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Australian Year Book of International Law |
On 24 November 1997, in the Senate, the Minister representing the Minister for Foreign Affairs, Senator Robert Hill, answered a question on notice from Senator Robert Brown. Extracts of the question and answer follow (Senate, Debates, 24 November 1997, p 9331):
Senator Brown—…(7)(a) What powers does the Australian Government have to control overseas activities that may breach Australian environmental standards; (b) how have they been applied in this case; and (c) who was consulted…
Senator Hill—…(7)(a) The Australian Government has a limited ability to control the overseas activities of Australian companies that may breach Australian environmental standards.
If the proposed overseas activities involved action by an Australian agency covered by the Environment Protection (Impact of Proposals) Act 1974, then the provisions of that Act would apply. The Australian Government may, if necessary, refuse assistance, including the use of aid funds.
Otherwise, while under international law Australia has jurisdiction to legislate extraterritorially in a range of circumstances, it does not have the power directly to enforce its laws within the jurisdiction of other states. The usual absence of enforcement power is a fundamental reason why jurisdiction to legislate for Australian companies overseas is not often used.
Equally important, regulation of the activities of Australian companies overseas is also governed by the notion of “international comity”, which is the general mutual respect and good behaviour which friendly states owe to each other. This is a self imposed restraint on states to avoid abuse of their rights and powers. It would be inappropriate for Australia to attempt to impose requirements on Australian companies operating in another country’s jurisdiction where those requirements may conflict with the laws of that country. For example, Australian environmental standards may be ill-suited to another country’s circumstances and could be in conflict with its laws.
On 23 June 1997, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Robert McClelland concerning the East Timor. In the course of his response the Minister noted (House of Representatives, Debates, 23 June 1997, p 6090):
…I would note that the key aspects of the Government’s policy towards East Timor are:• de jure recognition of Indonesian sovereignty over the territory;
• disapproval of the way Indonesia incorporated East Timor into Indonesia;
• support for international efforts to find a just and internationally acceptable resolution of the East Timor issue; and
• doing what we can to protect the human rights and promote the welfare of the East Timorese people…
On 2 December 1997, in the Senate, Senator Ian Campbell provided the government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade on the implications of the Australia’s service exports to Indonesia and Hong Kong. The response included the following passages on the sovereignty of Hong Kong (Senate, Debates, 2 December 1997, p 10099):
The Australian Government's approach to Hong Kong's transfer of sovereignty from Britain to China on 1 July 1997 is based on the Australia's extensive interests in Hong Kong - interests that extend beyond the historic transfer of sovereignty on 1 July 1997: over 30,000 Australians live there; and in 1996, Hong Kong was Australia's ninth-largest export market ($A3.0 billion). It is also the fourth-largest source of foreign investment in Australia, and Australia's sixth-largest source of overseas students. Australia's long-term consular, commercial and regional interests will be best served by the full implementation of the undertakings about Hong Kong's future made in the 1984 Sino-British Joint Declaration on the Question of Hong Kong, particularly delivering the "high degree of autonomy" promised to Hong Kong in the Joint Declaration and the Basic Law, in all matters except foreign and defence affairs.
The Australian Government maintains, and will continue to maintain, close contact with the Chinese and Hong Kong authorities on Hong Kong issues that affect Australia's interests there. Following the successful transfer of sovereignty, the Government continues to underline the importance of Australia's interest, and to Hong Kong's continued stability and prosperity, of the maintenance of Hong Kong's free and open social and economic systems; the continuation of the rule of law; the free flow of information, labour and capital; and the rights and freedoms enjoyed by the people of Hong Kong.
