s first report to the House of Representatives. Mr Taylor noted (House of Representatives, Debates, 9 September 1996, p 3667):
…This committee came into existence as a result of widespread community concerns about the treaty making process. In the short time since it was formed, I and my colleagues would like to think that it has begun to change not only practices but, more importantly, attitudes to the process of making treaties in this country…
I would like to make some general comments about the revised procedures which have been set in place by the government, together with a few words on the way the new arrangements are working.
Prior to the present arrangements, while lists of the treaties into which Australia had entered were tabled in the parliament each six months, the Australian people had no way of knowing what their government had done in their name. Increasingly, this closed process caused concern at all levels of society. Significantly, it resulted in a lack of knowledge within the bureaucracy of the implications of these treaties. This, to take one notable example, lead to the High Court’s judgment in the Teoh case, with continuing legislative question marks.
In November 1995, the Senate Legal and Constitutional Affairs References Committee tabled a report titled Trick or treaty? Commonwealth power to make and implement treaties. This report reflected concerns about the impact of international treaties on Australia’s federal system and the degree of consultation undertaken by government prior to ratification.
Included in its recommendations were the establishment by legislation of a joint treaties committee, the preparation of treaty impact statements for each treaty tabled in parliament, and increased efforts by government to identify and consult groups which may be affected by a treaty into which Australia proposes to enter. It is pleasing that a number of senators from that committee are now continuing their work as members of the joint committee. National interest analyses are now required for each treaty, and there is also a much greater emphasis on consulting those who might be concerned. A treaties council of COAG has been established also.
Treaties now will be tabled for 15 sitting days, at the end of which time the committee is expected to report to the parliament. Provision has been made also for the tabling of urgent treaties which cannot be tabled for 15 sitting days before action must be taken. I will say more on that later.
In its turn, the committee has advised the Minister for Foreign Affairs that, as soon as practicable after each tabling, it will inform him of those treaties on which it will report at the end of the 15-day period and those for which it will require additional time to report. In the latter cases, it is the committee’s expectation that binding treaty action will not be taken until it has tabled a report. This report completes the process for consideration of the 25 treaties tabled on 21 May and 18 June. It does not comment in detail on each of those treaties.
Highlighting briefly a number of issues, the committee found that the multilateral regional convention on hazardous wastes, the Waigani convention, is an appropriate way for the small countries of the South Pacific to deal with their hazardous waste, given their limited bureaucratic and other resources. Additionally, it has sought information on successful Australian tenders for work being carried out under the agreement with the Korean Peninsula Energy Development Organisation—KEDO. With regard to the agreement establishing the International Institute for Democracy and Electoral Assistance, the committee has called for a progress report on the institute after it has been in operation for 12 months and to validate its need.
The committee, after lengthy discussion, decided not to undertake an inquiry into the treaty with Indonesia on maintaining security at this time, but will consider an inquiry when it has been in operation for a year or so. It agreed also to undertake a relatively short inquiry into the subsidiary agreement between the governments of Australia and Japan concerning tuna long-line fishing. This has resulted in a large number of submissions. The response demonstrates that there is genuine interest in treaty making at the community level in Australia.
The committee also decided to investigate and report on the implications for Australia of the UN Convention to Combat Desertification, which was tabled in parliament on 5 December 1994. Although this falls outside the 15 sitting day rule, nothing in the committee’s resolution of appointment prevents it from examining treaties which have already been tabled. We intend to table a report on that as early as practicable in 1997.
It is still too early to assess with any precision the effectiveness of our approach and the new processes. …
On 3 December 1996, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Peter Slipper in the House of Representatives. Text of the question and answer follow (House of Representatives, Debates, 3 December 1996, p 7602):
Mr Slipper—
1) Further to the answer to question No 2285 (Hansard, 22 August 1995, page 121) concerning procedures for withdrawing from treaties which contain no provision for withdrawal, what procedures exist for withdrawing from treaties which contain no specific withdrawal provision and it is not established that
(a) the parties intended to admit the possibility of denunciation or withdrawal or
(b) a right of denunciation may be implied by the nature of the treaty.
2) Is it a fact that where a treaty may not include a specific withdrawal provision or it is not established that the parties intended to admit the possibility of denunciation or withdrawal or where a right of denunciation may not be implied by the nature of the treaty it is not possible to withdraw from the treaty without the consent of all other parties to the treaty.
Mr Downer—The answer to the honourable member’s question is as follows:
1) The first question relates to withdrawal of consent to be bound by the terms of a treaty at international law. In respect of treaties between parties to the Vienna Convention on the Law of Treaties of 23 May 1969 (`Vienna Convention’) that are entered into after the Vienna Convention’s entry into force (27 January 1980), that Convention sets out the international legal regime governing those treaties. Australia is a party to the Vienna Convention and would observe its terms. The Vienna Convention sets out the body of rules regulating denunciation of treaties falling within this category. In accordance with those rules, treaties containing no provision for denunciation could be denounced either with the consent of the parties (Article 54) or pursuant to the terms of Article 56, the terms of which the honourable member has reproduced in his first question. The Vienna Convention also sets out certain circumstances in which a party may withdraw from or denounce a treaty outside of the terms of Articles 54 and 56. These are addressed in response to the second question. In addition, there is some debate in the textbooks as to whether Article 56 of the Vienna Convention reflects the position at customary international law. The terms of the Vienna Convention are in many respects largely declaratory of customary international law. In relation to those treaties that are not governed by the provisions of the Vienna Convention the body of customary international law relating to treaties would govern such issues as denunciation.
2) The majority of treaties contain provision for denunciation and could be denounced according to those terms. Of those treaties which do not contain such a provision, a large number would fall within the terms of Article 56, which are rather broad. The types of treaties that are usually given as examples of treaties not subject to unilateral denunciation are peace treaties, treaties establishing boundaries, and important law-making treaties. In practice, there would be very few treaties that could not be denounced. There are detailed provisions in the Vienna Convention that set out other circumstances where under international law it would be possible to withdraw from or denounce a treaty without the consent of all other parties to the treaty. Articles 60-64 of the Vienna Convention set out these rights in some detail, and Section 4 of the Vienna Convention sets out the procedures that would be followed by a party invoking those rights. These provisions address such issues as denunciation because of a material breach of the treaty by the other (or another) party, supervening impossibility of performance, fundamental change of circumstances, severance of diplomatic or consular relations, or the emergence of a new peremptory norm of general international law. There are also issues that may arise under customary international law, such as desuetude and obsolescence, that could be relevant to withdrawal from a treaty. There is a large body of international legal jurisprudence regarding withdrawal from treaties that may be referred to in this regard, should the honourable member require further elucidation.
On 11 September 1996 the Attorney-General and Minister for Justice, Mr Daryl Williams, made the following comments concerning s 28 of the Legislative Instruments Bill 1996 which exempts an instrument from the scheme of consultations set up by the bill (House of Representatives, Debates, 11 September 1996, p 4085 at 4088):
The member for Dickson (Mr Tony Smith) referred to the exemption from consultations for certain instruments made in consequence of obligations of the Commonwealth under an international agreement—section 28(1)(3). This provides that the rule maker is not required to comply with the consultation provisions, if the rule maker is satisfied that the instrument merely meets an obligation of the Commonwealth under an international agreement by repeating or adopting the terms of all or part of an instrument for which the agreement provides, or to which the agreement makes reference.
The background to this goes back to the House of Representatives committee report. It considered the provision in the 1994 bill, which was in different terms. In the 1994 bill, it was contemplated that consultation would not be necessary where an obligation is imposed on the Commonwealth under an international agreement to make a legislative instrument. It was a much broader provision, and the committee was opposed to one in those terms.
Since the committee has reported, however, there have been significant reforms effected by the coalition government to the treaty-making processes, and there are significant mechanisms already in place for public consultation in relation to the entry into treaties. We have made provision for a treaties council, which will involve the states and territories and bodies making representations to them. We have made provision for the joint parliamentary treaties committee, which can review proposed international instruments, and for the tabling of proposed international instruments 15 days before they become binding on Australia.
In the light of that, there is significant opportunity for public consultation in relation to the entry into the obligation. That is not to say that that consultation will be the same as consultation in relation to a proposed regulation that would implement the international obligation. But there is some overlap in what would be dealt with in the two consultation processes. All that is set out in the proposed section 28 to be exempted is an instrument that merely repeats or adopts verbatim, in effect, the terms of the agreement in question. It is a very narrow exemption, and I think that it meets the requirement.
On 21November 1996, the Attorney-General, Mr Daryl Williams, answered a question on notice from Mr Colin Hollis in the House of Representatives. The text of the question and answer follow (House of Representatives, Debates, 21 November 1996, p 7361):
Mr Hollis—Which international (a) conventions, (b) treaties and (c) agreements have been implemented by federal legislation since the answer to question No 2351 (Hansard, 23 August 1995, page 380).
Mr Williams—The answer to the honourable member’s question is as follows:
I note that the honourable member has asked for this information in a series of questions going back some years. Clearly, there is a need for this information to be made publicly available. In the Government’s response to the Senate Legal and Constitutional References Committee report Trick or Treaty? Commonwealth Power to Make and Implement Treaties, a commitment was made to provide an annual list to the Parliament of Commonwealth legislation specifically implementing treaties. The complete 1995 list has been compiled and is set out below. The 1996 list is under preparation and will be tabled as soon as possible in 1997.
I am informed that the following Acts passed by the Federal Parliament during 1995 expressly implemented international conventions, treaties or agreements. Included under the name of each Act is a brief explanation prepared by my Department which sets out the relevant international convention, treaty or agreement or other matter of international law. Organisation for Economic Co-operation and Development (Financial Support Fund) Repeal Act 1995 (No. 13 of 1995)
This Act repealed the Organisation for Economic Co-operation and Development (Financial Support Fund) Act 1976 which authorised the ratification by Australia of the agreement to establish a financial support fund among OECD members. The fund was designed to assist OECD members facing serious external account difficulties following the oil price crisis of 1973–74 and was intended to supplement, on a last resource basis, other sources of credit to which members encountering serious difficulties had recourse. The Act was never proclaimed, however, because the fund was never brought into effect due to the failure of some other OECD countries to ratify the agreement.
International War Crimes Tribunals Act 1995 (No. 18 of 1995) and International War Crimes Tribunals (Consequential Amendments) Act 1995 (No. 19 of 1995)
These Acts provided legislative authority for Commonwealth co-operation with the Former Yugoslavia Tribunal and the Rwanda Tribunal in the investigation and prosecution of war crimes and provided for the Tribunals to sit in Australia if required. Income Tax (International Agreements) Amendment Act 1995 (No. 22 of 1995)
This Act gave legislative force to the provisions of the renegotiated comprehensive double taxation agreement between Australia and New Zealand signed on 27 January 1995. The Act inserted the text of the Agreement into the Income Tax (International Agreements) Act 1953 and made consequential amendments to that Act and to a number of other Acts. Weapons of Mass Destruction (Prevention of Proliferation) Act 1995 (No. 38 of 1995)
The object of this Act was to ensure, as far as possible, that goods and services were not supplied or exported from Australia or by Australian citizens, residents or companies in circumstances where they would or might be used in the development, production, acquisition or stockpiling of weapons that are capable of causing mass destruction or of missiles that are capable of delivering such weapons. The Act implemented in part Australia’s obligations under the Biological Weapons Convention, the Non-Proliferation Treaty and the Chemical Weapons Convention. Overseas Missions (Privileges and Immunities) Act 1995 (No 57 of 1995) and Overseas Missions (Privileges and Immunities)(Consequential Amendments) Act 1995 (No. 58 of 1995)
These Acts provided that privileges and immunities could be conferred upon the premises of, and persons associated with, certain overseas missions in Australia which represent self governing or autonomous foreign territories that are not states and are not recognised by Australia as states such as Hong Kong, New Caledonia and the Cook Islands. Transport Legislation Amendment Act (No. 2) 1995 (No 89 of 1995)
On 1 November 1994, Australia entered into a treaty with the United States and Canada which requires each country to ban smoking on all passenger flights operated by its airlines between points in the territory of one party to the treaty and points in the territory of another party. Amendments to the Air Navigation Act 1920 under this Act extended the application of regulations banning smoking to foreign registered aircraft operated by Australian carriers overseas. Further amendments were made to the Air Navigation Act relating to aviation security including hijacking and terrorism. Transport Legislation Amendment Act 1995 (No. 95 of 1995)
Among a range of other amendments, this Act amended Part IV of the Navigation Act 1912 to enable Australia to adopt a resolution of the International Maritime Organisation that will permit the early implementation of a system of ship survey and certification that is harmonised between the International Convention for the Safety of Life at Sea 1974 , the International Convention on Load Lines 1966 and the International Convention for the Prevention of Pollution from Ships 1973.
The Navigation Act was also amended to incorporate the terms and principles adopted by the International Maritime Organisation in its International Convention on Salvage 1989. The convention provides greater incentives for effective and timely salvage operations and to assist with the protection of the environment.
The Act also made certain amendments to the Protection of the Sea Legislation Amendment Act 1986 to enable Australia to accede to the 1992 Protocol amending the International Convention on Civil Liability for Oil Pollution Damage 1969. Racial Hatred Act 1995 (No. 101 of 1995)
This Act, which inserted a new Part IIA into the Racial Discrimination Act 1975, created a civil prohibition of offensive behaviour based on racial hatred and made such behaviour a ground for making a complaint to the Human Rights and Equal Opportunity Commission. The Act gave effect to certain obligations under the Convention on the Elimination of all Forms of Racial Discrimination and the International Covenant on Civil and Political Rights. Trade Marks Act 1995 (No. 119 of 1995)
The Trade Marks Act 1995 was the result of an extensive review of Australia’s trade marks legislation which was redrafted to meet Australia’s obligations relating to trade marks under the Agreement Establishing the World Trade Organization. Wildlife Protection (Regulation of Exports and Imports) Amendments Act 1995 (No. 121 of 1995)
This Act enhanced the extent to which Australia discharges its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Convention on Biological Diversity. The Act provided an improved administrative framework, strengthened measures against illegal wildlife trafficking and included measures in support of the conservation of Australia’s biodiversity. The changes largely arose from recommendations of the Ley Report which reviewed the Act having particular regard to Australia’s obligations under CITES. Ozone Protection Amendment Act 1995 (No. 124 of 1995), Ozone Protection (Licence Fees–Manufacture) Act 1995 (No. 125 of 1995) and the Ozone Protection (Licence Fees–Imports) Act 1995 (No. 126 of 1995)
These three Acts amended the existing legislative scheme dealing with ozone protection to reflect Australia’s evolving obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer. The Ozone Protection Amendment Act amended the Ozone Protection Act 1989. Among other things, the Amendment Act repealed the existing licence and quota system to stop the further import or manufacture of chlorofluorocarbons, halon, methyl chloroform or carbon tetrachloride consistent with Australia’s obligations under the Montreal Protocol. International Tax Agreements Amendment Act 1995 (No. 127 of 1995)
This Act provided legislative authority for the entry into force of the comprehensive double taxation agreement between Australia and the Czech Republic. The Act inserted the text of the agreement into the International Tax Agreements Act 1953 as a schedule to that Act. Customs Tariff Act 1995 (No. 147 of 1995)
This Act replaced the Customs Tariff Act 1987. The new Act incorporated some 350 changes to the International Convention on the Harmonized Commodity Description and Coding System agreed to by the World Customs Organisation in 1993. Australia became a party to the Convention in 1987. The Act gave effect to Australia’s obligations to align its tariff structure with the international standard. National Food Authority Amendment Act 1995 (No. 152 of 1995)
This Act established a joint food standards system in Australian and New Zealand including the establishment of a joint standards agency, the Australia New Zealand Food Standards Authority. The Act implemented the terms of a bilateral Agreement with New Zealand Establishing a System for the Development of Joint Food Standards. Sex Discrimination Amendment Act 1995 (No. 165 of 1995)
This Act amended the Sex Discrimination Act 1984 in line with Australia’s obligations under the Convention on the Elimination of all Forms of Discrimination Against Women and other international instruments. The Act introduced a general prohibition on discrimination and an equality before the law provision into the new preamble of the Sex Discrimination Act, made it clear that it was unlawful to discriminate on the ground of potential pregnancy and removed the reasonableness test for direct discrimination on the ground of pregnancy. The Act also amended the special measures provision to reflect the positive role of special measures in the achievement of equality. Family Law Reform Act 1995 (No. 167 of 1995)
This Act substantially amended the Family Law Act 1975. Included in the Act was an amendment to insert a new section to allow regulations to be made which will implement the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. The section will come into operation when the Convention enters into force for Australia. In addition, the objects section of Part VII of the Reform Act dealing with children recognised a number of rights consistently with the Convention on the Rights of the Child.
On 10 September 1996, the Attorney-General, Mr Daryl Williams, answered a question on notice from Mr Daryl Melham in the House of Representatives. The text of the question and answer follow (House of Representatives, Debates, 10 September 1996, p 7602):
Mr Melham—Has the Government accepted the advice of the Commonwealth Criminal Law Review Committee that legislation be enacted on the lines of the UK Genocide Act 1989 to implement fully Australia’s obligations under the Genocide Convention (Paris, 9 December 1948).
Mr Williams—The answer to the honourable member’s question is as follows:
The Convention on the Prevention and Punishment of the Crime of Genocide does not require the creation of a specific offence of genocide provided other laws of the State party adequately give effect to the provisions of the Convention.
While the Government is advised that the common law and criminal codes of the States and Territories provide adequate punishment for some acts prohibited by the Convention, the Government is currently considering this issue to determine whether further legislation is necessary.
On 20 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer answered a question on notice from Mr Barry Jones. Text of the question and answer follow (House of Representatives, Debates, 20 August 1996, p 3287):
Mr Jones—
1) Was Australia among the 70 states which participated in the Diplomatic Conference in Rome from 7 to 24 June 1995 which adopted the Unidroit Convention on Stolen or Illegally Exported Cultural Objects. …
3) Did Australia vote in favour of adopting the convention.
4) Has Australia signed the convention; if not, what is the timetable for doing so.
Mr Downer—The answer to the honourable member’s question is as follows:
1) Yes. …
3) Yes.
4) Australia has not signed the Convention, nor has it established a timetable for doing so. Before any decision can take place, inter-agency consideration at Commonwealth level will be required, together with consultations with State and Territory Governments, collecting institutions and other stakeholders.
On 9 September 1996, the Minister for Foreign Affairs, in response to a question on notice from Mr Daryl Melham provided the House of Representatives with the following information concerning whether ratification or accession to treaties would be considered at the 27th South Pacific Forum (House of Representatives, Debates, 9 September 1996, p 3814):
The South Pacific Forum Secretariat has advised that the 27th South Pacific Forum will consider reports updating the status of signature or ratification of the South Pacific Nuclear Free Zone Treaty and the Regional Convention on Hazardous Wastes, both of which were drawn up under the auspices of the South Pacific Forum. The Forum agenda does not currently include consideration of any other conventions drawn up under the organisations listed. Heads of Government may of course raise for discussion at the meeting any matter they may wish in addition to the advised.
On 28 March 1998, in Geneva, a statement was made on behalf of the Australian Delegation to the Fifty-Second Session of the Commission on Human Rights. The following is an extract of the statement concerning the UN treaty system:
As we are all aware, the UN treaty system is under serious threat because of a mounting workload and backlogs for treaty bodies, the increasing burden or reporting requirements on states and the lack of resources available to the centre for human rights to service the treaty bodies properly. At a structural level, the overlapping provisions of the treaties themselves can lead to duplication in reporting and the potential for conflicting human rights jurisprudence.
Professor Alston’s interim report indicates a strategy to overhaul the system. Australia believes that priority should be give for this task and commends the following proposals in the report:
• Development of a strategy to achieve universal ratification of the six core human rights instruments by the year 2000,including the provision of appropriate advisory services in case of need to assist States to meet their reporting obligations once they become parties to the instruments;
• Reinforcement of the catalytic role of international bodies in encouraging national level institutions, organisations and structures in society safeguarding human rights and disseminating information about them;
• Identification of measures to address the problems of overdue reports and backlogs in the consideration of reports;
• In the longer term, reducing the number of treaty bodies and the number of reports required;
• Replacing the requirement for comprehensive periodic reports with thematic specifically tailored reports.
We believe that these proposals would enhance the impact of the treaty system and significantly ease the reporting burden on states.
Upon the dissolution of the Socialist Federal Republic of Yugoslavia, Australia exchanged notes with the Ministry of Foreign Affairs for the Republic of Croatia concerning the continuing in force of various treaties between Australia and the Republic of Croatia. The text of the Australian note, which was agreed to by the Ministry of Foreign Affairs of the Republic of Croatia on 3 September 1996 follows:
The Australian Embassy presents its complements to the Ministry of Foreign Affairs of the Republic of Croatia and has the honour to propose that the following treaties, which were in force between Australia and the Socialist Federal Republic of Yugoslavia at the time of the dissolution of that state, be regarded as continuing in force between the Republic of Croatia and Australia:
Treaty (between Great Britain and Serbia) for the mutual Extradition of Fugitive Criminals (1900);
Convention (between the United Kingdom and Yugoslavia) on Legal Proceedings in Civil Commercial Matters (1936);
Agreement regarding the Exchange of Official Publications (1953);
Agreement on the Abolition of Visa Fees (1969);
Agreement on the Residence and Employment of Yugoslav Citizens in Australia (1970);
Trade Agreement (1970); and
Agreement on Cultural Cooperation (1976)
If the Ministry of Foreign Affairs consents to the foregoing proposal, the Embassy has the further honour to propose that this note and the Ministry of Foreign Affair’s confirmatory note in reply constitute an understanding between the two countries which will come into effect upon the date of the note in reply.
The Australian Embassy also has the honour to advise the Ministry of Foreign Affairs that as set out in the Department of Foreign Affairs and Trade’s note no. BLA 96/42 of 13 May 1996, the continued participation of the Australian Government in the Agreement on the Abolition of Visa Fees (1969); the Agreement on the Residence and Employment of Yugoslav citizens in Australia (1970) and the Agreement on Cultural Cooperation (1976) is the subject of review.
The Australian Embassy avails itself of this opportunity to renew to the Ministry of Foreign Affairs the assurances of its highest consideration.
Zagreb: 2 September 1996.
On 20 August 1996, the Minister for Trade, Mr Tim Fischer answered a question on notice from Mr Laurie Ferguson in the House of Representatives. Text of the question and answer follow (House of Representatives, Debates, 20 August 1996, p 3290):
Mr Ferguson—
1) How many signatories are there to the World Trade Organization Agreement on Government Procurement.
2) Is he able to say how many states of the USA are covered by the agreement.
3) Have any signatories to the agreement requested exclusions; if so, in each case, what exclusions.
4) Will Australian industry development programs be affected by the operation of the agreement; if so, which programs.
5) What progress has been made in assessing the potential impact of the agreement upon Australia with respect to equal employment opportunity, occupational health and safety and environmental stipulations in purchasing.
Mr Tim Fischer—The answer to the honourable member’s question is as follows:
1) There were 22 signatories to the World Trade Organization Agreement on Government Procurement as at February 1996. These were: Canada, the United States, Japan, the 15 member states of the European Union, the Republic of Korea, Israel, Switzerland and Norway. Singapore, Liechtenstein and the Kingdom of the Netherlands with respect to Aruba have applied for membership. Chinese Taipei has applied to accede in the context of its WTO accession negotiations.
2) The agreement covers thirty-seven (37) states of the United States as well as the Federal government. A list of entities in the states which procure in accordance with the provisions of the agreement appears in WTO document, WT/Let/57 of 19 January 1996.
3) Yes. No signatory has offered 100 per cent of its government procurement for coverage under the agreement. In most cases, signatories have adopted a positive list approach in nominating the entities and sectors covered. The Annexes to the agreement provide details of the coverage agreed for each signatory in terms of purchasing entities, goods and services. Annex 1 lists central government entities and sets out any qualifications that have been placed on coverage of goods procurement by those entities. Annex 2 deals with sub-central entities, Annex 3 with government enterprises, Annex 4 lists services covered and Annex 5 lists construction services covered. The General Notes attached to each signatories’ offer lists specific derogations and exceptions as well as reciprocity conditions negotiated. The annexes for each signatory and the General Notes are included in and form part of the WTO Agreement on Government Procurement. Amended Annexes 2 and 3 for the US and Annex 1 for the European Communities are provided in WTO document WT/Let/57.
4) No. The operation of the agreement does not affect Australian industry development programs as Australia is not a signatory to the agreement and is not required to join it. Should the Government decide to seek accession to the agreement, industry development programs which involve offsets as described in Article XVI and footnote 7 of the agreement could be affected. However, the Article would not have any effect outside the coverage of the agreement, for example in relation to exceptions to the agreement and exclusions or derogations negotiated by the parties. In order for a program to be affected it would need to be applied by entities nominated by Australia, involve sectors nominated for coverage and involve procurement above the stipulated threshold value applicable to the entity. No decision has been made by the Government on membership or non-membership of the agreement and no consideration has been given to the details of potential coverage at this stage. The Commonwealth’s discussion paper, Australia and the WTO Agreement on Government Procurement (DFAT/DAS, May 1995) provides a discussion of the issue in the context of potential implications of membership of the agreement.
5) The issues of equal employment opportunity, occupational health and safety and environmental stipulations in purchasing have been examined by officials in the context of the on-going review of the implications for Australia of possible membership or continuing non-membership of the agreement. While certainty on such matters can only be achieved in a negotiation process, it is DFAT’s assessment that accession would not affect Australia’s policy flexibility in relation to these matters if their preparation, adoption or application were not with a view to or with the effect of, creating unnecessary obstacles to international trade. Article VI, and related footnotes, of the agreement are applicable in this instance.
In a news release of 11 December 1996 announcing a new Australian Ambassador and Permanent Representative to the World Trade Organisation (WTO), the Deputy Prime Minister and Minister for Trade, Mr Tim Fischer and the Minister for Foreign Affairs, Mr Alexander Downer, made the following remarks concerning the WTO:
Since the establishment of the WTO, Australia’s WTO Mission in Geneva has played a key role in the achievement of Australia’s trade policy goals. Agreements negotiated during the Uruguay Round of multilateral trade negotiations significantly expanded the reach of the multilateral trading system so that it now encompasses trade in services and intellectual property, as well as goods and new rules on investment.
A rules-based multilateral trading system is essential to Australia’s economic growth and sustained prosperity. Trade is a major factor in the creation of decent jobs in Australia. The multilateral trading system provides stable and predictable rules through which Australian businesses can expand their market access. It is also the main means for settling trade disputes between countries.
These elements of the system enable Australia to secure, protect and defend its market access overseas.
On 8 July 1996, the Attorney-General, Mr Daryl Williams, issued the following news release:
In a bid to encourage openness and fairness in the deliberations on the United Nations Human Rights Committee, I have taken steps to seek to improve the procedures of the Committee.
The Australian Government has been concerned with certain aspect of the Committee’s procedures. One area of concern is the restriction that the Committee places on the publication of proceedings.
As a first step, I have asked the Chairman of the Human Rights Committee at the centre for Human rights in Geneva to reverse the current approach which prevents parties form giving publicity to any submissions while a communication is under consideration.
I believe submissions should be made public once a communication has been examined and found admissible by the Committee. The Committee could retain the right to designate a communication confidential on request by individuals fearing reprisal or where it considers it appropriate.
I expect that the Committee will consider the Australian Government’s request when it meets in Geneva next month.
The Human Rights Committee is established by the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party. The Committee considers complaints by individuals alleging breaches by a country of human rights obligations contained in the ICCPR.
The operation of the Human Rights Committee has been the subject of widespread interest by the Australian community and by parliamentarians and academics.
Australia has long taken the view that a strong international human rights system benefits Australia and the international community. I will continue to push to ensure that mechanisms for international human rights complaints are open and fair.
On 30 September 1996, the Minister for Foreign Affairs, Mr Alexander Downer, made a statement entitled ‘The United Nations for the 21st Century’ to the Fifty-first General Assembly of the United Nations in New York. The text of the statement follows:
Your Excellency, Mr Razali, I warmly congratulate you on your election as President of this Assembly. As a close neighbour of Malaysia, Australia will confidently rely on your experience and sound judgement as you preside over this important session of the Assembly.
A year ago when the Assembly adopted the Declaration on the Occasion of the 50th Anniversary of the United Nations, it made an important promise—to give to the 21st Century a United Nations which would serve effectively the peoples in whose name it was established.
We must keep this promise, but to do so we will need a clear view of contemporary circumstances and those which we can see unfolding into the 21st Century.
The landscape that was revealed at the end of the Cold War, just a little over five years ago, has many new features, some of which are still not clear.
What is clear, however, is that we face new challenges and we have new opportunities that few of us would have imagined, five years ago.
The most compelling of these opportunities is to take future steps in nuclear arms control and disarmament. The possibility of taking such steps is surely a principal outcome of the end of the Cold War.
This was firmly underlined last Tuesday when, in a single day, 67 countries signed the Comprehensive Nuclear Test Ban Treaty. That number, only a week later, is now over 100.
But beyond this achievement lies another major opportunity; this is, to turn our national and international attention to enhancing human security, in all its aspects.
Our dynamic times have presented us with new problems. Such problems include the major non-military threats to security—the clandestine arms trade and the narcotics trade; HIV/AIDS; the need to stabilise the rate of growth of the world’s population; and, major threats to the environment.
The elemental characteristics of such non-military threats to security are that: they cannot be defeated by weapons, they cross state boundaries.
These characteristics lead to one central conclusion, that is, action on these problems must be the subject of international cooperation.
Multilateral cooperation can, does, and must take many forms. But, the role of the United Nations is unique, because of its universality and because of the rules we find in the Charter of the United Nations.
It is for these reasons: the nature of the opportunities we have before us; the problems we face; and, the unique role and capability of the United Nations, that we must keep last year’s promise of a United Nations fit for the challenges of the 21st Century. Australia’s Commitment
Australia’s particular commitment to the United Nations is founded on the belief, articulated as far back as the 1950s by the then Foreign Minister, Richard Casey, that the United Nations represents the practical effort of the governments and peoples of the world to attain the high goals to which they are pledged through the UN Charter—international peace and security, and the economic and social advancement of all peoples.
Australia has contributed readily to achieving those goals. Whether by paying its financial contributions in full and on time, by providing personnel to peacekeeping operations, or through its contributions to development programs, Australia has been determined to see the United Nations succeed.
I commit Australia, today, to continuing such involvement in the work of the United Nations. The Disarmament Challenge
At present a window of opportunity in arms control and disarmament is open to us. If we do not take it soon, it will close. Large and sophisticated nuclear and conventional arsenals continue to exist. In a number of regions, suspicions remain close to the surface. The risks of the spread of weapons of mass destruction have, in certain respects, increased.
In Australia’s view, two tasks are fundamental. First, building and strengthening international institutions and instruments and, secondly, developing new thinking in arms control and disarmament so as to push the international agenda forward in constructive and realistic ways.To achieve progress with institutions and instruments, members of the United Nations need to work together on at least six priorities. These priorities for international cooperation are to:
• make the Non-Proliferation Treaty (NPT) and its enhanced review process operate more effectively;
• strengthen International Atomic Energy Agency (IAEA) safeguards;
• achieve an early start for the Organisation for the Prohibition of Chemical Weapons;
• reach early agreement on effective verification machinery for the Biological Weapons Convention;
• pursue the goal of a global ban on anti-personnel landmines in conjunction with a global approach to the problem of de-mining; and to
• achieve a ban on the production of fissile materials for nuclear weapons.
As we pursue these priorities in the multilateral system, we should keep firmly in mind that progress in regional security, particularly in regions of weapons proliferation concern, will make a crucial contribution.
The Comprehensive Test Ban Treaty (CTBT) is of course the immediate priority. Its adoption by the UN General Assembly and its opening for signature on 24 September were major milestones for the international community.
This Treaty was a product of our times. It flowed from a long and commonly held global concern. its death was something the international community simply could not allow.
Australia was, therefore, prepared to take the lead in bringing the Treaty to the General Assembly. The overwhelming support for the resolution demonstrated the strength of international feeling against nuclear testing. This Treaty was wanted and needed, but it has also helped change the international climate.
We can now reasonably hope and expect that nuclear testing will not be part of the future to be faced by succeeding generations. And in a world with a mixed history on controlling the development and spread of destructive weaponry, that is something of which we can all be proud.
This Treaty must become universal. We urge all those countries which have not yet done so, to sign and ratify the Treaty as soon as possible so that it can be fully implemented, as quickly as possible.
There is no merit in the argument that says because there is more to be done in nuclear arms control and disarmament we should, in some way, scorn or reject a Treaty which bans all nuclear explosions forever.
This ban has intrinsic value.
We must now keep up the positive momentum generated by the adoption of the Treaty.
This brings me to the second task—developing new ideas.
Because building institutions and strengthening international instruments will not be enough, the international community must also developing imaginative new ways of guiding the world into the next century.
The Australian Government established the Canberra Commission on the Elimination of Nuclear Weapons to address the questions of whether a nuclear weapons free world is feasible and, if so, the measures which could be taken to attain that objective.
I am delighted to confirm that the Commission has more than met Australia’s expectations. This report will make a major contribution to international thinking and discussion on nuclear disarmament. The Australian Government will take it forward by circulating it today in this Chamber, will present it to the Secretary-General tomorrow and introduce it to the Conference on Disarmament in January.
The Canberra Commission report recommends a political commitment by the nuclear weapon states to the elimination of nuclear weapons. This is the first and central requirement.The report then sets out six “immediate steps”:
taking nuclear forces off alert;
• removal of warheads from delivery vehicles;
• ending the deployment of non-strategic nuclear weapons;
• ending nuclear testing;
• initiating negotiations to further reduce United States and Russian nuclear arsenals; and
• an agreement amongst the nuclear weapon states on reciprocal no first use undertakings, and of a non-use undertaking by them in relation to the non-nuclear weapon states.
The Commission also recommends three “reinforcing steps”:
• action to prevent further horizontal proliferation;
• developing verification arrangements for a nuclear weapons free world; and
• the cessation of the production of fissile material for nuclear explosive purposes.
The Commission placed a particular emphasis on the importance of effective verification in the achievement and maintenance of a nuclear weapons free world.
Having at last, after 33 years, met the challenge of CTBT, the international community must now push on with further practical and realistic measures on nuclear arms control and disarmament.
As already indicated, one such measure is the negotiation of a convention under which it would be agreed that there will be no further manufacturing of weapons-grade fissile material. This convention should be sought now.
Any discussion of arms control and disarmament, in today’s world, which failed to address the question of landmines would be sadly incomplete. These hideous and diabolically inexpensive weapons, must be banned. Australia will support efforts that will be made at this Assembly to take the next step towards the negotiation of an international convention with that effect.
But, in the meantime, there are in excess of 100 million of these maiming weapons distributed in the soil of too many countries. De-mining must proceed at a far faster rate than has been the case in the past. There have been technological barriers to increasing that rate and Australia has, therefore, proposed that a technology working group be established amongst interested and capable countries with the purpose of designing the equipment required for de-mining on a far larger and quicker scale.
If there is any doubt about the need for this action, I record with this Assembly that if the current rate of de-mining in Cambodia were to be maintained, that country, which has struggled so hard to repair itself, would not be free of these mines for a further 130 years. This must be unacceptable to all. That is why the Australian Government recently committed A$12 million to practical de-mining initiatives in the war ravaged fields within our own region.
Security Council Reform
Security Council reform is another, vitally important, item on the peace and security agenda. The three key issues to be tackled are expansion, transparency and the effectiveness of sanctions regimes.
There is a general acceptance now that the Security Council must be expanded and modernised if it is to manage international peace and security more effectively.
Although Australia wants to avoid making the Council too unwieldy, there can be little doubt that its membership needs to reflect better current geopolitical and economic circumstances. Expanding the membership is an important element in achieving this, and Australia believes an expansion up to a total Council membership of 25 states would be reasonable.
This brings me to the more contentious point of permanent as against non-permanent membership. Australia has made clear that it supports the claims of Japan and Germany to permanent membership. This is the very least the United Nations can do to acknowledge their major-power status and the financial contribution they are making to this organisation.
Australia also advocates permanent seats on the Council for under-represented regions. As to how that is achieved, we remain flexible. Whether these seats are filled by a single member, or rotate among leading member states agreed on by regional groupings, needs to be discussed further, primarily by those regions concerned.
We also see scope for an increase in the number of non-permanent members of the Council, again, in the interests of ensuring greater balance in representation.
I turn now to the need for greater transparency in Security Council processes. Consultative mechanisms have improved in recent times, notably between the Secretariat and troop contributing countries, but more needs toe done. Australia is committed to trying to improve the way in which the Security Council interacts with non-members so that the Council’s activities become more responsive to the United Nations as a whole.
More needs to be done, too, to build the Council’s relationship with regional organisations. Good progress has been recorded to date, but UN and regional organisations should meet regularly in order to develop further the appropriate division of responsibilities.
The Council also has an important role to play in preventing the proliferation of weapons of mass destruction and enhancing the effectiveness of the non-proliferation regime.Australia wants to see improvements in the effectiveness of UN sanctions, because we recognise that the Security Council’s use of collective sanctions continues to be an important and, at times, a contentious enforcement measure. The effectiveness of sanctions regimes could be improved in three ways:
• clearer drafting of Security Council resolutions;
• providing specific objectives and realistic time frames; and
• through relevant Sanctions Committees providing clear interpretative guidance on implementation.
These are changes which are essential for the Security Council’s dynamism. We need to press ahead with them to ensure that the Council reflects modern-day circumstances and realities. Peacekeeping and Preventive Approaches
Our contemporary circumstances have opened up new needs and prospects for peacekeeping and preventive diplomacy.
Initial post-Cold War hopes about the capabilities of the Security Council have been tempered. It has become clear that many conflicts are intractable. Experience has taught us that it is difficult to reach agreement on suitable approaches, and to find enough resources, particularly in the area of peacekeeping.
The Security Council must be realistic in the implementation of its Charter responsibilities. It must resist pressure to embark on missions before it has completed adequate preparations, developed a focused sense of the mission’s goals, and agreed on a clearly articulated mandate.
At this very moment, the United Nations is confronted with major challenges in such diverse situations as Cyprus, Burundi and Liberia. Australia has been contributing personnel to the UN force in Cyprus, for example, for over 20 years and has been saddened by the recent incidents of violence there. The time has come to resolve this situation, which requires the assistance of all parties.
One very important area of reform for UN peacekeeping is to establish an enhanced rapid reaction capability. There have been many proposals on this issue, but the Australian Government believes that the Canadian study, “Towards a Rapid Reaction Capability for the United Nations”, contains some commendable recommendations, including the development of a deployable, operational-level headquarters to strengthen planning for operations.
Australia welcomes recent moves by the Department of Peacekeeping Operations to begin implementing measures aimed at improving the UN’s rapid reaction capability. But, in taking these measures forward, the UN should consult adequately with all Member States.
Australia is also keen to see the United Nations develop the preventive diplomacy agenda, and it welcomes the greater resources the UN Secretariat now devotes to such activity. The Security Council, the General Assembly and the good offices of the Secretary-General, as well as regional arrangements and agencies, have important roles to play in preventive diplomacy. Australia supports greater use of Chapter VI of the Charter on the pacific settlement of disputes. Article 33 is particularly important. The Security Council can use it to undertake a leadership role, by calling on disputing parties to seek a solution using negotiation, mediation and other peaceful means. Non-military Threats to Security
As indicated at the beginning of this statement, one of the chief outcomes of the end of the Cold War must surely be an increase in our ability to turn away from military concerns, to give a greater degree of attention to threats to the security of individuals as distinct from those threats to the security of States which have dominated our thinking in the past, important and basic though they have been and remain.
In today’s world and in the world we see unfolding into the 21st Century the security of far too many people is threatened in ways no less immediate than the threat of the gun.
I have in mind narcotics, HIV/AIDS, and major threats to the environment. These threats cannot be dealt with effectively by States acting alone. Sometimes they require new international law, but more specifically they require political will to defeat them and to foster cooperation amongst nations to ensure maximum effectiveness of action.
The United Nations is the ideal environment in which to develop such cooperation. It is here that the world is represented. We have here a tradition of debate, of discussion, of identification of problems and of consensus. We have the ability to make law, when it is necessary. Above all, we have pledged ourselves to defending and providing a decent standard of living to the peoples we represent.
There is also a regional role, and in that context, Australia was pleased to have promoted the concept of a Regional HIV/AIDS Ministers’ Meeting at this year’s ASEAN Post-Ministerial Conference.
As we move towards the 21st Century, it will be crucial to the execution of that responsibility to ensure that we have a healthy United Nations which is devoted to international cooperation aimed at defeating the major non-military threats to the security of the human family. These threats are tragically evident to us today. They will only become larger if we do not agree, now, to begin cooperative action to defeat them.
History will surely judge our generation harshly if, having identified the problems of human security, we fail for lack of will to address their solutions. Development
Another great requirement of our times is the economic needs of people and to promote development.
Much has been done through the United Nations and its agencies to advance the development cause. They have been pivotal to the emergence of a multilateral approach in which institutions with special competence like the Specialised Agencies, the International Monetary Fund and the World Bank, together with policy deliberative bodies such as the General Assembly and the Economic and Social Council, have complementary roles to play.
Development is about more than just economic growth, however. There is also the need for: internal stability, sound environmental management, a vigorous civil society and a lively democracy. The United Nations I uniquely placed to build consensus on how to advance these various elements of the development agenda.
In this context, Australia welcomes the constructive outcomes achieved at the ninth UN Conference on Trade and Development (UNCTAD) Ministerial Conference held in Midrand, South Africa, earlier this year. The decisions taken there should help developing countries benefit from the opportunities of economic globalisation.