Australia has taken a number of actions to support Hong Kong's retaining its economic autonomy beyond 1 July consistent with the Joint Declaration and the Basic Law. Australia has supported Hong Kong's continued participation in the WTO and APEC. Australia has concluded two economic bilateral agreements with Hong Kong: an Investment Protection and Promotion Agreement and bilateral air services agreement. China has endorsed these agreements through the Sino-British Joint Liaison Group (JLG), which ensures their continued application beyond the transfer of sovereignty. Australia has also enacted the Overseas Missions (Privileges and Immunities) Act 1995, which facilitated the establishment of Hong Kong Government economic and trade representation in Australia and its continuation beyond the transfer of sovereignty. The Government has also negotiated with China an agreement to ensure Australia's continued consular representation in Hong Kong after 1 July 1997.
On 15 July 1997, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in a media release concerning the military overthrow by Hun Sen of his coalition partner and first prime minister, Prince Ranariddh:
…The Government has welcomed the decision by ASEAN countries to postpone consideration of Cambodia’s membership of ASEAN and its intention to send a mission, to be led by the Indonesian foreign minister, to consult King Sihanouk, Prince Ranariddh and Hun Sen.Australia’s position for some years has been that we recognise states not governments. Therefore the question of recognising or not recognising Hun Sen does not arise. This position, however, in no way implies any approval of his actions or a business as usual approach. It does, however, allow the government to maintain its presence in the country and its contact with the Cambodian government…
In a media release of 28 April 1997, concerning the appointment of a new ambassador to the Federal Republic of Yugoslavia, the Minister for Foreign Affairs, Mr Alexander Downer, noted the appointment of an ambassador:
…to the Federal Republic of Yugoslavia marks the normalisation of relations between Australia and all the former Yugoslav Republics.
On 24 March 1997, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Daryl Melham concerning the International Court of Justice. Extracts of the question and answer follow (House of Representatives, Debates, 24 March 1997, p 2867):
Mr Melham—…(4) Have any states made or terminated declarations accepting the compulsory jurisdiction of the Court since the answer to question No. 1392 (Hansard, 19 October 1994, p 2431).
Mr Downer—
…(4) The states which have made declarations accepting the compulsory jurisdiction on the Court since 19 October 1994 are: Georgia (20 June 1995); Poland (25 March 1996); and Paraguay (25 September 1996). Poland's declaration replaced an earlier declaration, which was thereby terminated.
On 13 May 1997, Senator Ian Campbell incorporated the second reading speech for the International Transfer of Prisoners Bill 1997 into Hansard (Senate, Debates, 13 May 1997, p 3228). On 26 November 1997 in the Senate Senator Nicholas Minchin presented the Government’s response to the report of the Foreign Affairs, Defence and Trade Reference Committee entitled “Helping Australians Abroad: A review of the Australian Government’s Consular Services”. An extract of the report and response concerning the international transfer of prisoners follows (Senate, Debates, 26 November 1997, p 9521):
…Recommendation 18: The Committee recommends that the Attorney-General seek the co-operation of the States and Territories to implement the arrangements necessary for the introduction of the international prisoner transfer scheme.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 on legislation for this purpose and will continue to do so. The Commonwealth has enacted the International Transfer of Prisoners Act 1997, which received Royal Assent on 18 June 1997.
With the exception of the Northern Territory, all State and Territory Attorneys-General endorsed model complementary State/Territory legislation in October 1996. The Department’s most recent advice from the States and Territories indicates that the Australian Capital Territory, New South Wales, Queensland, South Australia and Tasmania are hoping to introduce legislation before the end of 1997 and Victoria hopes to do so in 1998. There is at present no indication of Western Australia’s intentions in this regard. The Northern Territory is still considering whether to participate in the scheme.
…Government Response: Agreed. Commonwealth legislation providing arrangements for international prisoner transfer has already been enacted. The States and Territories (except the Northern Territory) have agreed in principle to enact complementary legislation and are preparing to do so.
On 1 December 1997, in the Senate, Senator Helen Coonan made the following comments in the course of presenting the twelfth report of the Joint Standing Committee on Treaties entitled Australia-Indonesia Maritime Delimitation Treaty (Senate, Debates, 1 December 1997, p 9893):
Australia and Indonesia have conducted a series of maritime boundary delimitation negotiations since the late 1960s that have resulted in three treaties being concluded.It is important to note that the treaties negotiated to date have treated the seabed differently from the water column. Primarily, this is because recognition of continental shelf jurisdiction in international law predated the recognition of the Exclusive Economic Zone (EEZ) jurisdiction. That is to say, the concept of the EEZ was not known to international law at the time of the negotiation of the 1971 and 1972 seabed treaties.