We also underline the importance of encouraging investment, technology transfers and providing trade opportunities in stimulating economic development. Such development is the only enduring foundation of independence and economic and social well-being.
It is in Africa that these development challenges are most stark. Rich in promise yet wearied by emergencies, Africa stands today at a decisive juncture in its history.
African leaders seized the moment with the Organisation of African Unity’s1995 Cairo Agenda for Action, in which they called for immediate action to implement the development strategies for which an international consensus now exists. The United Nations responded this year with the launch of a10-year, US$25 billion, UN System-wide Special Initiative on Africa.
The Australian Government welcomes the Special Initiative as a concrete demonstration of the international community’s concern with Africa. The international community cannot allow disease, poverty, war and underdevelopment to become entrenched in the 53 nations—almost one-third of UN Member States—which make up the African continent.
The world must continue to seek ways to break the poverty cycle in Africa so that its potential for economic development is realised. Sustainable economic development is essential to overcome poverty, disease, and conflict.
The United Nations system needs to give greater focus and impetus to the development effort in Africa. Human Rights Diplomacy
I now turn to the issue of human rights.
Human rights are important in international relations for two main reasons. First, political instability and major conflict can result where human rights are breached or are under threat and, secondly, the freedom and dignity of individuals is, in itself, a fundamental value to the world community.
The Australian Government aims for practical outcomes that will improve the lives of individual men, women and children. We recognise the importance of dialogue and cooperation, based on mutual respect. In addition to public and private diplomacy, Australia’s approach to the improvement of human rights also encompasses development cooperation.
Australia strongly supports the development of strong and independent national human rights institutions. For example, Australia provided financial support for a workshop of Asia Pacific national human rights institutions which agreed to establish an informal forum to work for the strengthening and further development of such institutions in the region. Australia has also provided financial support to the UN for the creation of a position of Special Adviser to the UN High Commissioner for Human Rights on national human rights institutions. United Nations Reform
Finally, it is important to address the issue of reform of the United Nations.
Much work still needs to be done to bring about greater efficiency and effectiveness in the UN and its Specialised Agencies.
While Australia applauds the dedication and hard work of the General Assembly working groups which were set up in 1995, Member States must not lose sight of the fact that, to achieve real change, the groups have to come up with realistic and achievable recommendations. Those recommendations must in turn lead to practical and measurable outcomes.
It is important that the work of the groups is focused and that their momentum is restored so that early and positive outcomes can be achieved. We must all commit ourselves to this end and to bringing about structured change within the United Nations.
It is also crucial that the financial situation of the UN be repaired.
Australia believes that all Members should pay their contributions in full and on time. We, therefore, welcome recent moves by some countries to pay their arrears.
It is time to establish a revised scale of assessed contributions which more fairly reflects what Governments can pay. The current minimum payment is too high for many small-economy countries and Australia would like to see it reduced or even removed.
These are the reforms which Australia believes are necessary to equip the United Nations for its role in the 21st Century.
It is in this overall context, that Australia is deeply committed to contributing to the UN’s goal of maintaining international peace and security in an active way. Serving a term as a non-permanent member of the Security Council during 1997-98 would enable Australia to make a substantive contribution to that goal and to work for a more effective, modernised and transparent Council. That is why we have asked for the support of Member States at the elections to be held in a few weeks from now. Conclusion
Let me conclude by summing up what I have said today.
The United Nations is unique and needed but it must pursue and work on the basis of a relevant Agenda.
This is the central point. The United Nations must be put to work on the Agenda of the 21st Century.
Much work needs to be done to tackle the key challenges which face the United Nations. Only a sustained, cooperative effort among all Member States will bring success.
Australia will make that effort.
On 22 October 1996 Australia unsuccessfully bid to be elected to the United Nations Security Council. In a news release of the same day the Minister for Foreign Affairs, Mr Alexander Downer noted—
Australia will maintain its long-standing commitment to the United Nations, which continues to provide an important forum for advancing Australian interests.
In a news release on 14 December 1996 to welcome the nomination of Kofi Annan by the Security Council as the new Secretary-General of the United Nations, Mr Downer commented that the UN needed to be:
… sensitive to the demands of member states and realistic about the role the United Nations can play.
On 11 November 1996, a statement was made to the Third Committee of the United Nations general Assembly. An extract of the statement concerning indigenous peoples’ representation on international bodies in extracted below:
The Australian Government will continue to support its indigenous peoples in achieving appropriate recognition in international forums. Australia has supported adoption by the General Assembly within the Decade, of a Declaration on the Rights of Indigenous Peoples. Australia has also supported the ongoing consideration of the proposal for a permanent forum for indigenous peoples in the UN system.
On 2 May 1996, the Minister for Foreign Affairs, Mr Alexander Downer, in an address to the International Institute for Strategic Studies/Strategic and Defence Studies Centre Conference entitled ‘The New Security Agenda in the Asia Pacific Region’ made the following remark concerning the ASEAN Regional Forum:
The ASEAN Regional Forum is, at present, proving to be the most comprehensive framework for regional security dialogue. The Government strongly supports the strengthening of the ARF in practical ways. It assists regional countries get into the habit of dialogue and cooperation on defence and security issues. The ARF helps to builds trust, a sense of shared interests and a sense of shared responsibility, and the Government believes these are essential for shaping the region’s long term security future.
Although the ARF is still in its infancy it is beginning to produce concrete results. The annual ARF meeting is at present primarily a dialogue process in which Foreign Ministers exchange views on strategic and security issues of importance to the region. But consensus is now beginning to develop amongst member-states that the ARF should move to implement a number of agreed cooperative measures so that the body can start making a practical contribution to the region’s peace and stability. …
It is not the Australian Government’s intention that the ARF become a collective defence arrangement such as NATO. Indeed there is little inclination among any of the ARF’s member-states for this to happen. The ARF will, however, be increasingly valuable if it continues to instil greater confidence and transparency in the security thinking of all member-states.
Specifically, the ARF should continue to develop regional dialogue on issues such as defence planning and acquisition, and should take forward the agenda for developing preventive diplomacy in the region. This, in time, may lead to it becoming a body which can negotiate the resolution of disputes through agreed mechanisms.
On 19 September 1996, the Minister for Foreign Affairs, Mr Alexander Downer, presented an address entitled ‘Asia Pacific Practical Cooperation in an Asian Context’ to the International Institute for Strategic Studies, London in which he made the following remarks concerning the ASEAN Regional Forum:
What is happening at the bilateral level is familiar enough in a European context. Where the Asia Pacific becomes unique is in the way in which its regional institutions are developing.
The ASEAN Regional Forum, or ARF, operates in a way which contrasts markedly with the highly structured negotiations and institutions typical of Europe. It is characterised by minimal institutionalisation, consensus decision-making, an evolutionary approach to objectives, frequent consultations at many levels, and the use of non-government discussions (or what is called the second track) to pioneer new subjects.
Nevertheless, the ARF works, and it has agreed to approach security cooperation in three stages: confidence-building, preventive diplomacy and the elaboration of approaches to conflicts.
The first stage of its activities, trust-building or mutual reassurance, is maturing as a useful mechanism for developing a sense of shared strategic interest. It has established a region-wide security dialogue, including sensitive issues like Burma, the Korean Peninsula, the South China Sea and the Comprehensive Test Ban Treaty.
The second stage, preventive diplomacy, is showing promise. At the third ARF in July, for example, the Indonesian Foreign Minister, Ali Alatas, used his good offices as Chairman to convey ARF members’ concerns about the situation in Burma to the Burmese Foreign Minister. I am proud to say that Australia played an instrumental role in this initiative.
Below the Ministerial level, the ARF has a crowded program of inter-sessional meetings, which are now developing practical, cooperative measures.
The first results are annual defence policy statements and the increased publication of defence white papers. They are of variable quality, but are reinforcing transparency and openness in a region where that is not the traditional culture of state policy.
Military exchanges, including staff college training, are increasing and ARF members are beginning to look positively at notification of military exercises and at sending observers to them.
Measures, like defence white papers, that increase transparency will be important in ensuring that increased arms purchases do not lead to arms races. They will help strengthen regional trust so that the increased defence capabilities that come with economic growth are not seen as a evidence of hostile intent. Future of the ARF
Successes with the stages of trust-building and preventive diplomacy may lead in future to an agreed approach to the third stage—perhaps to the resolution of disputes through agreed mechanisms. How and when that could happen is not clear, but I would point out that the ARF has already produced positive results through what is becoming an established pattern of effective diplomacy.
For instance the ARF has contributed to lowered temperatures over South China Sea territorial issues, which have now become a normal matter for discussion. Meanwhile, China and ASEAN claimants have agreed to freeze their activities in the South China Sea and to step up their diplomatic contacts.
In North East Asia, the ARF has been supportive of a more positive climate on the Korean Peninsula. The Four Party Peace Proposal—involving the two Koreas, China and the United States—presently offers the most effective way forward.
The best form of further support the international community can give is to help fund the Korean Energy Development Organization, thereby helping to ensure that North Korea’s nuclear program is used for exclusively peaceful purposes. A substantial, multi-year contribution from the European Union will be very important.
Observers brought up in the tradition of European statecraft sometimes object that the value of the ARF is questionable because it is not able to resolve conflicts and regulate security affairs.
My answer is that the ARF was never conceived as the sole answer to managing security in the Asia Pacific. As with the South China Sea, the ARF is about adding a new regional layer to security relationships that will work together with management at the bilateral level.
It is not the intention of Australia or its ARF partners that the Forum become a collective defence arrangement. It is born out of the idea of defence with others, not defence against others. That idea makes practical sense in a region where the security dilemma is generally less pressing than in recent European history.
As I noted earlier, however, regional changes like increasing defence capabilities will modify that situation. The ARF therefore needs to use the present favourable period to develop regional dialogue further on issues like defence planning and acquisition, and it should take forward the agenda on preventive diplomacy.On 6 December 1996, the Minister for Foreign Affairs, Mr Alexander Downer presented an address entitled ‘Regional Cooperation and Security’ to the Australian College of Defence and Strategic Studies, Canberra in which he made the following remarks concerning the Asean Regional Forum:
At the regional level, Australia strongly supports the Asean Regional Forum (ARF). …
As you know, the ARF is quite unlike European security institutions or Models.
• it is characterised by minimal institutionalisation.
• it functions through consensus decision-making and has an evolutionary approach to achieving objectives.
Importantly, the ARF brings together all the countries which have an impact on or are involved in the security of the Asia Pacific region.
• it helps create a sense of strategic community in the region.
• it is the means by which governments can begin to strengthen confidence in each others’ intentions.
• it helps create the right atmosphere and framework for bilateral linkages to flourish.
The ARF is still in its infancy, but it is starting to get practical results.
The first level of the ARF’s activities—confidence-building – is maturing as a useful mechanism for developing a sense of shared strategic interest.
• region-wide security dialogues on sensitive issues like the future of Burma and the Korean peninsula have now been undertaken.
Below the ministerial level, the ARF has a crowded program of inter-sessional meetings, which are now developing practical cooperative confidence-building measures.
• the first results are annual defence policy statements and the increased publication of defence white papers. These are of variable quality, but are reinforcing transparency in a region where that has not been traditional in state policy. They are important because of the increase in regional defence expenditures.
Military exchanges, including staff college training such as the one you are participating in, are on the increase.
• exchanges on confidence-building measures already involve military officers.
• ARF members are beginning to look positively at notification of military exercises and at sending observers to the exercises.
Preventive diplomacy—the second stage of ARF’s activities—is also showing good potential.
• at the third ARF meeting in July, for example, the Indonesian Foreign Minister, Ali Alatas, used his good offices as chairman to convey ARF members’ concerns about the situation in Burma to the Burmese Foreign Minister. …
Success with the ARF’s confidence-building and preventive diplomacy stages may lead in future to a third stage—the resolution of disputes through agreed mechanisms.
• how and when that could happen is not yet clear. …
Observers brought up with the tradition of European statecraft sometimes question the value of the ARF because it is not able at this stage to resolve conflicts between members and regulate security affairs.
• my answer is that the ARF was never conceived as the sole means of managing security in the Asia pacific.
• as seen in the case of the South China Sea, the ARF adds a new regional layer to security relationships that helps the management of issues at the bilateral level.
The ARF is a unique body. It is developing in its own way and its own time. It was never intended to become a collective defence arrangement. It was born out of the idea of defence with others, not against others.
• the ARF needs to use the present favourable period to develop dialogue further on issues such as defence planning and acquisition.
• it should also take forward the agenda on preventive diplomacy.
One important issue that remains to be explored is the further development of regional exchanges between defence authorities.
• we are already seeing active participation by defence officials in ARF inter-sessional meetings, a process that could build towards meetings of more senior defence planners and defence chiefs.
• it makes sense to look forward to an inclusive meeting of regional defence ministers at some stage in the future.
On 28 November 1996, the Minister for Resources and Energy, Senator Warwick Parer, issued a news release concerning the Indian Ocean Tuna Commission. Extracts of the release follow:
Australia has joined the Indian Ocean Tuna Commission (IOTC) …
It will now be represented at next month’s inaugural meeting of the IOTC, alongside a large number of Indian Ocean fishing countries expected to include India, Japan, Sri Lanka and the United Kingdom.
The IOTC is a multilateral organisation established under the United Nations Convention on the Law of the Sea. The role of the Commission is to promote cooperation between its member states on the management of the region’s tuna and billfish fisheries.
We are already managing southern bluefin tuna through the Commission for the Conservation of Southern Bluefin Tuna. The IOTC is obliged to cooperate with the SBT Commission, however, it is not impossible that it will seek to have a role in managing the fishery.
Senator Parer said Australia will be urging the Commission to adopt sound, scientifically based approaches to establishing the catch levels for the fishery resources in the Indian Ocean.
“We will also be urging the members of the Commission to adopt sound environmental practices, such as measures to reduce the level of bycatch of albatross and other seabirds,” he said
“Longline fishing is the greatest threat to albatross. Our work in the IOTC will complement our proposal to list eleven albatross species under the Bonn Convention, and the work that we are putting in on developing a threat abatement plan.”
On 2 May 1996, the Minister for Industrial Relations, Mr Peter Reith, in response to a question without notice from Mr Mark Vaile provided the House of representatives with the following information concerning whether Australia would maintain its membership of the ILO (House of Representatives, Debates, 2 May 1996, p 277):
…The government will, of course, retain its membership of the ILO. Australia has been a member of the ILO for many years. We have played a constructive role in the past; we will play a constructive role in the future. But I must say, against that background, the government is grappling with a significant problem in respect of the budget…
In the Department of Industrial Relations, in respect of Australia’s membership of the ILO, a number of changes can be made that will effect reasonable savings.
For example, we are going to withdraw the special labour adviser…
…Finally … [i]n redrafting these provisions, we will of course abide by international standards, and so we should. But we are not going to be treaty driven, as the previous government was. In our view Australian laws ought to be drafted in Australia for Australian conditions, and not be essentially drafted in Geneva. So we will play a constructive role in the ILO, but we are going to fix Australia’s problems here at home and not on some trip to Geneva.
On 1 May 1996, the Minister for the Environment, Senator Robert Hill, made the following comments in the course of the second reading speech to the Senate for the Hazardous Waste (Regulation of Exports and Imports) Amendment Bill (Senate, Debates, 1 May 1996, p 161):
The purpose of this bill is to amend the Hazardous Waste (Regulation of Exports and Imports) Act 1989 to ensure that Australia can discharge its obligations under international instruments relating to the control of transboundary movements of hazardous waste. …
The principal act was passed at the time that the Basel Convention was negotiated. At that time the major concern regarding trade in hazardous waste related to hazardous waste sent to another country for what is termed final disposal, that is for incineration, landfilling or the like. As a result, the principal act defines waste as material which has been rejected as worthless or otherwise falls within the ordinary definition of waste. As such it generally does not cover material sent for recovery. In the years since the convention was negotiated the emphasis in international debate has shifted to its coverage of materials which are traded for recovery operations; that is, for reclamation of metals or recovery of other useful materials. …
The Basel Convention is the primary international instrument under which trade in hazardous waste is controlled. It is the set of rules for this trade on which Australia and the many other countries which are parties to the convention have agreed. As virtually all of Australia’s trading partners are either parties to the convention or parties to similar sets of rules established by the OECD, it is in Australia’s trade interests, as well as within our international obligations, to abide by these rules. The interpretation of the convention as expressed in the principal act and with the amendments now put forward is in line with the views of other parties to the convention. In the absence of these amendments, Australia will continue to be out of step with other Parties in its capacity to give domestic effect to the convention.
In accordance with the primary intention of the bill, the object of the act is to be amended to make it clear that one of its major aims is to give domestic effect to the Basel Convention and other international instruments relating to trade in hazardous wastes. …
The Minister will have the power to issue Evidentiary Certificates which will be prima facie evidence that a given material is or is not a hazardous waste; and by compiling a list of materials for which Evidentiary Certificates have been issued, the Minister will be able to provide greater certainty to those subject to regulation on what materials will be controlled and what will not. This means for example, that it will be possible to issue an Evidentiary Certificate stating that a material such as clean ferrous scrap is not a hazardous waste subject to the act and can be traded without any controls. At the same time, flexibility will be retained to respond to incremental progress in international discussions on what materials should and should not be controlled. As an example, recent international discussions suggest that the existence of internationally recognised product specifications will be influential in deciding what are and are not hazardous wastes. The Evidentiary Certificates will not be conclusive, but will be prima facie evidence; and the definitions in the act would remain as the final means of determining the definitional question. In practice, however, the advice of the Technical Group will provide the government with the capability of issuing clear guidance on definitional issues, and should satisfy the needs of those who are subject to regulation for a clear understanding of their obligations under the act. …
Another key concept in the convention now adopted into the act is the definition of “environmentally sound management”. The convention requires not only that an exporting country obtain prior consent from the country of import before allowing the transboundary movement to proceed, but also that the country of export require that the waste to be shipped is managed in an environmentally sound way in the country of import. The concept of environmentally sound management of hazardous waste is defined in the convention as “taking all practicable steps” to ensure that the hazardous waste is managed to protect human health and the environment. The Technical Group will advise the Minister to assist in determination of what constitutes environmentally sound management and whether particular facilities or processes meet the definition. For that reason, it will include people with expertise in scientific and technical, social and economic, environmental and public health fields. …
Under the convention the general rule is that Parties must not trade in hazardous waste with non-Parties. An exception to this is provided for in Article 11, whereby Parties may enter into agreements or arrangements either with other Parties or with non-Parties. These agreements or arrangements can set out controls which are different from those prescribed by the convention itself, provided those controls do not reduce the level of environment protection intended by the convention. The main such agreement to which Australia is a party is the OECD Decision on Transboundary Movement of Hazardous Waste Destined for Recovery Operations (the OECD Decision), which regulates transboundary movement of hazardous wastes among OECD countries.
The bill provides explicitly for regulations giving effect to such agreements and arrangements, and for those regulations to give domestic effect to rules different from those in the convention. The materials covered by the agreements or arrangements may also differ to some extent from those covered by the convention. Thus the OECD Decision covers some wastes which are not hazardous wastes under the convention and trade in these must comply with the controls set out by the Decision; conversely, the Decision classifies some materials as non-hazardous waste (the OECD Green List) and these materials may be traded without a permit provided countries outside the OECD are not involved. The provisions are general and can be applied to any further Article 11 agreements or arrangements which Australia enters into. …
The act also addresses a number of aspects of the convention which were not picked up in the original drafting process. One of the most important of these is the issue of transit permits, that is for Australian consent (or its denial) to the transiting of waste from another country on its way to a third country for disposal. …
In the course of the consultations, an issue which has stimulated more discussion than any other is the prospect of bans of transboundary movement of hazardous wastes from developed to developing countries. This issue has been the subject of a decision at the Second Meeting of the Conference of Parties to the Basel Convention in March 1994 (Decision II/12) and an amendment decision at the Third Conference of Parties to the convention in September 1995 (Decision III/1). This latter decision, known as the Ban Amendment, implements an immediate ban on the export of hazardous waste for final disposal from countries listed in Annex VII of the convention (parties and other states which are members of the OECD and the EC, and Liechtenstein) to non-Annex VII countries; and phases out by the end of 1997 and bans from that date the export of hazardous waste for recovery operations from Annex VII countries to non-Annex VII countries. In it Explanation of Vote at that meeting, Australia said that “…it is essential Parties have a common understanding of what is prohibited”, and indicated that it would “only consider ratifying the [ban] amendment when the work on hazardous characteristics is completed to (Australia’s) satisfaction”. (The work referred to is being carried out by the Basel Convention’s Technical Working Group, and is aimed at clarifying the wastes covered by the convention.)
It is important to note that the bill does not implement the Ban Amendment. This government is yet to consider its position on ratification of the amendment, and before any decision is made on ratification, the government’s new process for treaty-making must be observed.