Furthermore, the principle of natural prolongation that suggested using features such as the Timor Trough in maritime boundary delimitation had been progressively eroded and ultimately rejected in a series of International Court of Justice cases.
The Australia-Indonesia Maritime Delimination Treaty finalises maritime boundaries between Australia and Indonesia in those areas which were not covered by existing treaties.
The three boundaries finalised by the Treaty are:
• The exclusive economic zone (EEZ) and seabed boundary between Christmas Island and Java.
• The western extension of the seabed boundary between continental Australia and Indonesia.
• The EEZ boundary between continental Australia and Indonesia.
On 18 June 1997, in the House of Representatives, the Parliamentary Secretary to the Minister for Transport and Regional Development, Mr Michael Ronaldson, made the following comments in the course of the second reading speech for the Carriage of Goods By Sea Amendment Bill 1997 (House of Representatives, Debates, 18 June 1997, p 5554):
…The purpose of this bill is to implement a package of enhancements to Australia’s marine cargo liability regime. The Carriage of Goods by Sea Act 1991, which is often referred to as the COGSA, deals with liability for loss or damage to sea cargoes. The package is the result of extensive negotiations with, and agreement by all affected interests — shippers, cargo owners, carriers, shipowners, marine insurers and maritime lawyers.…The COGSA operates by applying as domestic law in Australia an international convention and several protocols collectively known as the amended Hague Rules. However, the COGSA also provides for the possible future implementation of an alternative international convention commonly known as the Hamburg Rules.
The bill I have introduced to amend the COGSA deals directly with two of the seven items in the industry package — the Hamburg Rules trigger now contained in the COGSA, and arbitration in Australia…
The Hamburg Rules trigger The Hamburg Rules, although a more recent convention than the amended Hague Rules, have attracted very little support from major trading nations, including Australia’s major trading partners. The Hamburg Rules trigger was first due to operate on 1 November 1994. Prior to that date there had been vigorous debate between shipper interests proposing the implementation of the Hamburg Rules and carrier interests opposing this. In October 1994, both Houses of Parliament passed resolutions to defer consideration of the question of acceptance or repeal of the Hamburg Rules for another three years.Following this resolution an industry working group developed a compromise solution in which carriers conceded significant extensions in the protection offered to shippers in return for the removal of the automatic trigger for the Hamburg Rules. I would like to congratulate the industry interests concerned on the spirit in which this process was conducted. This bill implements that compromise solution developed by industry.
At present, the automatic trigger provision will operate again on 20 October 1997 to bring the Hamburg Rules into force in the COGSA, and action is therefore needed to prevent this. This bill will remove that trigger and the requirement for a resolution of both Houses of Parliament. In its place, provisions are inserted for the Minister to conduct a review from time to time of the desirability of bringing the Hamburg Rules into force in Australia…
On 17 June 1997, in the House of Representatives, the Minister representing the Minister for Resources and Energy, Mr John Anderson, provided the following information concerning Australian policy on foreign fishing when answering a question on notice from Mr Graeme Campbell concerning Japanese Fishing Trawlers in Australian waters (House of Representatives, Debates, 17 June 1997, p 5543):
Mr Anderson—Shipment of nuclear waste…(2) Australia's current policy regarding foreign fishing is linked to its international rights and obligations under the United Nations Law of the Sea Convention (the Convention) and the need to ensure responsible conservation and management of fish stocks in the Australian fishing zone.
Under the Convention Australia will consider applications for foreign fishing vessel access to fisheries stocks which are not fully utilised. Where foreign fishing operations are permitted the main objective is to maximise genuine, tangible and assessable benefits to Australia.