On 18 November 1996, the Minister for the Environment, Senator Robert Hill, in the Senate, answered a question on notice from Senator Dee Margetts. Text of the question and answer follow (Senate, Debates, 18 November 1996, p 5584):
Senator Margetts—(1) In view of the serious threat which the global trade in toxic wastes poses to people and the environment, has the Government signed and ratified (a) the 1989 Basel Convention; and (b) the 1995 amendment which bans all toxic waste exports from the Organisation for Economic Co-operation and Development (OECD) to non-OECD countries; if not, when does the Government intend to do so.
2) What steps are being taken or planned to ensure that the 1995 amendment to the Basel Convention, which bans all toxic waste exports from OECD to non-OECD countries, is fully enforced in this country.
3) Will the Government assure that it will strongly resist the attempts by some governments and corporations to redefine hazardous wastes listed under the Basel Convention or to remove from the list any wastes banned for export from OECD to non-OECD countries.
Senator Hill—The answer to the honourable senator’s question is as follows:
1) (a) Australia ratified the Basel Convention for the Control of Transboundary Movements of Hazardous Wastes and their Disposal, which aims to minimise and control transboundary movements of hazardous wastes, on 5 February 1992.
(b) The amendment referred to was adopted by consensus in September 1995 with the support of the then Government. In the Australian explanation of vote following the amendment, it was made clear that Australia would not consider ratifying the ban amendment until the current work on the definition of hazardous wastes was completed to our satisfaction. The amendment can only be sensibly implemented when its scope is clearly defined.
2) Australia will decide whether to ratify the ban amendment through the newly-established treaty-making process, which includes preparation of a National Interest Analysis. The Government will ensure that there is full and effective consultation on this through the Hazardous Waste Act Policy Reference Group. As indicated above, Australia will only consider ratifying the ban amendment when there has been clarification as to what definitions of hazardous waste are covered by the Convention and the ban amendment.
3) The Government is committed to full implementation of the Basel Convention as it has been ratified by Australia, and is consulting widely on the correct definition of what is and is not regulated as hazardous waste. An Australian Technical Group has been established to provide technical advice on this issue. Australia is an active participant in the international process of drawing up lists of hazardous wastes under the Basel Convention, and will be guided domestically by the results of that process.
On 22 May 1996, Senator Warwick Parer, in response to a question without notice from Senator Ronald Boswell, provided the following information to the Senate concerning the decisions taken at the diplomatic conference concerning the International Marine Organisation’s liability and compensation convention (Senate, Debates, 22 May 1996, p 907):
… The recently finalised convention on liability and compensation for damage in connection with the carriage of hazardous and noxious substances by sea will cover damages arising to people and the environment from spillage of cargoes. It is an add-on to the coverage provided by normal ship operator insurance. When discussions on implementing the new convention began, quite a number of countries wanted coal treated as being environmentally damaging and, in the event of accident at sea, as oil and chemicals. This would have meant that the Australian coal companies or their customers would have had to pay significant extra premiums to insure their cargoes.
The government strongly believes that such an impost would have been unfair as coal, as I mentioned earlier, Australia’s biggest export earning commodity, simply does not present the same risk to the environment as many other seaborne cargoes. The government strongly supports the convention covering damage that might arise from the carriage of truly high risk cargoes but objects to the costs being imposed on safe cargoes such as coal.
The government was intent on avoiding a cross-subsidy situation to genuinely hazardous materials which would have harmed the competitiveness of an industry which earns this country around $8 billion a year. The Australian case at the conference was put by government officials with the support of, and in conjunction with, industry.
… They were able to convince an overwhelming majority of countries at the conference of the sense of Australia’s position. …
On 30 May 1996, the Minister for Trade, Mr Tim Fischer, made a speech entitled ‘International Trade and the Environment’ to the Minerals Council of Australia’s International Council on Metal and the Environment. The following is an extract of the speech concerning various treaties on environmental issues:
International negotiations for chemicals management treaties have reached a stage where governments are being asked to consider options which have the potential to seriously impact on national economies and their industries’ access to chemicals.
Australia recognises the environmental and economic benefits which may be gained from the sound management of chemicals. But the Australian Government is against attempts by northern hemisphere countries—particularly the European Union—to ratchet up environmental standards in ways that suit their interests, without regard for regional and national differences and priorities.
One example that most of you will be familiar with is lead. Australia was at the centre of efforts to oppose the creation of a treaty which would have enshrined an impractical approach to the industrial use of lead. The treaty would have benefited the economic, environmental and trade interests of only a minority of OECD members, rather than the world community as a whole and Australia in particular.
As a result of active negotiation, OECD countries finally agreed to a Ministerial Declaration on Lead rather than a legally-binding Council Act.
The Declaration recognises that each country has a different set of environmental and other conditions with which to deal. It therefore acknowledged that national approaches to risk reduction are likely to be more effective than the binding commitments on lead use reduction which were envisaged in the proposed Act. Basel Convention
The Basel Convention negotiations are another area where Australia has been particularly active. The Basel Convention regulates the movement of hazardous wastes and their disposal.
The development of this treaty and the issue of the transboundary movements of chemical wastes was influenced mainly by the perspectives and industrial processes of developed northern hemisphere countries.
These countries assumed that all hazardous wastes were produced by developed countries and dumped in developing countries. And what substances were to be deemed ‘hazardous’ remained undefined.
As a consequence, in its current format, the Basel Convention does not account for properly managed trade in waste materials between developing countries. Nor does it recognise the possibility that one economy’s waste may be another economy’s commodity.
Usually we call this “recycling” and applaud efforts to do more of it!
The approach adopted by the Basel Convention works on the assumption that developing countries are a fixed and uniform grouping or category. And, of course, such an artificial and rigid categorisation flies in the face of the variation, dynamism and rapid growth of developing countries in our own region. Climate Change
The Climate Change Convention is an area where Australia’s interests are especially distinct.
While Australia supports the need for effective global action on climate change, the potential outcome of the ongoing treaty negotiations has significant trade and economic implications for Australia.
The potential treaty obligations of a strengthened Climate Change Convention would have a very clear negative impact on many of Australia’s exports, especially commodities such as coal, alumina and aluminium. They would also have a significant negative impact on Australia’s manufactures trade.
For example, a number of proposals are currently on the table which suggest that all OECD countries should be subject to a uniform target for the reduction of greenhouse gas emissions. Given Australia’s fossil fuel dependence and the composition of our export industries, these would impose higher costs on Australia than on other developed countries.
The implications for Australian trade arising from a strengthened Climate Change Convention are therefore, in short, more significant than for most other countries.
For this reason, Australia has advanced an alternative “equitable burden sharing” approach. This is aimed at assessing national performance against factors such as cost-effectiveness, capacity to pay, population growth and the level of emissions embodied in trade.
We are seeking to have all OECD countries bear similar costs in reducing emissions. And we believe that such an approach is important to ensure the Convention’s long term viability.
This “equity” approach should also provide a basis for developing countries to commit themselves to solutions to global warming—solutions which will take better account of their developmental problems.
This is important because the obligations for taking steps to stabilise global levels of greenhouse gases are presently confined to developed countries and some economies in transition.
Developing countries presently argue that it is unfair they be asked to pay for a problem which has been caused largely as a side product of northern hemisphere industrialisation. They also point out that action by them to stabilise their emissions would be likely to have a far more drastic effect on the welfare of their populations given the poverty that already exists.
It would be unrealistic, however, to ignore the rapid change underway in the pattern of world production and greenhouse emissions.
With respect to climate change for example, evidence indicates that at present the OECD countries contribute just less than half of global CO2 emissions. By about 2020, however, this fraction will have fallen to about 30 per cent.
India and China, on the other hand, are likely to account for a larger amount of the increase in emissions over the next 15 years than will all OECD countries combined.
In the longer term, developing countries will inevitably need to find ways to contribute to reducing greenhouse gas emissions. The Berlin Mandate negotiations should keep the door open for this.
The Australian Government will insist that Australia’s economic and trade interests are safeguarded and its specific national circumstances are taken into account in implementing the Convention.
On 20 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer answered a question on notice from Mr Laurence Brereton. The text of the question and answer follow (House of Representatives, Debates, 20 August 1996, p 3298):
1) Did Australia on 8 May 1974 become the first state to ratify the Convention on Wetlands of International Importance especially as Waterfowl Habitat, done at Ramsar on 2 February 1971.
2) Did Australia on 12 August 1983 become the sixth state to become a party to the convention as amended by the protocol done at Paris on 3 December 1982.
3) Did Australia on 25 July 1990 become the eleventh state to accept the amendments to the convention adopted by the Extraordinary Conference of the Contracting Parties at Regina on 3 June 1987.
4) Which states have (a) become parties to the Ramsar Convention, (b) become parties to the Paris Protocol and (c) accepted the Regina amendments since the answer to question No. 165 (Hansard, 11 October 1990, page 2793), and on what dates.
5) Which wetlands have been designated by Australia to the List of Wetlands of International Importance since the answer to question No. 165, and on what dates.
Mr Downer—The answer to the honourable member’s question is as follows:
1) Yes.
2) Yes.
3) Yes.
4) The states which have (a) become parties to the Ramsar Convention,
(b) become parties to the Paris Protocol or (c) accepted the Regina amendments since 11 October 1990, and the respective dates, are set out in the table below:
Date of deposit of instrument
5) On 22 October 1993 Australia designated the following wetlands in Queensland for the List of Wetlands of International Importance:
Moreton Bay− 27 degrees 20’S 153 degrees 10’E—113,314 hectares
Bowling Green Bay− 19 degrees 27’S 147 degrees 15’E—35,500 hectares.
In addition, Australia designated the following wetlands on the Australian territory of Christmas Island on 16 December 1990:
Hosnie’s Spring− 10 28’S 104 41E—1 hectare.
On 12 September 1996, Mr Warick Smith, the Minister representing the Minister for the Environment answered a question on notice from Dr Carmen Lawrence in the Senate. The text of the question and answer follow (House of Representatives, Debates, 12 September 1996, p 4266):
Dr Laurence—
1) Will the Minister provide a list of the international conventions and memoranda of understanding arrangements between Australia and other countries in which Australia has made environmental commitments.
2) For each instrument referred to in part (1), which section of the Minister’s Department is responsible for ensuring that Australia meets its international environmental obligations.
Mr Warwick Smith—The Minister for the Environment has provided the following answer to the honourable member’s question:
1) I have provided, in the table below, the list of international conventions and memoranda of understanding arrangements between Australia and other countries. I have limited my answer to those conventions and memoranda of understanding for which my portfolio has carriage. The memoranda of understanding listed are those agreed between the Government of Australia and the governments of other countries.
2) The list includes the areas of my Department which have the major carriage for each of the instruments.
On 4 November 1996, Mr Warren Truss on behalf of the Parliamentary Standing Committee on the Environment, Recreation and the Arts, presented the Committee’s report entitled 'Managing Australia’s World Heritage' to the House of Representatives. He provided the following information to the House (House of Representatives, Debates, 4 November 1996, p 6363):
… The committee considered that it is the Commonwealth’s prime responsibility to ensure that high standards of management are established and maintained in all world heritage areas. The committee identified a number of ways in which the Commonwealth should meet these responsibilities:
• it should ensure that all world heritage areas have management plans which are based on the areas’ world heritage values;
• it should ensure that, where appropriate, world heritage values are respected in regional and strategic plans;
• it should ensure that the values of world heritage areas are redefined as new knowledge about the areas accumulates and the concept of world heritage evolves, and that these values are incorporated into any updates of management plans;
• it should ensure that consultative bodies are established for each world heritage area;
• it should sponsor research into world heritage management, and collect and disseminate information about best practice, for example, in relation to consultation, monitoring, managing the impact of visitors, and the use of user charges to recover some part of the cost of managing world heritage;
• it should assist with educating the public and displaying world heritage;
• it should provide funding for world heritage areas on the basis of financial agreements with the states for all state managed world heritage areas to provide long-term certainty to world heritage managers; and
• it should retain legislation that can be used to protect world heritage if other measures fail. …
The committee has also recommended that, in the future, issues such as the development of management plans and funding arrangements be determined before an area is nominated for the World Heritage List…
It is obviously preferable that the Commonwealth and state governments cooperate in protecting, conserving and presenting world heritage areas to the public, as the world heritage convention requires. However, if world heritage values are threatened and state governments fail to act to protect these values, the World Heritage Properties Conservation Act empowers the Commonwealth to intervene. While the use of this legislation has proved contentious, the committee considers that its retention is essential for the protection of world heritage values. The committee recommended that the legislation be strengthened, but did not agree with the suggestion that additional legislation should establish a general framework for world heritage management by the Commonwealth…
On 19 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer, issued a news release concerning unrest in Cyprus. Extracts of the release follow:
The Government calls on community leaders in Cyprus to do everything they can to encourage restraint. The Government urges all parties to refrain from provocative statements and to build a climate of goodwill and mutual trust which will make it possible to negotiate a peaceful settlement.
Australia supports the sovereignty and territorial integrity of the Republic of Cyprus and has been a consistent supporter of UN efforts to promote a solution of the Cyprus problem.
On 5 July 1996 the Department of Foreign Affairs and Trade issued a news release concerning the ratification by the Indonesian Government of the Agreement for Maintaining Security. In part it noted:
The Australian Government welcomes the news that the Indonesian Government has ratified the Agreement for Maintaining Security, which was signed in Jakarta on 18 December last year. This action parallels the ratification process already undertaken by the Australian Government. The Agreement will enter into force once formal advice of Indonesia’s ratification is received and it will be effective from the date of signature.
…The Agreement [will] be ratified by Presidential decree. This is one of the two options available in Indonesian procedure and was the path chosen by the Indonesians on this occasion.
On 20 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer answered a question on notice from Mr Barry Jones in the House of Representatives. Text of the question and answer follow (House of Representatives, Debates, 20 August 1996, p 3286):
Mr Jones—
1) Did Australia on 19 September 1984 become the 70th party to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954).
2) Did Australia on 13 November 1995 attend the second meeting of the High Contracting Parties to the Convention.
3) Did the meeting invite all the parties to the convention to submit written proposals for the improvement of the convention by 1 September 1996; if so, (a) which Commonwealth and State departments are preparing written proposals and (b) will he present the proposals to Parliament.
4) Which parties to the 1954 Convention are not parties to the Protocol for the Protection of Cultural Property in the Event of Armed Conflict (The Hague, 1954).
5) Did Australia in July 1994 assure the USA that it was still considering whether to become a party to the protocol and that the matter was being reviewed by relevant Commonwealth and State departments.
6) Which Commonwealth and State departments have been reviewing the matter and with what outcome?
Mr Downer—The answer to the honourable member’s question is as follows:
1) Yes.
2) Yes.
3) Yes.
(a) Relevant government agencies are giving consideration to this request.
(b) The normal considerations of the treaty-making process would apply to any formal proposals for the amendment of the Convention, including in relation to parliamentary involvement and consultation of stakeholders.
4) The following parties to the 1954 Convention are not parties to the Protocol: Argentina, Australia, Cote d’Ivoire, Croatia, Dominican Republic, Estonia, Kyrgyzstan, Mongolia, Oman, Qatar, Saudi Arabia, Sudan and Tanzania.
5) Yes.
6) The Commonwealth Departments of Communications and the Arts, Defence and Foreign Affairs and Trade and the Attorney-General’s Department are continuing to keep the issue of whether Australia should become a party under review, within the constraints of available resources and other priorities.
On 20 August 1996, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice concerning the Chemical Weapons Convention from Mr Laurence Brereton in the House of Representatives. Text of the question and answer follow (House of Representatives, Debates, 20 August 1996, p 3297):
Mr Brereton—Which countries have become parties to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Paris, 13 June 1993), and on what dates.
Mr Downer—The answer to the honourable member’s question is as follows:
The following table sets out the countries which are signatories or parties to this Convention, together with the respective dates for each country:
CONVENTION ON THE PROHIBITION OF THE DEVELOPMENT, PRODUCTION, STOCKPILING AND USE OF CHEMICAL WEAPONS AND ON THEIR DESTRUCTION
(Paris, 13 January 1993)
Entry into force: 180 days after 65th ratification, accession, etc.
Text: Select Documents on International Affairs No. 41 p. 23; Australian Act of Parliament 1994 No. 26.
On 31 October 1996, the conditions required for triggering entry into force of the Chemical Weapons Convention (CWC) were achieved. In recognition of this, the Minister for Foreign Affairs, Mr Alexander Downer, issued a news release on 1 November 1996 containing the following:
The achievement of a total ban on chemical weapons has been along-standing objective of Australia’s foreign and security policy, and a central pillar of our global and regional disarmament and non-proliferation efforts. The CWC is the first comprehensively verifiable multilateral treaty which outlaws an entire class of weapon of mass destruction. It promises the abolition for all time of a weapon which has killed tens of thousands of people this century, and caused long-term harm to the health of countless more, including many Australians who were the victim of such weapons in World War I.
Australia ratified the Convention in May 1994 and was the sixth country to do so.
I would continue to urge all countries which have not yet done so to ratify the CWC quickly to ensure the Convention has the widest possible membership when it enters into force. It is particularly important that the United States and Russia—the two declared possessors of chemical weapons—ratify. I regret that the US Senate recently deferred consideration of the question of US ratification of the CWC, and hope that it will authorise this step as soon as possible to maintain US support for the process. In Russia, the Convention is yet to be submitted for consideration by the Russian Parliament. I urge both Washington and Moscow to work to ensure early action to ratify.
The CWC was opened for signature in January 1993, following 20 years of negotiation. The Convention stipulates that it will come into effect 180 days after the so-called “trigger point” of 65 ratifications is reached. Hungary was the 65th country to ratify, on 31 October 1996 in New York. The Convention will therefore enter into force on 29 April 1997.
On 26 November 1996, Australia made a statement to the Fourth Review Conference of the Biological and Toxin Weapons Convention (BWC). The following is an edited version of the statement:
Australia attaches great value to the biological weapons convention. We regard it as one of the key international agreements which underpin global security. The BWC stands alongside the nuclear non-proliferation treaty and the chemical weapons convention in providing the basis for the global legal and political norm against the spread of weapons of mass destruction. The highly destabilising potential of these inhumane weapons is universally recognised. … The need for verification
Australia’s believes strongly that in responding to the continued challenges to the health of the BWC the most important need is the development of effective and efficient verification arrangements. We identified the development of verification machinery as a key objective for advancing the BWC in our contribution to the third review conference. Subsequent developments as just noted have only reinforced our belief that such arrangements are essential. Our faith in the continued value of the Biological Weapons Convention, is linked closely to our view that effective arrangements to strengthen the BWC—especially in the verification area—can be developed.
We were accordingly encouraged by the decision of the Third Review Conference to initiate a process which would enable states parties to work towards this objective. The sequence of the successful outcome from the verex process establishing the technical feasibility of verification, the subsequent 1994 special conference and the initiation last year of the ad hoc group negotiations are familiar to all, and do not need describing in further detail, but their importance cannot be discounted. They were major steps towards the verification protocol which we are confident will result from the ad hoc group’s efforts in—we hope—the near future. We are heartened by the active participation in the negotiations on the planned protocol of a large number of states parties. We are encouraged by the significant and valuable contributions made to the process by many individual delegations from all regional groups.
We believe that to be effective a verification regime must include provision for:• Mandatory declaration of relevant facilities and activities,
• On-site activities to reinforce the declarations regime, including routine inspections,
• Rapid and effective investigation of a compliance concern both at specific facilities and across a larger geographic area, such as would be needed to investigate an allegation of use of biological weapons.
Clearly, verification machinery of this type will require organisational support. However, we are confident that an efficient, appropriately sized structure would adequately support the sort of verification machinery being proposed.
The dual-use nature of biological research means that measures demonstrating openness and transparency in relation to biological research in both military and civilian installations must be the basis for a verification regime. And while Australia, in common with other parties, is concerned not to hamper legitimate biological research, industrial production and trade, we accept a degree of intrusion as one of the necessary costs of security.
Promoting universality
Australia also recognises the need for the membership of the BWC regime to expand to encompass all members of the international community. It is a matter of particular concern that in regions of tension, like the Middle East, participation in the BWC regime is not universal.
We accordingly urge all countries which have not yet done so to join the BWC as soon as possible. We believe the addition of verification machinery can only enhance confidence in the BWC, encouraging those countries which have so far held back to accede or ratify the convention. CBMS
At the last review conference Australia strongly supported the development of strengthened confidence building measures. Since that time these measures have proven a useful interim tool to increase transparency and build confidence in the regime. However, as we are all aware, participation in the confidence building measures has been far from universal, and the information provided has not, in all cases, delivered the hoped for transparency. The various measures being considered under the compliance measures aspect of the ad hoc group work overlap with the existing confidence building measures. For this reason we believe it would be a mistake to consider any amendment to the existing confidence building measures at this stage, before the conclusion of the ad hoc group considerations. Article X
An issue of clear relevance to the work of this conference, and also to the ad hoc group, is the implementation of Article X of the BWC. Australia believes this article of the BWC to be a key element of the treaty and is strongly committed to the principles set out therein. The promotion of economic and social development, and the scientific and technological progress, of all countries without discrimination in the field of biotechnology are matters of vital importance affecting all states parties. It is a key strand of consideration in the ad hoc group.