Preference is always given to fishing operations which are owned and conducted by Australians and which use Australian vessels.
…Australia is a party to the Multilateral Treaty on Fisheries, which is a treaty on fisheries access between the Governments of certain Pacific Island States and the Government of the United States of America. The Treaty only provides access to a limited area in the north east of the Coral Sea and United States vessels have yet to fish in our fishing zone under the Treaty. It has been in force since 1987.
On 4 March 1997, in the Senate, the Minister representing the Minister for Foreign Affairs and Trade, Senator Robert Hill, answered a question on notice from Senator Diane Margetts concerning the shipment of high level radioactive waste. An extract of the question and answer follow (Senate, Debates, 4 March 1997, p 1240):
Senator Margetts—With reference to the shipment of 40 canisters of reprocessed nuclear waste which will be travelling from France through the South Pacific and the Tasman Sea on the Pacific Teal:
…(7)(b) does Australia disagree with the positions taken by [the countries which oppose the shipments]: if so, on what basis.
(8)(a) What is Australia’s position on the waste shipments; (b) could the Government legally oppose waste shipments from Japan; and (c) is the Government compromised in its position on waste shipments due to the contracts, bilateral agreements and approvals associated with selling uranium to Japan…
Senator Hill—
…(7)(b) The Australian Government believes it is important that the shipment be made in accordance with the appropriate, internationally-accepted safety standards. The Government accepts the right of freedom of navigation through the exclusive economic zones of states, in accordance with the United Nations Convention on the Law of the Sea.
(8) …Australia accepts that international law grants states a right of freedom of navigation of their ships on the high seas or through states' exclusive economic zones, and the right of innocent passage through the territorial sea of coastal states. We also accept Japan's right to make sovereign choices about its energy mix, just as Australia expects to be left to decide how to meet its own power generation requirements. The transport by sea of HLW is a function of the industrial and contractual arrangements established under Japan's nuclear power program; it is also consistent with the widely-accepted principle that countries look after their own waste material.
(b) The Government would not have grounds for legally opposing the shipment of HLW to Japan. The United Nations Convention on the Law of the Sea, to which Australia is party, grants states a right of freedom of navigation for their ships on the high seas or through other states' exclusive economic zones. The Convention also grants states the right of innocent passage through the territorial sea of coastal states, with ships carrying nuclear material being allowed passage provided they "carry documents and observe special precautionary measures established for such ships by international agreements".
(c) No.
On 27 October 1997, in the Senate, Senator Ian Campbell provided the Government response to the report of the Joint Committee on Foreign Affairs, Defence and Trade entitled Australia's Relations with South Africa. The response contained the following passage concerning the indebtedness of poor countries (Senate, Debates, 27 October 1997, p 8081):
The Australian Government has actively supported international debt relief for heavily indebted poor developing countries which have demonstrated a willingness to undertake the necessary economic reforms, but whose social and economic development is constrained by unsustainable levels of debt. In particular, the Government supports the Heavily Indebted Poor Country Debt Initiative, which involves cooperation between the World Bank, the International Monetary Fund and the Paris Club to alleviate the debt burden of such countries in Southern Africa and elsewhere.
On 2 December 1997, in the Senate, Senator Ian Campbell provided the government response to the Joint Standing Committee on Foreign Affairs, Defence and Trade on the implications of the Australia’s service exports to Indonesia and Hong Kong. The response included the following passages on the negotiation on double taxation treaties (Senate, Debates, 2 December 1997, p 10099):
…The ATO and Treasury are currently reviewing priorities for Australia’s tax treaty program and as part of that review are considering how the lower dividend withholding tax limit can most effectively be extended to treaties with countries in which Australian companies are active. It is intended that priority be given to the renegotiation of treaties with those countries in which the level of Australian investment is highest…The order of priority for treaty renegotiation will also take account of the willingness of treaty partners … to renegotiate, and the nature of any concessions that might be sought by them in renegotiation.