Australia welcomes the cooperative approach being taken by states parties, and the increasing recognition of the wide range of activity in the area of biotechnology exchange and assistance relevant to the implementation of Article X. …
On 23 January 1996 the Minister for Foreign Affairs, Senator Gareth Evans, made an address to the Opening Session of the Canberra Commission on the Elimination of Nuclear Weapons. Extracts of the address follow:
The task confronting this Commission is as ambitious and important as any task could possibly be. It is to make the case, if it can be made, as to why the world should now strive for the absolute elimination of nuclear weapons; it is to make the case, if it can be made, as to how such elimination might be achieved in practice; and it is to articulate these cases, assuming they can be made, in such clear and compelling terms that governments around the world will be persuaded to make the necessary commitment and take the necessary action.
It is not for the Australian Government to tell you how to do your job, and I certainly don’t propose now to do that. We have seen our role in all of this as facilitative, not prescriptive. But it may nonetheless be helpful, as an initial stimulant for your discussions, to spell out the key issues as we see them. If we have it wrong, I have no doubt that you will be the first to tell us.
The first big issue that has to be tackled is obviously the question of ”why”;. Why, given the global peace we have enjoyed since the nuclear age began, does it make sense now to seek the elimination of nuclear weapons? Why should the present nuclear weapons states give up their deterrent nuclear capability? And why should the present nuclear have-nots renounce their right to acquire it?
The short answers, in Australia’s view, are these. No-one’s security will be helped by the continued existence of nuclear weapons. And everyone’s security will be enhanced by their destruction.
As to nuclear weapons not helping security, these points can be made:
• In the post-Cold War world, and in a globe where the forces of economics and technology are working more and more to unite states in common, cooperative strategies rather than to divide them, the prospect of any of the present nuclear weapons powers launching a nuclear attack on any other is presently negligible, and will remain so. One would not expect any of the nuclear powers to move to disarmament unilaterally, or other than on a step-by-step basis maintaining stable deterrence on the way down—but there is no reason why the threat of nuclear aggression from other nuclear powers should stop any of them from making the commitment to zero.
• No credible case can be made for any state maintaining a nuclear deterrent against the possibility of non-nuclear aggression from another country. One of the most difficult issues for the Commission to tackle will undoubtedly be the stated strategic concerns of countries like France—invaded twice this century—and Israel, vastly outnumbered by its Arab neighbours. But the truth of the matter is that internal and external political constraints have made in the past, and will make in the future, nuclear weapons effectively unusable in any contingency short of a response to direct attack with nuclear weapons against one’s own territory or armed forces.
• Nuclear weapons are useless in dealing with the kind of ethno-nationalist conflicts, humanitarian disasters and economic crises that have become the most common security challenges in the post-Cold War world.
• So long as anyone retains nuclear weapons there is always a risk, however small, of their accidental or inadvertent use. An even more important set of “why”; arguments, however, is that a genuine commitment to elimination is crucial to stop nuclear weapons proliferation—not only to the threshold and undeclared states, but to many other countries as well with the technological and economic capacity to acquire them. Non-proliferation enhances security simply because with proliferation, nuclear risks are dramatically multiplied—ie the risk of accident or inadvertent misuse by anyone, and the risk of deliberate use by regimes less inhibited than those who have so far governed the present nuclear weapon states.
• Without concrete moves towards the destruction of existing weapons by the declared nuclear powers, it will simply not be possible to embrace the threshold and undeclared states, or anyone else, in the bargain: no-one is going to play until they see the field as level, or at least becoming so.
• Without a serious commitment to elimination by the present nuclear haves, it is not going to be possible to put in place the kind of highly intrusive verification measures that will inhibit potential rogue states and sub-state groups from acquiring nuclear capability.
It is crucial to appreciate in all of this that while achieving elimination is, even on the most optimistic assumptions, necessarily going to take quite some years, stopping proliferation is a here and now 1990s issue. This Commission’s mandate is not to draw a blueprint for Utopia—it is to address what is unquestionably a clear and present danger.
And in addressing that danger it is impossible to understate the burden of responsibility that lies upon the shoulders of the present nuclear haves—the declared nuclear weapon states. Resistance is growing, accelerated by reaction to the French and Chinese tests, to what are perceived, for better or worse, as hypocritical double standards by the nuclear weapons states. If a nuclear deterrent capability is necessary for France and Britain, why shouldn’t it be necessary for Germany and Japan, or India or Israel or Indonesia, or for that matter Australia? If the distinguishing characteristic of permanent Security Council status has been nuclear weapons possession, why should other states aspiring to that status forego their acquisition? These are the questions to which policy makers in many countries are increasingly going to have to have answers. And it is crucial that this Commission clearly articulate the answers : that nuclear weapons are not a security solution for anyone, but a problem for everyone.
If we can satisfy ourselves and others, as I hope we can, that the reasons why we should strive for elimination are compelling, it remains to persuade ourselves and the world how this might be possible.
Four general points about this can be made with reasonable certainty at the outset. First, we are not going to get to zero, over any time frame, unless both nuclear haves and nuclear have-nots genuinely believe that their security interests will not be threatened by the achievement of that goal.
Secondly, the international community will need to be satisfied that the process of elimination will not make anyone’s security more vulnerable along the way.
Thirdly, the international community will need to be satisfied that there are adequate safeguards against nuclear breakout and related threats once elimination is achieved, or is in real prospect.
Fourthly, if real progress is to be made, it will have to be in the context of a new kind of negotiating environment—one in which every category of participant feels like a stakeholder in the outcome, and does not simply play out the familiar role of either demandeur or demandee. How does all this translate into policy prescription? There is a mass of material already in circulation upon which the Commission can draw, and it is difficult to keep a sense of the shape of the forest while closely examining all the individual trees. It seems to me, however, that there are four broad agendas, involving differing but overlapping groups of players, that need to be identified and pursued more or less simultaneously—involving respectively the whole international community, regional groupings, the nuclear weapons states, and the threshold and undeclared states. The process as I envisage it is very much interactive: developments in all these agenda-streams will be necessary, and developments in each one of them will reinforce and help forward movement in each of the others.
The Whole International Community. In the global multilateral arena, the next agreement we need will clearly be the Comprehensive Test Ban Treaty, which we hope and expect will be concluded this year.
Without nuclear testing, the nuclear weapon states’ ability to modernise their arsenals—by developing new weapons designs, and modifying existing designs—will be seriously constrained.
A CTBT will thus break the spiral of qualitative competition between the nuclear weapons states and open the way for further nuclear weapons reductions. Cessation of nuclear testing will furthermore mean that the nuclear weapon states will find it difficult to maintain the expertise and facilities to develop more sophisticated nuclear warheads.
While it is true that a crude nuclear weapon can be developed without testing, a CTBT will also help restrict horizontal proliferation by removing the testing option for a potential proliferator.
The next global multilateral step after a CTBT will be persuading those countries which have produced fissile material for weapons to cease doing so permanently and accept international supervision of their sensitive nuclear material production facilities so that there is no future increase in the supply of such material for use in nuclear arsenals.
This will be achieved by the negotiation of a “Cut-Off” Convention banning the production of fissile material for weapons. The enrichment and reprocessing facilities in nuclear weapon and nuclear threshold and undeclared states would be either placed under international inspection or dismantled. This would be a major step forward towards the application of international safeguards to all nuclear activities in these states.
Added transparency would also come from the development of a regime requiring all states to declare and account for their present stocks of fissile material.
Additional global multilateral steps designed to boost the goal of a nuclear weapon free world include:
• The further strengthening of IAEA safeguards, in particular by building up the International Atomic Energy Agency’s ability to detect illegal undeclared nuclear facilities.
• The further development of assurances from the nuclear weapon states against the use and threat of use of nuclear weapons, preferably through an internationally legally binding instrument.
• The entry into force of the Chemical Weapons Convention, the strengthening of the Biological Weapons Convention and wide international application of export controls to materials and technology for weapons of mass destruction and their delivery systems.
The more general point that needs to be made here is that nuclear weapons were not created or used in a political, strategic or economic vacuum. Their eventual abolition will therefore not be achieved in isolation from the wider global and regional political, strategic and economic context. On the contrary, the total elimination of nuclear weapons is only conceivable, and practical, in the context of a newly enhanced global and regional security environment—one in which the concept of “cooperative security”; has real resonance.
At the global level, this will mean, among other things:
• continued attention to reforming and revitalising the United Nations, and in particular revamping the UN Security Council;
• cooperative strategies to develop more effective and reliable verification measures for all categories of weapons of mass destruction;
• cooperative strategies to deal effectively with the challenge of nuclear threat and terrorism involving rogue states, terrorist groups and other extra-systemic acquisitions of nuclear explosive capability; and
• cooperative strategies to address the risk associated with the acquisition of major conventional weapon capability.
Regional Groupings. At the regional level, there is much evidence—not least here in the Asia Pacific of a major rethinking about security going on.
There is a much greater recognition that the appropriate response to new threats to security is a cooperative one: the concept of “cooperative security”; is thus finding more ready acceptance.
More than ever before, regional states are disposed to look ahead and see whether conflict can be prevented or, if this is too late, whether there are mechanisms to reduce it.
More and more regional states recognise that threats to peace and stability derive from an increasingly complex range of sources, and are comfortable extending the concept of security to include non-military threats.
Some specific regional steps that would contribute greatly to the nuclear weapons elimination objective would be:
• The creation of linkages between existing or potential nuclear weapon free zones in the South Pacific, South East Asia, Latin America and Africa which already cover most of the Southern Hemisphere.
• Continued implementation of the framework agreement between the United States and the DPRK, including the successful operation of the Korea Energy Development Organisation.
• New bilateral or regional measures that build confidence and transparency in South Asia.
• Consideration of a Middle East nuclear weapon free zone or a zone free of weapons of mass destruction, in the context of the Middle East peace process.
The Nuclear Weapon States. While the whole global community has a direct and fundamental interest in the elimination of nuclear weapons, and the regime which manages that process and its outcome, the key responsibility—it must be said again—lies with the nuclear weapon states themselves. It must be recognised that the elimination of nuclear weapons will depend on decisions which they alone can make. And it must be accepted as an elemental truth that so long as any state possesses nuclear weapons, in any number, some other states will have a ready made excuse for aspiring to that status themselves.
We should be under no illusions about the size of the task of nuclear disarmament which confronts the international community. More than 40,000 nuclear warheads exist in the world today, with a total destructive power around a million times greater than that of the bomb that flattened Hiroshima.
Under START I, the United States and Russia have agreed to nuclear reductions which are seeing each country dismantle some 2000 warheads annually. Russia’s stockpile is around 25,000 warheads and the United States has about 15,000 warheads. A further 1000 are possessed by the other nuclear weapon states, the United Kingdom, France and China.
When the reductions envisaged under START I are achieved, this will leave in place some 20,000 nuclear warheads.
Under START II, which has yet to be ratified, both parties have agreed to further deep cuts. But even if the dismantlement schedules can be maintained, the five nuclear weapon states by 2003 would still have around 12,000 warheads between them.
The task of these reductions requires, then, a major commitment from the nuclear weapon states. The START agreements undoubtedly represent a major leap forward in reducing the threat of nuclear conflagration. But they clearly do not remove that threat. The world still needs, if we are to achieve the complete elimination of nuclear weapons within a reasonable time-frame, a practical program of nuclear reductions to which all five nuclear weapon states are committed. The nuclear weapon states will need to pursue that program in good faith and with renewed vigour.
Much work remains to be done to identify what that reasonable time-frame would be in practice. Careful, phased reductions will be necessary, with each phase corresponding to a new strategic environment and involving changes in nuclear roles, in the operational status and size of nuclear forces, and in arms control arrangements.
Specifically, we believe that further nuclear arms reductions treaties will need to be progressively negotiated by the United States and Russia, with movement made as early as possible towards the conclusion of START III.
Further down the track, the UK, China and France will need to join the United States and Russia in five-power negotiations to achieve even deeper reductions. The complex political and technical questions associated with moving from the START process to five-power negotiations include issues of parity between the nuclear stockpiles, the timing of negotiations and the sequencing of reductions.
The United States and Russia can prepare the ground for five power negotiations by developing a series of interim confidence building measures. For example, the United States and Russia might share information and expertise with the other three nuclear weapon states on how complex START provisions are verified.
And the task does not end with the dismantlement of weapons. There are further processes that will also have to be pursued to make the reductions permanent and irreversible.• The weapons components need to be destroyed.
• The weapons grade nuclear material needs to be burnt in reactors, or diluted for peaceful nuclear use.
• At the stage of dismantlement, the nuclear weapon states have a special responsibility for accounting for and protecting the components and weapons grade material.
The Threshold and Undeclared Nuclear Weapon States. A central threat to the objective of non-proliferation is posed by the position of the threshold and undeclared nuclear weapon states. And their continued refusal to join the NPT regime is of grave intrinsic concern not only in terms of proliferation, but also in terms of other key aspects of progress towards nuclear disarmament, not least reductions by nuclear weapon states and the conclusion of major multilateral instruments such as a CTBT.
Accordingly, a major challenge is to close the gap which exists between those states—both nuclear and non-nuclear—which have supported and continue to support the NPT regime, and those few states who do not only remain outside it but whose policies directly challenge it. Action to address this situation—to achieve the universalisation of NPT obligations—must include consideration of the NPT opponents’ security concerns, and an associated demonstration that possession by them of a nuclear weapon capability diminishes, rather than enhances, their security.
In this context, the international community has witnessed several recent examples of how this might happen. South Africa took the unilateral route in renouncing and eliminating its nuclear weapons. Argentina and Brazil developed a bilateral approach to reassuring each other of their nuclear intentions.
It must be recognised that the universal acceptance of non-proliferation obligations through membership of the NPT will be essential to all three stockpile reduction processes to which I have referred—ie by US-Russia, by all five declared nuclear powers, and by the threshold/undeclared states.
New Global Nuclear Compact. What I have just taken you through is an extensive, and perhaps rather daunting, list of international negotiations and processes which can advance the goal of a nuclear weapon free world, taking into account the issues that must be resolved if that goal is to be achieved.
But something more is needed, I think, to give the world the necessary momentum and political will. When it comes to the elimination of nuclear weapons, the saying that the whole is more than the sum of its parts has a particularly resonant, catalytic meaning.
What is needed now is really a new global nuclear compact. By this I mean a shared global understanding and commitment by both the nuclear weapon states and the non-nuclear weapon states to enter, in good faith, into the necessary set of separate but related negotiations and processes—bilateral, regional and multilateral—on the basis that their overall, holistic purpose is to fulfil the promise that we shall live in a world free of nuclear weapons.
The sort of global compact I have in mind would not be a treaty or formal arrangement. It would not seek to replace or transcend well established global norms such as the NPT. Nor should it be seen as advocating the sort of tight, sterile linkage that holds one negotiation or process hostage to the conclusion of another. On the contrary, it would be a high level political understanding between governments—perhaps eventually expressed in written declaratory form—about what it is we are seeking as a total outcome of the various relevant negotiations and processes. Against such a background it should be much easier to give shape and content and momentum to those processes.
Without the sort of global understanding or compact I am talking about, it is going to be very difficult indeed to create the new kind of negotiating environment that I spoke of at the beginning, one in which each player feels like a stakeholder in the outcome. And unless every player does feel like a stakeholder, and negotiates accordingly, the goal of a nuclear weapons free world is going to remain very elusive. Even the most perfunctory history of arms control negotiations shows us that the road to final success is often unpredictable, paved with good and bad intentions alike. Apparent breakthroughs may prove to be time consuming cul-de-sacs, while seemingly impossible obstacles may be overcome at the last minute more by high-level political will than dazzling technical expertise.
It may be that, at the end of the day, if the elimination of nuclear weapons is achieved, the precise path by which the world gets there will differ significantly from the blueprint which we hope will be developed by this Commission. But none of this is an argument for simply letting history take its course, and making no effort to shape it.
If anything is to happen it will only be because governments want it to happen, and governments need ideas and blueprints and stimulation and persuasion if they are to act. Political will does not spring from a vacuum: it needs cultivation and stimulation by the force of ideas.
The Canberra Commission on the Elimination of Nuclear Weapons held its second meeting in New York between 22 and 24 April 1996. In recognition of this, the Minister for Foreign Affairs, Mr Alexander Downer, issued a news release on 11 April 1996 noting:
I take this opportunity to announce that I wrote to Commissioners individually in March to advise them of the government’s support for the work of the Commission. In my letters I noted that since the first meeting of the Commission, held in Canberra in January, general elections in Australia had returned a new Government under John Howard. I drew their attention to the broad continuity of approach to non-proliferation, disarmament and arms control issues by Australia’s major parties
I have today in a separate message emphasised to members of the Commission, The importance of their identifying concrete and realistic steps for achieving a nuclear weapon free world. I noted from the mandate also that the proliferation of nuclear weapons is widely recognised as having become the most serious threat to global security. I advised the Commission that it is in a position to show that major benefits flow from progress towards a nuclear weapon free world including the positive multiplier effect of a cooperative system of inter-state behaviour.
In my message I said the Commission must identify steps that are logical, achievable and likely to lead to the desired result In so doing it can not only help to mark out the disarmament agenda into the next century but also materially help to move deliberations along this course. I emphasised that the proposals it produces should above all be practical. To carry weight the Commission’s report will need to convince opinion-formers and decision-makers in perhaps fewer than a dozen states of the benefits of a world without nuclear weapons. It will also need to attract support within the wider global community, including those constituencies who can influence opinion-formers and decision-makers.
The Government believes that in undertaking the challenging task before it the Commission must balance its instincts for idealism with realism. If in doubt, the Commission should err on the side of realism: its report should point to measures which are practicable and achievable and will command support. The Government looks forward to receiving the Commissioners’ report.
On 20 August 1996, the Deputy Prime Minister and Minister for Trade, Mr Tim Fischer, answered a question on notice that had been directed to the Minister for Foreign Affairs by Mr Daryl Melham. The following is an extract for the text of the question and answer (House of Representatives, Debates, 20 August 1996, p 5136):
Mr Melham— …
(3) Did the International Court of Justice (ICJ), in a recent judgment, unanimously agree that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control; if so, (a) does the Government view this obligation as truly binding in view of the ICJ’s unanimous agreement on this matter and (b) what priority will the Government accord this objective, given on the one hand the emerging international consensus that nuclear weapons be eliminated and on the other hand the notions of nuclear deterrence held by Australia’s allies. …
(5) Will the Government support a comprehensive test ban treaty with an unviable entry-into-force provision or will it attempt to negotiate a better entry-into-force provision; if so, (a) does the Government favour a particular alternative entry-into-force provision and (b) is it possible to renegotiate the entry-into-force provision without opening up other issues.
(6) Is the Government making representations to the UK and Russian governments to allow a more flexible entry-into-force provision.
(7) How valuable will the treaty be if it proceeds with the current entry-into-force provision and India or other nations refuse to sign.
(8) If the circumstances in part (8) prevailed, where does the Government see the issue going from that point.
(9) If a comprehensive test ban treaty is signed containing all or much of what Australia advocates, what does the Government view as the next step toward the implementation of the ICJ’s unanimous call for good faith negotiations toward nuclear disarmament.
Mr Tim Fischer—The answer to the honourable member’s question is as follows: …
(3) In a recent advisory opinion, the ICJ unanimously agreed that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.
(a) The Court was requested to give an advisory opinion, not a judgement. Advisory opinions delivered by the ICJ are not binding under international law. The Court itself has been explicit in stating that advisory opinions are just that—advisory—and have no binding force. However, advisory opinions are generally regarded as important judicial pronouncements on principles of international law.
(b) The Government remains fully committed to the twin goals of preventing proliferation of nuclear weapons and working through progressive balanced steps towards complete nuclear disarmament, and will continue to focus on practical, realistic steps to achieve this. The recent adoption and opening for signature of the Comprehensive Test Ban Treaty, in which Australia played a major role, is an important step in the nuclear disarmament process.
(6) and (7) Australia’s preferred position was that the CTBT enter into force simply after a certain number of countries had ratified the treaty. During the course of the negotiations we sought to promote that position with a range of countries, including the UK and Russia. Australia explored all possible avenues to secure a more flexible entry into force provision, but concluded that this was not possible. We recognise the importance, nonetheless, of as many countries as possible, especially the five nuclear weapon states, and the threshold states, signing and ratifying the treaty as soon as possible.
(8) India’s current position that it will not sign the treaty means that the CTBT may not come into force for some time. The CTBT will nevertheless have an indispensable normative value even before entry into force. Signature of the treaty will constitute a political and moral commitment to renounce nuclear testing. There is also a principle of international law that a state which has signed a treaty is obliged to refrain from acts which would defeat the object and purpose of the treaty even before its entry into force. Each of the five nuclear weapon states—the United States, the United Kingdom, Russia, France and China—signed the CTBT upon its opening for signature at the United Nations in New York on 24 September. By bringing nuclear testing to an end, the CTBT is a vital step in the nuclear disarmament process.
(9) Australia is urging nations to sign and ratify the CTBT as soon as possible. If the CTBT has not entered into force within three years of its opening for signature, there will be a Conference of States Parties to consider and decide by consensus what measures consistent with international law may be undertaken to accelerate the ratification process in order to facilitate the early entry into force of the treaty. This process will be repeated at subsequent anniversaries of the opening for signature of the treaty, until its entry into force.
(10) The Government is committed to the twin goals of preventing the proliferation of nuclear weapons and working through progressive balanced steps towards complete nuclear disarmament.
Among the most immediate tasks will be to work for the early commencement of substantive negotiations in the Conference on Disarmament on a convention prohibiting the production of fissile material for use in nuclear weapons or other nuclear explosive devices (known as a “cut-off” convention). This is widely acknowledged as the next logical multilateral step after a CTBT and would be a major new addition to the process of nuclear disarmament and to strengthening barriers to nuclear proliferation.
The nuclear weapon states will continue to bear the major responsibility for steps to reduce further their nuclear stockpiles, with a view to their ultimate elimination. Australia will continue to encourage the nuclear weapon states to maintain the good progress achieved over the past several years in bringing about significant reductions to their nuclear stockpiles/arsenals.
The recently released report of the Canberra Commission on the Elimination of Nuclear Weapons, which the Minister for Foreign Affairs, Mr Downer, presented to the United Nations General Assembly on 30 September 1996 and which the Government will present to the Conference on Disarmament in January 1997, should make a significant contribution to new international thinking on nuclear disarmament.
In response to the failure of the Conference on Disarmament in Geneva reaching a consensus on the draft Comprehensive Test Ban Treaty, the Minister for Foreign Affairs, Mr Alexander Downer issued a news release on 23 August 1996 noting:
The Australian Government is deeply disappointed by the inability of the Conference on Disarmament in Geneva to reach consensus on the draft Comprehensive Test Ban Treaty prepared by the Chairman of the Negotiations, Ambassador Ramaker of the Netherlands.
I believe that the CTBT text represents an historic achievement by the international community. The many commitments and compromises embodied in the text reflect more than two and a half years of intense multilateral negotiations, including at the highest political levels.
Australia and many other countries worked hard to balance the interests of all countries participating in the negotiations in Geneva. Australia supports the treaty text as the best outcome achievable in the negotiations. The vast majority of negotiating countries agree, including the five nuclear weapon states—the United States, the United Kingdom, France, Russia and China—and an impressively diverse group of non-nuclear weapon states. I regret that the Indian Government was not able to allow the treaty text to go forward to the UN General Assembly.
Australia and other supporters of the CTBT have come to the conclusion that failure to close on this treaty now would mean the loss of a CTBT for the foreseeable future. I am convinced that this would represent a very serious setback for global efforts to advance nuclear disarmament and non-proliferation objectives.
The program of action agreed in May 1995 at the Review and Extension Conference of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) identified a CTBT as an important immediate step towards nuclear disarmament in fulfilment of Article VI of the NPT.
Subsequently, in December 1995, the UN General Assembly declared its readiness to resume work before the end of its current session in September in order to endorse the text of a CTBT.
I am deeply committed to an end to testing and I am convinced that this historic opportunity to secure a CTBT should not be lost. A growing number of countries share this view and are prepared to consider appropriate international action to save the treaty.
Therefore Australia has taken action in New York to have the CTBT text put to the UN General Assembly for endorsement. With the support and cooperation of other CTBT supporters, we will work to achieve the treaty’s endorsement during the current session of the UN General Assembly and its opening for signature at the earliest possible date.
On 10 September 1996 the United Nations General Assembly adopted the Comprehensive Test Ban Treaty. In recognition of this, the Minister for Foreign Affairs, Mr Alexander Downer, issued a news release on 11 September including the following:
I warmly welcome the historic vote of the United Nations General Assembly on 10 September (11 September AEST) adopting the Comprehensive Test Ban Treaty. The UN resolution adopting the CTBT attracted 127 cosponsors and the support of an overwhelming majority of states. The results of the vote were: 158 in favour, 5 abstentions, and 3 against.
Australia can be proud of this result. We led international action to save the CTBT. Following the failure of efforts to achieve consensus at the Conference on Disarmament in Geneva, Australia initiated the process in New York which has now resulted in a new nuclear treaty of great significance for the peoples of the world.
The adoption of the CTBT by the United Nations is a milestone in global efforts to advance nuclear disarmament and non-proliferation objectives.
The CTBT will lock into place an end to nuclear testing by the five nuclear weapon states—the United States, the United Kingdom, Russia, France and China all of whom are committed to signing the treaty. It will thus bring the nuclear arms race to a definitive end. It will also attract the support and adherence of an impressively diverse range of non-nuclear weapon states. The CTBT has particular significance for the countries of the Asia Pacific region—the only region of the world where all five nuclear weapon states have at some time conducted nuclear tests.
On 25 September 1996, the Minister for Foreign Affairs, Mr Alexander Downer signed the Comprehensive Test Ban Treaty on behalf of Australia. On the same day Mr Downer issued a news release noting:
The adoption of the CTBT by the United Nations and its opening for signature today are major milestones in global efforts to advance nuclear disarmament and non-proliferation objectives. Australia successfully led international action to save the CTBT. Following the failure of efforts to achieve consensus at the Conference on Disarmament in Geneva, we initiated the process in New York which has now resulted in a new nuclear treaty of great significance for the peoples of the world. The CTBT will lock into place an end to nuclear testing by the five nuclear weapon states—the United States, the United Kingdom, Russia, France and China—all of whom are signing the treaty today. It will thus bring the nuclear arms race to a definitive end. The treaty has also attracted the support and adherence of an impressively diverse range of non-nuclear weapon states. The CTBT has particular significance for the countries of the Asia Pacific region—the only region of the world where all five nuclear weapon states have at some time conducted nuclear tests. I am pleased to see so many other countries signing the treaty today. I strongly urge countries to sign and ratify the CTBT as quickly as possible.
On 31 October 1996, the Minister representing the Minister for Foreign Affairs, Senator Robert Hill, answered a question on notice from Senator Dee Margetts in the Senate. The text of the question and answer follow (Senate, Debates, 31 October 1996, p 4968):
Senator Margetts—
1) Will the Government respond positively to a request by the five nuclear weapon states to carry the text of the Comprehensive Test Ban Treaty (CTBT) to the United Nations General Assembly (UNGA) for ratification; if so, why.
2) (a) Does the current CTBT text contain an entry into force provision that requires all 44 named countries, including India, Pakistan and Israel, to sign the treaty before it enters into force; and (b) has India refused to sign the treaty due to the lack of a timetable for disarmament or timetable for negotiations for disarmament.
3) (a) Given the problems with the entry into force provision, does the Government believe the CTBT will ever enter into force; and (b) if it fails to do so, what value is it.
4) Does the Government believe a timetable for disarmament within a CTBT would fall within the International Court of Justice decision ruling on the illegality of nuclear weapons and within the recommendations of the Canberra Commission; if not, why not.
5) Given that India and the G21 nations are showing concern over the lack of disarmament provisions in the CTBT: (a) will the Australian Government use its position as co-sponsor to take the opportunity to strengthen the CTBT either by pushing for a timetable for disarmament or a timetable for negotiations for disarmament; and (b) will the Australian Government take this to the UNGA; if not, why not.
6) (a) What would Australia’s position be if the G21 nations insisted on alterations to the CTBT text to remove the entry into force provision and/or disarmament provisions; and (b) in the same circumstances, what would Australia’s position be if the P5 nations threatened to walk away from the treaty.
7) (a) Will the Australian Government support measures outside the text of the CTBT, such as an ad hoc committee on nuclear disarmament at Geneva suggested by the Associate Director of International Physicians for the prevention of Nuclear War; and (b) will the Government support motions outside the text within the upcoming session of the UNGA.
Senator Hill—The Minister for Foreign Affairs has provided the following answer to the honourable senator’s question:
1) The recent adoption and opening for signature of the Comprehensive Test Ban Treaty (CTBT), in which Australia played a major role, is an historic step forward in global efforts to advance nuclear non-proliferation and disarmament goals. Australia was very concerned that time was running out for the international community to have a CTBT open for signature by September 1996, as had been called for unanimously by the UN General Assembly last year. That is why, when all avenues were exhausted in the Conference on Disarmament, Australia acted promptly and initiated action which allowed the draft CTBT to be adopted and opened for signature by the international community at the UN General Assembly. Before making the final decision to go ahead, we consulted several key countries, including the nuclear weapon states, but the decision to take the CTBT to the United Nations for adoption was purely an Australian initiative. Australia’s action was the natural conclusion to more than twenty years work to achieve a permanent end to nuclear testing.
2) (a) The CTBT adopted by the United Nations General Assembly and opened for signature on 24 September 1996 will enter into force 180 days after the date of deposit of the instruments of ratification by all 44 states listed in the treaty, including the five nuclear weapon states and India, Pakistan and Israel, but in no case earlier than two years after the treaty’s opening for signature.
(b) Yes.
3) Australia is urging all states that have not yet done so to sign and then ratify the CTBT as soon as possible, so that it can be fully implemented. If the CTBT has not entered into force within three years of its opening for signature, there will be a Conference of States Parties to consider and decide by consensus what measures consistent with international law may be undertaken to accelerate the ratification process in order to facilitate the early entry into force of the treaty. This process will be repeated at subsequent anniversaries of the opening for signature of the treaty, until its entry into force.
Even if the CTBT does not enter into force for some time, signature of the treaty will constitute a political and moral commitment to renounce nuclear testing. There is also a principle of international law that a state which has signed a treaty is obliged to refrain from acts which would defeat the object and purpose of the treaty even before its entry into force. Each of the five nuclear weapon states—the United States, the United Kingdom, Russia, France and China —signed the CTBT upon its opening for signature at the United Nations in New York on 24 September. The fact that over 100 countries have signed the treaty since 24 September demonstrates the strength of international feeling against nuclear testing. By bringing nuclear testing to an end, the CTBT is a vital step in the nuclear disarmament process.
4) No. In its recent advisory opinion, the International Court of justice (ICJ) unanimously agreed that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control. The Canberra Commission on the Elimination of Nuclear Weapons carefully considered the merits of setting out a precise timeframe for the elimination of nuclear weapons, but elected not to do so. The Commission recommended that nuclear weapon elimination should be conducted as a series of phased, verified reductions, and emphasised that “the process followed must ensure that no state feels, at any stage, that further nuclear disarmament is a threat to security.” The Government does not see any advantage in being prescriptive as to the detail, timing or sequence of nuclear disarmament. That is also the approach taken by the Commission. See also the answer to question 5.
5) As noted in the answer to question (1), the CTBT has been adopted by the UN General Assembly and opened for signature. For the first time, the international community can reasonably hope and expect that nuclear testing will not be part of the future to be faced by succeeding generations. The Australian Government recognises that the CTBT is not a perfect treaty. However, as the overwhelming vote in favour of the CTBT resolution at the United Nations demonstrates, the vast majority of countries believe that the CTBT adopted by the UN General Assembly and opened for signature is as fair a reflection of the middle ground as it was possible to achieve.
The Government is committed to the twin goals of preventing proliferation of nuclear weapons and working through progressive balanced steps towards complete nuclear disarmament. However, neither this nor preceding governments in Australia have supported the concept of a so-called timebound framework for nuclear disarmament. The Government’s priority in this area is to focus on practical, realistic steps to achieve the ultimate elimination of nuclear weapons. It considers that calls for a restrictive timebound approach to the disarmament process are not realistic, and therefore do not advance the cause of disarmament in any concrete or practical way. What is required to advance the cause of nuclear disarmament is a patient and dogged pursuit of the various interlocking steps on the path to the complete elimination of nuclear weapons. In the Government’s view, it simply does not make sense to advocate the sort of tight, sterile linkage that holds one negotiation or process hostage to the conclusion of another. The most likely outcome of such an approach would be impasse. The Government believes that it is more productive for the international community to concentrate on actually achieving further progress towards nuclear disarmament rather than seeking to debate an artificial timetable.
6) There were no proposals to alter the text of the CTBT at the resumed UNGA 50 session. The UN resolution adopting the CTBT and opening it for signature was adopted by an overwhelming majority of states.
7) As noted in the answer to question (5), the Government is committed to the twin goals of preventing the proliferation of nuclear weapons and working through progressive balanced steps towards complete nuclear disarmament. Among the most immediate tasks will be to work for the early commencement of substantive negotiations in the Conference on Disarmament on a convention prohibiting the production of fissile material for use in nuclear weapons or other nuclear explosive devices (known as a “cut-off” convention). This is widely acknowledged as the next logical multilateral step after a CTBT and would be a major new addition to the process of nuclear disarmament and to strengthening barriers to nuclear proliferation. Australia is also interested in working for agreement in the Conference on Disarmament on an appropriate framework for the discussion of nuclear disarmament questions, as part of a future comprehensive agenda.
The nuclear weapon states will continue to bear the major responsibility for steps to reduce further their nuclear stockpiles, with a view to their ultimate elimination. Australia will continue to encourage the nuclear weapon states to maintain the good progress achieved over the past several years in bringing about significant reductions to their nuclear stockpiles/arsenals. The recently released report of the Canberra Commission on the Elimination of Nuclear Weapons, which the Minister for Foreign Affairs, Mr Downer, presented to the UN General Assembly on 30 September 1996 and which the Government will present to the Conference on Disarmament in January 1997, makes a significant contribution to new international thinking on nuclear disarmament.
On 25 March 1996, the Prime Minister, Mr John Howard, made the following statement:
I welcome the signing of the three Protocols to the South Pacific Nuclear Free Zone (SPNFZ) Treaty by France, the United Kingdom and the United States of America.
All five nuclear weapons states have now undertaken not to use or threaten to use nuclear explosive devices against any SPNFZ member and not to test nuclear explosive devices within the Treaty area.
Accession by France, the United Kingdom and the United States of America to the Treaty Protocols beings to an end the unhappy chapter of nuclear testing in the South Pacific.
France’s signature to the Protocols is particularly welcome, as is France’s response to the concerns of South Pacific states by announcing its intention to close its testing facilities, except those required for environmental monitoring, and to support the International Atomic Energy Agency’s (IAEA) study into the effects of its testing.
All Australians will hope that this action by the nuclear powers will have a positive influence on the critical final stages of the negotiation of a Comprehensive Test Ban Treaty in the Conference on Disarmament in Geneva where negotiations are due to end this year.
Australia remains committed to a ban on the testing of nuclear weapons and is working actively for a successful conclusion of Comprehensive Test Ban Treaty negotiations.
On 11 April 1996, the African Nuclear-Weapon-Free Zone Treaty was signed. In recognition of this the Minister for Foreign Affairs, Mr Alexander Downer, issued a news release on 12 April 1996 including the following:
I warmly welcome the signing in Cairo last night of the African Nuclear-Weapon-Free Zone (Pelindaba) Treaty, and congratulate the countries involved on the success of this initiative.
I am pleased that Australia was able to contribute to the drafting of the Pelindaba Treaty. In recognition of its standing and expertise in non-proliferation and disarmament matters, Australia was the only extra-regional state invited to participate in a series of experts meetings between 1991 and 1995 tasked with negotiating and drafting the Treaty.
Pelindaba is therefore a powerful symbol of the will of African nations—and of the international community generally—to move away from the questionable logic in today’s world of nuclear confrontation and to seek security through cooperative regional and global arrangements. The recent accession of the three Western nuclear weapon states to the protocols of the South Pacific Nuclear Free Zone Treaty, and the conclusion of a South East Asian Nuclear-Weapon Free Zone are further indicators of this positive trend in international relations.
The new zone encompasses continental Africa and the islands covered by the Organisation of African Unity. Like other such treaties, Pelindaba contains Protocols which bind relevant extra-regional countries—the recognised nuclear weapon states, and states which have responsibility for territories within the zone—to respect the provisions of the treaty.
I hope all states outside Africa will extend full cooperation and support to the new zone and its objectives. The Nuclear Non-Proliferation Treaty Review and Extension Conference in 1995 unanimously endorsed the further development of the network of nuclear-weapon-free zones as contributing to enhanced global and regional security.
I hope that Pelindaba and other recent developments in this field will have a positive impact on the broader nuclear non-proliferation and disarmament agenda, in particular the conclusion this year of the negotiations on a Comprehensive Test Ban Treaty in the Conference on Disarmament in Geneva.
On 8 June 1996, China conducted a nuclear test. In response the Minister for Foreign Affairs, Mr Alexander Downer, issued a news release on the same day noting:
I condemn the nuclear test conducted today by China.
With the conclusion of France’s nuclear testing in the South Pacific, China stands alone as the only nuclear weapon state to persist, against the express will of the international community, with a nuclear weapon testing program. China’ s test comes at a time when negotiations to conclude a Comprehensive Test Ban Treaty (CTBT) are entering their final stage. The international community has called for the treaty to be concluded and opened for signature by this year’ s United Nations General Assembly in September. The timing of the latest test by China is therefore particularly regrettable.
Australia’s opposition to all nuclear testing is long-standing and firm. our response to today’ s test can leave China in no doubt about the strength of feeling on the part of the Australian Government, and the Australian community, against continued nuclear testing. Our message is clear: China should heed the strength and legitimacy of international feeling on this important issue and desist immediately from all further testing. China should act now to join the other nuclear weapon states in desisting from testing pending entry into force of a CTBT.
It is clear the international community wants to see a move away from the now out-dated Cold War logic of nuclear confrontation and to wind back the threat posed by the further development and proliferation of nuclear weapons. Continued nuclear testing has no place in today’s world.
On 29 July 1996, China announced that it had conducted a nuclear test and declared that it would observe a moratorium on testing from 7 July. In response, the Minister for Foreign Affairs, Mr Alexander Downer, issued a news release on the same day noting:
The Australian Government has consistently opposed nuclear testing by any state and this latest test is no exception. I have called in the Chinese Ambassador this afternoon and made this point to him. I also made clear in Jakarta last week to Chinese Foreign Minister Qian Qichen that Australia was strongly opposed to any further Chinese tests.
Nonetheless I warmly welcome the Chinese announcement that it will observe a moratorium on nuclear testing from tomorrow. For the first time ever, this will mean that all five nuclear weapon states will be observing testing moratoria. This is an historic development.
On 8 July 1996, the International Court of Justice responded to the request put to it by the United Nations General Assembly for an Advisory Opinion on the legality of use or threat of use of nuclear weapons. A Department of Foreign Affairs and Trade news release of the same day noted:
The Government will be studying carefully the Court’s opinion and its implications for the future nuclear disarmament and non-proliferation agenda. Our primary concern will be to ensure that the mechanisms which are in place and the concrete, practical steps which are being taken to contain and reduce the threat posed by nuclear weapons are not undermined.
Early finalisation of a Comprehensive Test Ban Treaty is a central immediate goal for Australia and one for which we have continued to work hard in the Conference on Disarmament in Geneva. Achievement of this goal will return immense practical dividends in terms of enhanced international security.
On 31 October 1996 in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer answered a question on notice from Mr Daryl Melham. Extracts from the text of the question and answer follow (House of Representatives, Debates, 31 October 1996, p 6354):
Mr Melham—
(2) Is it a fact that the ICJ decision did not state that the use of nuclear weapons is definitely legal even when the existence of the state is in question and is immediately threatened.
(3) Did the President of the ICJ, Justice Mohammed Bedjaoui, in presenting the decision, stress that there was not a half-open door in the court’s failure to agree that the use of nuclear weapons was illegal in self defence in extremis.
(4) Was the ICJ panel of 14 members evenly divided in attempting to deliver a verdict on the use of nuclear weapons in extremis.
(5) Is it a fact that 3 of the 7 members who opposed the proposition that the use of nuclear weapons in extremis was illegal did so on the grounds that the use of nuclear weapons was illegal in all possible circumstances; if so, does it follow that 10 members were opposed to the legality of the use of nuclear weapons.
(6) Did the ICJ indicate that its decision was based on the laws of war as determined by the Geneva and Hague conventions according to which weapons that cannot discriminate between combatants and non-combatants and that affect third countries must be considered illegal.
(7) Has the Government considered the opinion of Judge Weeramantry to the effect that nuclear weapons could be legal under the rules of a mutual suicide society but not among a community of nations.
(8) Has the USA threatened to use nuclear weapons against nations such as Libya or Iraq; if so, does Australia’s participation with the USA in joint defence facilities place it in a position where it may be an accomplice in activities not sanctioned by the ICJ.