On 19th November 1997, in the Senate, Senator Nicholas Minchin tabled a statement by the Prime Minister concerning his attendance at the Commonwealth Heads of Government Meeting. Extracts of the statement concerning Edinburgh Commonwealth Economic Declaration follow (Senate, Debates, 19 November 1997, p 9143):
…The outcome of CHOGM’s discussions on its economic theme was the Edinburgh Commonwealth Economic Declaration, Promoting Shared Prosperity. The declaration expresses the economic principles shared by Commonwealth members and is the companion to the 1991 Harare Declaration, which set out the core political and human rights principles of the Commonwealth.The declaration is significant in the degree of common ground reached among developed and developing members on the need for continuing trade liberalisation, the importance of encouraging investment flows — especially through sound macroeconomic policies and financial systems, strong regulatory and supervisory frameworks and good governance — and the crucial role of the private sector in achieving economic growth.
While this good outcome reflected wide support for trade liberalisation, the meeting showed we have some way to go in winning universal acceptance of the value of a new round of global trade negotiations. As I said in my address to the Business Forum, Australia believes a new global trade round should be launched by the end of the century. There is support for a new round among other Commonwealth members — but it is not unanimous.
On 26 June 1997, the Minister for Foreign Affairs, Mr Alexander Downer, signed a Joint declaration on relations between the European Union and Australia. In a media release of the same day he noted:
The Joint Declaration reconfirms our mutual commitment to continue developing the new, more positive relationship Australia and the EU have been building over the last few years. It provides a strong basis for taking that relationship into the next century. It outlines our objectives for bilateral cooperation across a wide range of areas including environment, employment, education and training, refugee and asylum matters, agriculture, scientific and cultural cooperation and consumer and competition policies. It underlines our commitment to continue working together in international fora to support common goals such as further multilateral trade liberalisation and the international promotion and protection of human rights. It also formalises arrangements for Ministerial and officials-level dialogue on key bilateral and international political, economic and trade issues.
On 10 November 1997, in the Senate, the Minister representing the Treasurer, Senator Rod Kemp, answered a question on notice from Senator Diane Margetts. Extracts of the question and answer follow:
Senator Margetts—(1) Will the following regulatory regimes on investment be supported under the MAI: (a) the Foreign Investment Review Board; (b) Australian laws limiting overseas investment or cross-ownership, such as media cross-ownership laws; (c) laws regulating investments themselves, such as the regulations requiring a certain level of Australian content in television; and (d) any manufacturing regime requiring a minimum Australian content or requiring reinvestment of profits in this country.
(2) If they are not explicitly supported, are any of the regulatory regimes in (1) likely to be challenged under the MAI.
(3) What provisions will the Government demand to ensure that nations can impose environmental and labour standards on investment.
…(6) What consideration has the Government given, and what position has or will it take in negotiation, in relation to the impact of the MAI on measures such as the sanctions against Burma, or against companies investing in Burma.
(7) What consideration has the Government given, and what position has or will it take in negotiation, in relation to the impact of the MAI on measures such as the United States’ Corrupt Practices Act, and the United Nations’ and Australia’s own legal or regulatory attempts to govern corrupt practices by companies involved in bribery of foreign officials to facilitate overseas foreign investment…
Senator Kemp—
The Treasurer has provided the following answer to the honourable senator’s question:
(1) and (2) The Government re-affirmed Australia’s continuing support for an MAI at the May 1997 OECD Ministerial Council Meeting. The Government endorses the objectives of an MAI and looks forward to the development of a MAI providing a strong and comprehensive framework for international investment, thus enhancing the role international capital flows play in contributing to improving economic well-being.
Much of the detail of the proposed treaty remains to be negotiated. It is important to note that the MAI will provide scope for country positions to be covered by reservations. Australia’s approach to the MAI negotiations is to seek to ensure that Australia can maintain its current policy stance in relation to the coverage of the MAI, including foreign investment policy. Any international treaty that Australia joins also needs to take account of the limitations imposed by Australia’s Commonwealth/State arrangements as provided for under the constitution.