Mr Downer—The answer to the honourable member’s question is as follows:
(2) The ICJ decision stated that there was no general prohibition on the threat or use of nuclear weapons under international law, nor was their threat or use specifically authorised. The Court went on to give its opinion that the threat or use of nuclear weapons would generally be contrary to international law applicable in armed conflict, but was unable to give a definitive determination on the question of legality in extreme cases of self-defence where the survival of a state was at stake.
(3) In his declaration appended to the advisory opinion, President Bedjaoui indicated that the fact that the Court was not in a position to give a definitive answer on the legality of nuclear weapons in extreme circumstances of self-defence ‘should not in any way be interpreted as leaving the way open to the recognition of the lawfulness of the threat or use of nuclear weapons’. According to President Bedjaoui, the Court does no more than place on record the existence of a legal uncertainty.
(4) The ICJ panel of 14 members was evenly divided both in its opinion that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in its opinion that the current state of international law was such that the Court could not conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake. In these parts of the Court’s opinion, the Court President’s affirmative casting vote broke the deadlock.
(5) The Court did not expound the proposition that the use of nuclear weapons in extremis was illegal—it in fact stated that while the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, it ‘[could] not conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence…’. Seven judges supported the proposition that no definitive conclusion could be drawn in this respect; of the seven judges who voted against this proposition, only two (Judges Weeramantry and Koroma) did so on the grounds that the use of nuclear weapons was illegal in all circumstances. Two judges dissented on the grounds that the use of nuclear weapons was legal in certain circumstances (Judges Schwebel and Guillaume); the remaining three dissenting judges criticised the process by which the Court reached its conclusion in this respect.
(6) The ICJ based one of its conclusions on international humanitarian law, to which the Geneva and Hague Conventions are fundamental and much of which now constitutes customary international law. The Court made reference in this context to the obligation incumbent on States never to use weapons that are incapable of distinguishing between civilian and military targets or which would cause unnecessary suffering to combatants.
The Court concluded (unanimously) that a threat or use of nuclear weapons should be compatible with international humanitarian law, and also (by seven votes to seven) that ‘…the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law’, although it followed this with the caveat in respect of extreme circumstances of self-defence.
(7) Judge Weeramantry argues that the threat or use of nuclear weapons is illegal in any circumstances. The Court, however, was unable to provide a definitive determination on the question of the legality of the threat or use of nuclear weapons in an extreme circumstance of self-defence (where the very survival of a State would be at stake), and so Judge Weeramantry’s opinion in this respect was in the minority.
(8) United States nuclear doctrine with regard to non-nuclear weapon states is based on the long-standing negative security assurance that the United States will not use nuclear weapons against non-nuclear weapon states parties to the Nuclear Non-Proliferation Treaty except in the case of invasion or any other attack on the United States, its territories, its armed forces or other troops, its allies, or on a state towards which it has a security commitment, carried out or sustained by such a non-nuclear weapon state in association or alliance with a nuclear weapon state.
On 31 October 1996 in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Daryl Melham. Extracts of the questions and answers follow (House of Representatives, Debates, 31 October 1996, p 6356):
Mr Melham—
(1) Do Australia’s safeguards requirements specify that Australian uranium be sold only to countries who are parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).
(2) Is Taiwan a party to the NPT.
(3) Do Australia’s safeguards requirements demand that customers for Australian uranium apply full scope safeguards to their nuclear fuel cycles.
(4) Does the recently released report of the Canberra Commission recommend that the importance of nuclear export controls is acknowledged in the Nuclear Non-Proliferation Treaty Review and Extension Conference and that new supply arrangements should require acceptance of full scope safeguards as a necessary precondition, thereby specifying the full scope supply standard as the accepted global norm for nuclear supply.
(5) Does article 4(a) of the South Pacific Nuclear Zone Treaty impose a formal legal obligation not to provide fissionable material to any non-weapon state unless subject to article III.1 of the NPT, which means full scope safeguards.
(6) Has Taiwan a full scope safeguards agreement under INFCIRC/153 with the International Atomic Energy Agency.
(7) Is it possible for Taiwan to conclude an agreement.
(8) Does Australian safeguards policy require the conclusion of a bilateral safeguards agreement with customers for Australian uranium; if so, (a) when and with which countries have these agreements been signed and (b) has Australia signed an agreement with Taiwan.
(9) Given that Australia does not recognise the Taiwanese Government, how will an agreement with Taiwan be negotiated.
Mr Downer—
The answer to the honourable member’s question is as follows:
(1) Since 1977, Australia’s policy on the export of uranium has specified that, in the case of non-nuclear weapon states, a minimum requirement is that they be a party to the Nuclear Non-Proliferation Treaty (NPT). Adherence to the NPT is approaching universality and is the most common way in which non-nuclear weapon states have expressed their internationally legally-binding commitments never to acquire nuclear weapons and to accept fullscope safeguards in order to verify this undertaking. Non-nuclear weapon states have expressed similar commitments in other international treaties such as the Treaty of Tlatelolco, which provides for a nuclear weapon free zone in Latin America and the South Pacific Nuclear Free Zone Treaty, or Treaty of Rarotonga, of which Australia is a signatory.
(2) Australia does not regard Taiwan as a state and therefore does not acknowledge it to be a party to the NPT. Before its expulsion from the United Nations in 1971, however, Taiwan (as the Republic of China) had both signed and ratified the NPT. Taiwanese authorities are understood to continue to consider Taiwan bound by the principles and obligations of the NPT. Taiwan expressed its support for the NPT in a statement welcoming the indefinite extension of the Treaty in 1995.
(3) Treaty-level obligations are placed on uranium exported from Australia and its derivatives in the international nuclear fuel cycle which are identified as Australian obligated nuclear material (AONM). These obligations provide that AONM may only be transferred where, in the case of non-nuclear weapon states, it will be subject to fullscope safeguards. The requirement that nuclear exports be covered by fullscope safeguards in non-nuclear weapon states has in recent years become the international norm and, for example, has been adopted as a supply standard by the Nuclear Suppliers Group. In the case of transfers of AONM to nuclear weapon states Australia requires treaty-level assurances that AONM will only be used for peaceful purposes and arrangements must be in place under which AONM is subject to International Atomic Energy Agency (IAEA) safeguards.
(4) The report of the Canberra Commission states that “The importance of nuclear export controls is acknowledged in the NPTREC `Principles and Objectives for Nuclear Non-Proliferation and Disarmament’. These state that new supply arrangements should require acceptance of fullscope safeguards `as a necessary precondition’, thereby clearly specifying the fullscope safeguards supply standard as the accepted global norm for nuclear supply.”
(5) Article 4 (a) of the South Pacific Nuclear Free Zone Treaty imposes a legal obligation not to provide nuclear material unless subject to the safeguards required by Article III.1 of the NPT; that is fullscope safeguards.
(6) and (7) INFCIRC/153 is the commonly-used reference for the model safeguards agreement set out in the IAEA information circular with that designation. An INFCIRC/153-type safeguards agreement is the standard safeguards agreement which non-nuclear weapon states party to the NPT are required to conclude with the IAEA. Taiwan does not have an INFCIRC/153-type safeguards agreement with the IAEA. In Taiwan, the Agency applies safeguards to nuclear facilities in Taiwan under a trilateral agreement between the IAEA, the United States and Taiwan (INFCIRC/158). The combination of these arrangements and bilateral arrangements between the United States and Taiwan results in the application of de facto fullscope safeguards in Taiwan.
(8) Yes.
(a) Republic of Korea (ROK): 2 May 1979
United Kingdom: 24 July 1979
Finland: 9 February 1980
USA: 16 January 1981
Canada: 9 March 1981
Sweden: 22 May 1981
France: 12 September 1981
EURATOM: 15 January 1982
Philippines: 11 May 1982
Japan: 17 August 1982
Switzerland: 27 July 1988
Egypt: 2 June 1989
USSR (now the Russian Federation): 24 December 1990
Mexico: 17 July 1992
(b) No.
(9) Australia’s one-China policy precludes the conclusion of a standard government-to-government bilateral safeguards agreement with Taiwan. The Government, like its predecessor, is considering possible alternative arrangements for ensuring the observance of Australia’s safeguards conditions on any uranium exported from Australia to Taiwan. In response to a Senate Estimates question in 1995 on the Government’s position with regard to uranium exports to Taiwan Senator Evans said: “It (uranium exports to Taiwan) is contingent on the conclusion of a satisfactory safeguards agreement. Part of the problem has been that, because Taiwan is not recognised as a sovereign independent country it has been a matter of finding a way around that basic technical difficulty. We have been trying to facilitate this trade by discussing with United States officials the equivalent of the Canada-US arrangement, which enables US safeguards coverage to apply to Canadian uranium sales to Taiwan following processing in the US. It may be that that offers us a way through a similar dilemma. We are interested in the Taiwan energy market. We have no reason to believe that a safeguards policy would not be applicable, recognised, enforced and applied in Taiwan. But there is a technical difficulty in setting up the formalised legal framework to make that work.”
On 5 December 1996, the Minister representing the Minister for Foreign Affairs, Senator Robert Hill, provided the Senate with the following information concerning the Australian position on resolution L 37, the Malaysian resolution which called for negotiations leading to a nuclear weapons convention (Senate, Debates, 5 December 1996, p 6797):
Senator Hill—I will give a little background to this because I am not sure that all senators would be familiar with this matter. The Malaysian sponsored General Assembly resolution urging negotiations on nuclear disarmament was a new resolution which built upon extracts from the advisory opinion on the legality of the threat or use of nuclear weapons issued by the International Court of Justice in July.
As you know, Madam President, the Australian government is fully committed to achieving nuclear disarmament. While we were therefore sympathetic to the general nuclear disarmament aims behind the resolution, we were concerned about its main thrust, which was early negotiation on a nuclear disarmament convention. It was the view of the Australian government that there are many steps to be taken on the road to the ultimate goal of nuclear disarmament before the question of a single nuclear weapons convention could be productively addressed.
Australia would therefore have preferred this resolution to focus attention on the immediate and intermediate concrete steps which would take forward the process of nuclear disarmament rather than seeking an artificial timetable or possible final mechanism for achieving the goal. Australia therefore abstained on the resolution, as did other regional countries such as Japan and South Korea.
Australia’s abstention sought to balance considerations such as Australia’s commitment to the twin goals of preventing proliferation of nuclear weapons and working through progressive balanced steps towards complete nuclear disarmament on the one hand and, on the other hand, our concern to ensure that international deliberation on the International Court of Justice’s advisory opinion facilitates rather than complicates the attainment of real advances on the international disarmament agenda.
While abstaining in the vote on the resolution as a whole, Australia did vote in favour of the operative paragraph of the resolution which underlined the unanimous opinion of the court that:
There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.
Which, again, underlines the government’s firm commitment to nuclear disarmament. In relation to the vote in the plenary session, there is no reason to believe—presuming it will be the same resolution that is returned—that Australia would change its position.
Over the course of 1996, the Australian Government pursued a global ban on anti-personnel landmines.
On 15 April 1996, the Department of Foreign Affairs and Trade issued a news release noting:
Foreign Affairs Minister Alexander Downer and Defence Minister Ian McLachlan today announced Australia’s support for a global ban on the production, stockpiling, use and transfer of anti-personnel landmines (APL) and a unilateral suspension on the operational use of APL by the Australian Defence Force. These measures come into effect immediately.
By joining the small but growing number of countries which have suspended the use of landmines by their national defence forces, Australia hopes, by the example it sets, to add its weight to the international campaign for a global ban on the use, transfer, production and stockpiling of landmines—that is, their total elimination as a weapon of war. Australia will work internationally for the achievement of such a ban.
Mr McLachlan said it was important to recognise that the ADF had not used APL operationally for many years and that ADF military doctrine required that landmines only be used in strict conformity with Australia’s international legal and humanitarian obligations.
Mr McLachlan added that Australia did not produce and would not export landmines, and that ADF stocks of landmines would be used for training and research purposes only. Only in case of a substantial deterioration in our strategic circumstances, in which Australia’s security was under threat and the denial of an APL capability to the ADF would result in additional Australian casualties and damage to vital infrastructure would the suspension be reviewed.
In parallel with the above measures, the Ministers also committed Australia to continue to work for the strengthening of the Inhumane Weapons Convention (IWC), Protocol II of which restricts the use of land mines, and to further practical contributions to the enormous and urgent task of mine clearance.
On 3 May 1996, in Geneva, H.E. Mr Ronald Walker, made the following statement to the first Review Conference of the States Parties to the Inhumane Weapons Convention:
Mr President
Since the Preparatory Experts Meetings for this Review Conference began, the number of States Parties to the Convention has grown from well under 40 to approaching 60. If this rate continues, this formerly neglected instrument could indeed become universal.
There can be no doubt of the reason for this rapid increase in adherence—it is because the Convention on the use of Certain Conventional Weapons (‘CCW’) has become the focus of efforts to address the obviously appalling problems caused by anti-personnel mines in recent years.
It is appropriate that attention focussed on the CCW, not just because the Convention took some—albeit too modest—measures to regulate landmines, but because its membership, if not numerous, includes a broad range of countries, including those that can have the most impact on the landmines problem.
The amended Protocol II does not ban anti-personnel mines and does not go as far in the area of interim protections for civilians as we and many others in this hall would have wished. While this is disappointing, it does not prevent us from welcoming the amended protocol as an important first step on the road to a legally binding global ban—a step with real, practical and immediate benefits, and one on which we are determined to build with urgency and vigour in the months and years ahead.
Looking over the new Protocol, and recalling the extensive negotiations behind it, we want to draw attention to areas of improvement that we think are particularly important:• First, the extension of the scope of application of the Protocol to non-international armed conflicts addresses one of the most often cited gaps between the old Protocol and the reality of APL misuse. This gives legitimate governments the legal basis for outlawing use of APL by insurgent groups.
• Second, the general humanitarian restrictions contained in Article 3 are much stronger than the old Protocol, among other things specifically prohibiting excessively injurious mines, further emphasising the need to discriminate between military and civilian objectives, and requiring advance warning in the case of all weapons covered by the Protocol. Anti-sensing devices are banned. We believe these rules, if properly disseminated and applied, will reduce the blatant use of APL as weapons of terror. We also believe that rigorous adherence to Article 3 will mean that in no circumstances can a state party justify failing to fence long-lived mines.
• Third, we have banned the use of non-detectable mines.
• Fourth, the rules on manual mine laying have been enhanced. Here we must admit that the negotiations began from a very low base, as the old Article was extremely weak. We would have preferred a total ban on the use of long-lived manually placed mines.
• Fifth, the restrictions on remotely delivered mines are stronger, with a mandatory recording requirement.
• Sixth, we have introduced a number of prohibitions and restrictions on the transfer of mines. We believe this will provide a foundation for even further cooperation between the States Parties to eliminate the acquisition of prohibited mines, and the acquisition of mines by states not party to the Convention.
• Seventh, we have introduced an annual meeting of the States Parties to exchange information on the operation of the protocol. For Australia, this was a key element in ensuring that the States Parties take responsibility for keeping their Convention effective and up to date with the landmines problem.
• Eighth, we have introduced a war crimes Article.
Also, a number of technical improvements were made through the initiatives of military experts involved in the negotiations, which should make a practical difference in the field, such as a standard warning sign, and a requirement that mine records be kept at a level of command sufficient to ensure their safety.
Mr President, a small number of States Parties have considered it necessary to insist on retaining the option of availing themselves of a long—up to nine years—phase-in period for the technical standards on detectability and which limit longevity. Australia regrets that this was a precondition for agreement. It hopes very few, if any, States Parties will avail themselves of this option and if they do they will nonetheless, in the transition period make every effort to meet the new standards to the maximum extent possible from the first day and fully from the earliest dates they can achieve.
Mr President, from the start of these negotiations, Australia has set out to explode a number of myths.
• We did not agree that strict implementation of the rules in the Protocol would have prevented the evident APL problem—the rules were patently too weak, and the process of strengthening them has been worthwhile.
• We did not agree that strengthening the rules would deter states from adhering to the Treaty—there is no evidence for this. For Australia’s part, we will not flag in our intense diplomatic efforts to urge those states which are not yet party to the Convention, especially those in our region, to adhere to it and especially to its new landmines Protocol.
• We never accepted that there was a rigid distinction between humanitarian law and disarmament law that prevented the introduction of a transfers Article—the amended Protocol, while brought closer into line with modern humanitarian instruments, also shows that the States Parties have placed their own sovereignty above theory.
On 3 October 1996, Australia made a statement to the International Strategy Conference Towards a Global Ban on Anti-Personnel Mines. The following is an edited version of the statement:
We believe the structures and expertise of the Conference on Disarmament—the UN’s arms control negotiating body—must likewise be harnessed to that end for, to be meaningful, any ban on anti-personnel landmines must be global in scope, internationally negotiated, legally binding and verifiable. The Conference on Disarmament has already delivered such treaties for us in the fields of chemical weapons and nuclear testing. Let landmines—a conventional weapon but one whose indiscriminate destructive potential is daily demonstrated in tragic circumstances in countries from Cambodia to Mozambique—be one of the Conference’s next great challenges.
Maintaining international awareness and debate on the landmines issue will be an important backdrop and adjunct to these negotiations. Conferences like this one will help as will the public information campaigns of governments and non-government organisations. My delegation is happy to see so many NGOs represented in this Conference and is particularly pleased to have a representative of the Australian Network of the International Campaign to Ban Landmines as a full member of our own Delegation. The landmines issue is one where the efforts of governments and NGOs should be complementary and mutually reinforcing.
As a further contribution to the international debate, Australia believes it would be appropriate and useful for the United Nations Disarmament Commission to add the landmines issue to its agenda over its next regular three-year cycle in 1997-99. The Commission is the international community’s universal-membership deliberative body on arms control issues. It should not be silent on the question of landmines. And indeed its deliberations should assist and supplement the negotiations in the Conference on Disarmament.
It is also important that we not forget the Inhumane Weapons Convention review process—though I imagine there are many in this room who might well want to forget that gruelling exercise. Though disappointed that the Review Conference which concluded in May of this year did not achieve more, Australia is committed to early ratification of the amended Protocol II on landmines as well, of course, as the new Protocol IV on Blinding Laser Weapons…
The IWC is currently the only legally binding international instrument which addresses landmines. The revised Protocol II provides enhanced protections, restrictions and prohibitions which will be important in the period before a total ban is achieved. Early entry into force of the revised Protocol—for which 20 ratifications are required—will bring the new provisions into effect faster and will also initiate the new annual consultative meetings of parties and associated reporting requirements. We see these meetings—and the next Review Conference in 2001—as important fora for taking the landmines issue forward both in terms of additional measures to further strengthen the existing regime as well as developing international political support for a total ban.
On 15 October 1996, the Minister for Foreign Affairs, Mr Alexander Downer, tabled in the House of Representatives amended protocol II and new protocol IV annexed to the Convention on Prohibitions and Restrictions on the Use of Certain Conventional Weapons which may be deemed to be excessively injurious or to have indiscriminate effects, also known as the Inhumane Weapons Convention, of 10 October 1980. Mr Downer also made the following Ministerial Statement (House of Representatives, Debates, 15 October 1996, p 5427):
… Australia is a party to the convention and participated fully in the review conference which adopted amended protocol II and new protocol IV on 3 May 1996 and 13 October 1995 respectively. Protocol II deals with prohibitions or restrictions on mines, booby traps and other devices. Protocol IV deals with blinding laser weapons. Amended Protocol II
On coming to office, the government ordered a review of Australia’s policy on antipersonnel landmines. As a result of that review, the Minister for Defence (Mr McLachlan) and I announced on 15 April that Australia would support a global ban on the production, stockpiling, use and transfer of antipersonnel landmines, a policy we promoted at the final session of the Inhumane Weapons Convention Review Conference when it met in Geneva shortly thereafter.
The new policy also suspended the operational use of antipersonnel landmines by the Australian Defence Force. While Australia has not used landmines operationally for over 20 years and had never used them except in strict conformity with international legal and humanitarian norms, it was appropriate for a country with Australia’s strong humanitarian record to demonstrate leadership on this issue.
This new policy was and is a major achievement in foreign policy and humanitarian terms. It took Australia to the forefront of the international community’s efforts to rid the world of these insidious weapons which kill or maim some 30,000 people a year. Since our announcement, other countries —notably the United States, Germany, the United Kingdom and New Zealand —have moved their national positions in directions which we hope will contribute to the international momentum in favour of a total ban.
I believe that tragedies caused by the indiscriminate use of antipersonnel landmines concern all Australians who have a conscience. I have received, both in opposition and in government, an enormous amount of correspondence from people urging Australia vigorously to pursue a total ban.
We were disappointed that a total ban was not achieved in Geneva, but the conference did adopt an amended protocol II, which contains much stronger restrictions, prohibitions and other norms and thus provides greater protection for civilians and peacekeeping forces than does the existing protocol to which Australia is already a party. It is an agreement worth having. While it does not go as far as we wished on antipersonnel landmines, it is nevertheless a first step in the process towards a total ban.
The fact is that protocol II of the Inhumane Weapons Convention is the only international legal instrument governing the use of and trade in landmines. In the absence of a complete ban on antipersonnel landmines, the revisions to protocol II of the convention provide interim measures which will lessen the devastating effects of these appallingly misused weapons. It is also the only international instrument restricting the use of antivehicle and antitank mines and so will remain important regardless of when a total ban on antipersonnel landmines is achieved.
The new measures embodied in the revised protocol are as follows:
First, the new protocol II extends the scope of the original protocol to internal conflicts. This addresses one of the most often cited gaps between the old protocol and the reality of antipersonnel landmine misuse today.
Second, the humanitarian restrictions in the revised protocol are considerably stronger: excessively injurious mines are specifically prohibited; antisensing devices and non-detectable mines are banned; the need to discriminate between military and civilian objectives is further emphasised; and advance warning must be given of the use of all weapons covered by the protocol.
We believe the aforementioned new provisions will reduce the blatant use of antipersonnel landmines as weapons of terror.
Third, new prohibitions and restrictions on the transfer of mines will help impede the acquisition of prohibited mines and the acquisition of mines by states which are not party to the convention or do not agree to apply the norms it embodies.
Fourth, the rules relating to fencing, marking, recording and monitoring of manually placed landmines and the self-destruction/self-deactivation standards required of this type of mine have been tightened.
Fifth, the restrictions on remotely delivered mines are stronger, with mandatory recording requirements and the requirement that antipersonnel landmines of this type be short lived.
Sixth, the protocol provides for annual meetings of the states parties and a second review conference in 2001, measures strongly promoted by Australia as a means of maintaining pressure for a total ban and for further strengthening of the protocol as an interim measure.
Seventh, the protocol provides for penal sanctions against those violating the protocol.
Finally, a number of technical improvements should make a practical difference in the field, such as a standard sign warning of antipersonnel landmines and a requirement that mine records be kept at a level of command sufficient to ensure their safety.
The protocol also assigns clear responsibility for the removal of mines and minefields and provides a framework for greater technological cooperation on mine clearance.
For the reasons I have just outlined, the arguments are overwhelmingly in favour of our early ratification of this revised protocol. Ratification is supported by the Australian Red Cross Society, the Australian network of the international campaign to ban landmines, and many, many individual Australians and other non-government organisations. The Coordinator of the Australian network, Sister Patricia Pak Poy, was a full member of the Australian delegation to the review conference, as well as to expert group meetings which preceded it.
The new protocol will enter into force six months after the 20th state party to the convention has ratified it. Australia is keen to be among the first 20 to ratify and we will be encouraging other countries to ratify quickly, in addition to our continuing campaign to promote greater adherence to the convention, particularly in our region.
In international forums, the Australian government will continue its role of mobilising the strong wave of support for eliminating antipersonnel landmines as a weapon of war. Earlier this month, we took part in an international conference of pro-ban states and non-government groups in Ottawa which looked at future strategies for achieving a ban. We will also shortly be supporting a resolution at the 51st session of the United Nations General Assembly which embodies the objectives of the pro-ban states and obliges others to indicate where they stand on this issue. …
Whereas protocol II of the Inhumane Weapons Convention is about remedies, protocol IV is about prevention: preventing, by means of a blanket prohibition, the use and transfer of laser weapons specifically designed to cause permanent blindness to unenhanced vision. These weapons are still in the developmental phase and to date there is no record of blinding weapons being used in combat situations.
The protocol is an eminently humane measure which will also contribute to the safety of our forces in combat situations. It is timely in that it will control such an abhorrent and excessively injurious weapon before it has become widely available on the international market. It has the support of the Australian Red Cross Society and non-government organisations, including—most poignantly—those representing blind Australians. Nothing in the protocol will affect anything the Australian Defence Force or Australian industry is doing or planning to do.
I accordingly commend the protocol, along with amended protocol II, to the House. In accordance with the reformed treaty making process which I outlined to the House on 2 May 1996, the protocols, along with accompanying national interest analyses, will lie before the House for at least 15 sitting days and be open to scrutiny including by the Joint Parliamentary Committee on Treaties.
On 13 November 1996, the United Nations General Assembly adopted a resolution calling for urgent negotiations for a global ban on anti-personnel landmines. In recognition of this the Minister for Foreign Affairs, Mr Alexander Downer, issued a news release on 14 November 1996 noting:
I warmly welcome the historic adoption by the United Nations General Assembly on 13 November (14 November AEST) of a resolution calling for urgent negotiations for a global ban on anti-personnel landmines. The UN resolution attracted 115 co-sponsors and the support of an overwhelming majority of states. The results of the vote were: 141 in favour, none against and 10 abstentions.
Australia can be proud of the part it has played in contributing to this outcome. Australia has supported work towards a global ban on anti-personnel landmines since April this year, and co-sponsored the United States-initiated resolution which was voted on today.
The UN resolution adopted today represents the first time the General Assembly has called for a total ban on anti-personnel landmines. The breadth of the support shown by the vote is clear testimony to the strength of international feeling against landmines and will reinforce efforts to rid the world of these insidious weapons which kill or maim some 30,000 people a year.
Between 5 and 7 April 1996 a number of North Korean troops entered into the Joint Security Area within the Demilitarised Zone. The Minister for Foreign Affairs, Mr Alexander Downer, issued a news release on 10 April 1996 noting:
The resolution of tensions on the Korean Peninsula can only be achieved through dialogue between the DPRK and the Republic of Korea. Acts which create instability and undermine mutual confidence inhibit progress toward a lasting solution to the division of the Korean Peninsula.
The Australian Government firmly believes that the existing Armistice and crisis management arrangements should be maintained until such time as a comprehensive peace agreement, acceptable to all the relevant parties, is achieved.
On 19 November 1996, in response to a question without notice from Mr Ian Sinclair concerning the Sydney declaration concluded between Australia and the United States in July 1996, the Minister for Foreign Affair, Mr Alexander Downer, provided the House of Representatives with the following information (House of Representatives, Debates, 19 November 1996, p 7050):
Mr Downer—… The right honourable member asked about the Sydney declaration made at the time of the AUSMIN talks in Sydney in July of this year. That declaration’s objective was really perfectly clear. The Sydney declaration affirmed the two countries’ intention to work together—and with others in the region—to promote common security interests. The Sydney declaration is intended as an instrument to project a regional security environment which promotes stability and prosperity. But, importantly, it has to be understood that the Sydney declaration is not about the containment of any country. The Sydney declaration is about enhancing the cause of regional security cooperation and is an important component in the overall security architecture of the region, which includes a web of bilateral and multilateral security arrangements, as well as the multilateral forum, the ASEAN regional forum.
The government is committed to maintaining direct engagement with Asia. At the same time, we recognise that economically and militarily the United States is—and I am sure will remain—a major player in the region. We want to keep it that way. The United States underwrites regional growth and security as no other country can. For that reason, policies to promote its presence and to promote strong relations between the United States and East Asia remain a high priority for this government.
On 21 August 1996, the Attorney-General, Mr Daryl Williams, in response to a question on notice from Mr Daryl Melham provided the House of Representatives with the following information concerning the extradition arrangements Australian has with the countries of ASEAN and the Western Pacific region (House of Representatives, Debates, 21 August 1996, p 3492):
Mr Williams—Australia is able to grant extradition to countries to which the Extradition Act 1988 applies. Application of the Extradition Act to a country gives legal force in Australia to extradition arrangements concluded by Australia with another country. These arrangements are of different kinds, with bilateral treaties being only one example. Thus the Extradition Act may be applied to give effect to bilateral extradition treaties, various ‘less than treaty status’ arrangements, British extradition treaties dating from the late nineteenth and early twentieth centuries inherited by Australia, and extradition obligations arising under multilateral conventions… ASEAN
The ASEAN countries include Malaysia, Singapore, Brunei Darussalam, Thailand, Indonesia, the Philippines and Vietnam.
Australia’s extradition arrangements with Malaysia, Singapore and Brunei Darussalam are governed by the Commonwealth Scheme for the Rendition of Fugitive Offenders, the London Scheme. An extradition arrangement under the London Scheme is a ‘less than treaty status’ arrangement under which the extradition laws of one Commonwealth country are applied to the other in the absence of a treaty. Malaysia, Singapore and Brunei Darussalam are declared under the Extradition (Commonwealth Countries) Regulations to be extradition countries for the purposes of the Extradition Act. Australia’s extradition laws were applied to Malaysia and Singapore on 1 May 1967 and to Brunei Darussalam on 3 May 1985.
Australia has a non-treaty extradition arrangement with Thailand. The Extradition Act was applied to Thailand in the absence of a treaty on 6 December 1995.
Australia has a modern bilateral extradition treaty with Indonesia. The Treaty was signed at Jakarta on 22 April 1992 and came into force on 21 January 1995.
Australia also has a modern extradition treaty with the Philippines. That Treaty was signed at Manila on 7 March 1988 and came into force on 18 January 1991.
Australia has no bilateral extradition relationship with Vietnam.
Western Pacific Region
Most of the countries in the Western Pacific region are Commonwealth countries. Australia’s extradition arrangements with those countries are governed by the London Scheme and the Extradition Act applies to such countries under the Extradition (Commonwealth Countries) Regulations on a non-treaty basis. Examples of Commonwealth countries with such extradition arrangements include the Cook Islands, Western Samoa, Tonga, Vanuatu, Kiribati, Nauru, Papua New Guinea and the Solomon Islands. Australian extradition laws were applied to Western Samoa, Kiribati, Nauru, the Solomon Islands and Tonga on 17 December 1970, to Papua New Guinea on 28 November 1975, to Vanuatu on 3 May 1985 and to the Cook Islands on 27 May 1992.
Australia has a non-treaty extradition arrangement with Fiji and the Marshall Islands. Previously, the Extradition Act applied to Fiji under the London Scheme. Some time after Fiji left the Commonwealth, the Extradition Act was applied to the Republic of Fiji on 23 May 1991 under the Extradition (Republic of Fiji) Regulations. Australia’s extradition laws were applied to the Marshall Islands in the absence of a treaty on 30 June 1993.
Australia has a modern extradition treaty with France which entered into force on 23 November 1989. That Treaty facilitates extradition between Australia and French territories in the Pacific, such as French Polynesia and New Caledonia.
All extradition treaties and arrangements between Australia and other countries operate subject to Australia’s Extradition Act 1988. The Extradition Act creates a mechanism for the processing of extradition requests in Australia. The Act sets out the matters that Australian courts have to consider before ruling on a person’s eligibility for extradition. The Act also sets out the matters that the Attorney-General must consider in deciding whether a person is to be surrendered to another country. The Act contains all the internationally-accepted human rights safeguards that are now a part of modern extradition. …
On 26 June 1996, the Attorney-General, Mr Daryl Williams, made the following remarks in the course of the second reading speech to the House of Representatives for the Mutual Assistance in Criminal Matters Legislation Amendment Bill (House of Representatives, Debates, 26 June 1996, p 2831):
Mr Deputy Speaker, this bill makes significant amendments to the Mutual Assistance in Criminal Matters Act 1987. The act provides the statutory basis for Australia to negotiate, and give effect to, mutual assistance in criminal matters treaties, or other arrangements, with other countries relating to the provision of assistance in the investigation and prosecution of crime and the proceeds of crime. The act has been in force since 1 August 1988. Since that time 17 treaties which have been negotiated pursuant to the act have come into force. Another three treaties have been signed and are awaiting entry into force.
Australia was one of the first common law countries to introduce such legislation. A considerable number of requests for mutual assistance in criminal matters has been handled under the act. This has been of enormous benefit to law enforcement and the conduct of criminal cases in Australia and other countries. This form of assistance is absolutely necessary for Australia to counter transnational crime, including drug trafficking and other forms of organised crime. The granting of mutual assistance is one of the most effective ways in which countries can help one another to meet these new threats … Part 1 of Schedule 1, Object and application of the act
Part 1 of schedule 1 makes clear that the act is to be the exclusive channel for the execution of requests to Australia that would require Australia to exercise coercive powers, such as the issue of a summons to a person to attend a court to give evidence. It also confirms that the act is the exclusive channel for Australia to make mutual assistance requests to other countries to exercise coercive powers on our behalf. As reciprocity is an essential consideration in mutual assistance it is necessary that requests requiring coercive powers be handled by a central authority. However it is important to preserve existing channels for requesting and providing assistance which does not require the exercise of coercive powers, and the act recognises this. …
Amended section 5 will also contain a separate paragraph providing that the objects of the act are to facilitate the making of requests by Australia for the provision of assistance to it. This paragraph will not list any particular types of assistance, and the Attorney-General retains the power to make any type of request to a foreign country. Whether the requested foreign country will grant a request will depend on the domestic law of that country. Whether Australia would make a request to a country with which it does not have a treaty or other form of mutual assistance relationship will depend on an assessment in relation to the particular case at the particular time. One of the factors that would be taken into account in deciding this would be the expectation which would be raised in the requested country of reciprocal assistance by Australia. …
Section 7 currently requires the act to have been applied by regulation to a particular foreign country before assistance can be requested or provided. The amendment to section 7 represents a significant shift in Australia’s approach to mutual assistance in criminal matters, by providing for `passive’ application of the act to all foreign countries. This will enable assistance to be provided and requested much more expeditiously than previously, and will remove any extraneous impediments to the need for assistance to be urgently requested or provided. Part 2 of Schedule 1, Requests for assistance
The amendment in part 2 of the bill to section 10 of the act confirms the exclusivity of the act in relation to the provision and requesting of assistance which involves coercive powers. The amendment provides that only the Attorney-General may make requests under the act. All requests which are made under the act involve the foreign country in the exercise of coercive powers, with the technical exception of requests under section 16 for a foreign country to temporarily transfer a foreign prisoner to Australia to give evidence or assist an investigation—a type of assistance which should only be sought by the Attorney-General.
One effect of this amendment to section 10 is that a letter of request issued by any Australian court, including federal, state and territory courts, to a foreign court for evidence to be taken in the foreign country for use in a criminal matter in Australia should now be forwarded to the Attorney-General’s Department for dispatch via established mutual assistance channels. Proposed subclause 11(4) provides that incoming letters of request, or ‘letters rogatory’, which foreign courts might send direct to any Australian court, including federal, state and territory courts, seeking evidence to be taken in a criminal matter in the foreign country should be sent by the receiving Australian court to the Attorney-General. All incoming ‘take evidence’ requests, including ‘court to court’ requests, should be executed in a consistent manner pursuant to the Attorney-General’s power under section 13 of the act to authorise a magistrate to take evidence on behalf of the foreign country… Part 3 of Schedule 1, Refusal of assistance
Significant amendments are made to the Attorney-General’s power of refusal of requests for assistance. The death penalty has been abolished in all Australian jurisdictions since 1984, and Australia is party to the Second Optional Protocol to the International Covenant on Civil and Political Rights which commits it to an anti-death penalty position at the international level.
The insertion of new subclauses 8(1A) and 8(1B) into the act put it beyond any doubt that the granting of mutual assistance in criminal matters must take into account the possibility of imposition of the death penalty by the country which has requested the assistance.
Subclause 8(1A) provides that where the foreign country requests assistance in relation to charges against a person, or a conviction against a person, which may lead to the imposition of the death penalty, assistance must be refused unless the Attorney-General is of the opinion that the special circumstances of the case require otherwise. The discretion for the Attorney-General to take into account special circumstances of the case would allow, for example, assistance to be granted where the assistance may be of an exculpatory nature and may assist the defendant in the foreign country to meet the charges.
Where charges have not been laid in the foreign country but where the Attorney-General believes the provision of assistance could result in the imposition of the death penalty, the Attorney-General will have a wider discretion under proposed subclause 8(1B) to grant assistance after taking into account the interests of international criminal cooperation and the circumstances of the case.
On 19 June 1996, the Minister Assisting the Prime Minister for the Sydney 2000 Games, Mr Warrick Smith, in the course of the second reading speech to the House of Representatives for the Australian Sport Drug Agency Amendment Bill 1996 noted (House of Representatives, Debates, 19 June 1996, p 2357 at 2358):
The government has also entered into anti-doping agreements with other countries, including the United Kingdom, Canada, France, New Zealand and Norway. This multilateral agreement will lead to the establishment of an international benchmark for testing programs utilising an internationally recognised system of accreditation and certification. Australia was also the first non-European country to accede to the Council of Europe Anti-Doping Convention, which aims to harmonise anti-doping programs between countries. Most significantly, following a request from the Chinese anti-doping authorities, the Australian Sports Drug Agency is assisting China to establish its own sports drug agency.
On 31 October 1996, the following statement was made on behalf of the Australian delegation to the Sixth Committee of the Fifty-First session of the United Nations General Assembly. The statement addressed the establishment of an international criminal court.
The twelve months that have passed since this Committee last discussed the important issue before us today have regrettably seen no relief from news of atrocities being committed in various parts of the world. In this intervening period we have witnessed - in a variety of situations - yet more examples of the types of horrific events in the former Yugoslavia and Rwanda that first galvanised the international community into making a serious commitment to use the opportunity presented by the end of the Cold War to work towards the establishment of an International Criminal Court. The commission of these heinous crimes continues to outrage public opinion and to increase the sense of urgency for the Court's establishment. Almost fifty- years after an International Criminal Court was first mooted as a vital step in the international community's efforts to prevent and punish these crimes, we are now closer than ever before to fulfilling these expectations. The criminal court negotiations are an important sign of the international community's commitment to deal with serious international crimes, and we therefore carry with us today the weight of responsibility - as we face what is a crucial stage in our deliberations on the International Criminal Court - not to disappoint the hopes of many that effective international justice will become a reality.
… The Australian delegation welcomes the Report of the Preparatory Committee recording the outcome of the Committee's valuable discussions and negotiations. …
Without commenting in detail on the various substantive issues addressed by the Preparatory Committee, we wish to make a few brief points about some of the key issues. My delegation believes that the Court should be an independent body that is closely linked to the United Nations. In this context, we are of the firm view that funding for the Court should be provided from the Regular Budget of the United Nations. Several precedents exist for regular budget funding of bodies established by multilateral treaties, and the characterisation of the crimes under the Court's jurisdiction as "the most serious crimes of international concern" indicates that these crimes are indeed the universal concern of the entire international community - not just the concern of States parties to the Statute - and would certainly justify Regular Budget funding for the Court. The proposed linkage with the Security Council is another compelling reason for funding to be provided through the Regular Budget.
A great deal of progress has been made on the question of the scope of the Court's jurisdiction and the definition of crimes within the jurisdiction of the Court. My delegation welcomes the consensus that has emerged in favour of the Court's jurisdiction being limited to only the most serious crimes of international concern. We believe the Court must have jurisdiction over events arising out of conflicts of both an international and internal nature, and that the commission of crimes against humanity does not require any nexus with armed conflict at all. The inherent jurisdiction of the court - which in and of itself in no way interferes with the sovereignty of States (because it simply indicates how the Court's jurisdiction is triggered for those States which are already party to the Statute) - is an important aspect of the Court's jurisdiction. My delegation strongly supports an inherent jurisdiction in respect of genocide, and also supports further consideration of the Court's inherent jurisdiction being extended at a minimum to crimes against humanity.
The principle of complementarity is one of the issues most fundamental to the establishment of an International Criminal Court. My delegation supports the adoption of safeguards which would give appropriate protection to the sovereignty of States parties, and agrees with the view that the Court's jurisdiction should not take precedence over national jurisdictions where they are ready and able to deal effectively with alleged crimes. The Court must, however, be in a position to determine whether a national jurisdiction is ready and able to deal effectively with alleged crimes by way of investigation and/or prosecution or whether it has already done so. If the Court does not have the power to make such a determination, sham investigations and proceedings at the national level would remain unchallenged, hence undermining the whole purpose of the Court.
My delegation considers the power of the Security Council to refer matters to the International Criminal Court to be a fundamental jurisdictional foundation of the Court, as we believe that one of the Court's key purposes would be to obviate the need for the Security Council to set up ad hoc tribunals. At the same time, however, our concern to see the creation of a Court that is independent and free from the political influence of other United Nations organs leads us to believe that the question of the relationship between the Court and the Security Council requires a solution that would preserve, to the greatest extent possible, the independence of the Court.
… The Committee's success in discharging its mandate can be attributed to a range of factors, not least of which was the commitment of delegations to engage in detailed and meaningful discussion of the critical issues and to draft texts in order to further the work of the Committee. With this achievement behind us, my delegation believes we are in a position to move to the next stage of our negotiations with great confidence and optimism. It is vital that we now move to convene a Diplomatic Conference if we are to avoid loss of momentum in the Criminal Court process. The prospect of open-ended, ongoing preparatory meetings would make it especially difficult for smaller States (and even countries like Australia) to participate actively in the negotiations and, therefore, would merely serve to undermine the universality of the Court. …
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URL: http://www.austlii.edu.au/au/journals/AUYrBkIntLaw/1997/9.html