(3)…Australia supports the development of internationally accepted core labour standards. The International Labour Organisation (ILO) is the appropriate forum for pursuing such matters, a view shared by many other OECD countries. The Government will continue to work multilaterally through the ILO and the United Nations to encourage adherence to and observance of core labour standards. The Government does not see value in including matters relating to the development and enforcement of labour standards in international instruments governing the conduct of trade and investment activities, including the MAI.
On the MAI and environmental protection, the Government’s view is that the MAI must be consistent with the basic principle of the need for investment liberalisation to be mutually supportive of environment protection in order to promote ecologically sustainable development. The MAI has the potential to promote international ecologically sustainable development through the transfer of technology and environmental management expertise and more efficient international allocation of resources. The negotiations are at an early stage on this issue and a consultation process with non governmental organisations regarding the MAI has been put in place by the OECD. Australia supports suitable non-mandatory provisions in the MAI on codes of practice in the environment protection area. It is important that the MAI not prevent signatories from continuing to work together in other forums to promote environmental, or other important public policy interests…
(6) The Government will give serious consideration to acceding to it…
On 13 October 1997, a statement concerning the Charter of the United Nations and the strengthening of the role of the organisation was presented on behalf of the Australian delegation to the Sixth Committee of the fifty-second United Nations General Assembly. An extract of the statement concerning sanction implementation follows:
Australia has been closely involved in the issue of the implementation of the provisions of the Charter related to the assistance to third States affected by the application of sanctions under Chapter VII. Although we have presented our views on this issue on previous occasions, we wish to do so again because we believe that the concern of some States that they are shouldering an inequitable share of the burden of individual sanctions regimes is one of considerable importance which warrants careful examination. As sanctions are imposed by the international community as part of the maintenance of international peace and security for the benefit of all, we share the view that member States must look seriously at ways to minimise the adverse impacts of sanctions on specially affected States.To this end, Australia welcomes the Report of the Secretary-General on the Implementation of the provisions of the Charter related to assistance to third States affected by the application of sanctions (A/52/308). The Report outlines a number of important developments which my delegation supports. These include the reaffirmation of Secretariat arrangements introduced in 1996 for the provision of better information and early assessment for the Security Council and its organs about the actual or potential effects on third States invoking Article 50 of the Charter, the development of a methodology for assessing the consequences actually incurred by third states as a result of the implementation of preventative or enforcement measures, and the coordination of information about international assistance available to third States. We particularly welcome the enhanced cooperation and coordination amongst relevant departments of the secretariat and consider that the development of experience within the secretariat will assist the Security Council to perform its work more efficiently, and will, moreover, assist third States affected by sanctions.
My delegation continues to harbour reservations about some of the suggestions that were made in the last meeting of the Special committee, such as the proposal by some States that, upon the imposition of sanctions, the security council should establish a funding mechanism financed from assessed contributions and supplemented by voluntary contributions to assist affected third States. In light of the difficult financial circumstances facing the United Nations, we have serious reservations about the viability and desirability of such proposals.
On 19 February 1997, the Minister for Trade, Mr Tim Fischer, addressed the Melbourne Business School. Extracts of his speech concerning the WTO
Information Technology Agreement and the WTO Telecommunications Agreement follow:
The Information Technology AgreementAt the WTO Singapore Ministerial Meeting last December we reached agreement to negotiate a rules-based Information Technology Agreement. It will cover at least 90 per cent of world trade. Already, nearly thirty economies, including our key regional trading partners, have agreed to reduce tariffs to zero on a wide range of information technology and telecommunications products by 2000.
The ITA will shape the Australian information technology industry well into the twenty-first century. It will give business duty-free access to all of the major information technology markets. It will also give Australia an additional incentive to innovate and to compete.
The ITA is an interesting example of what can be done when business forms a clear strategy and sells it to government. International business was the driving force for the Agreement from the start. It did much of the conceptual work, and it demonstrated that the proposal was feasible. Governments then took the idea up, and it was concluded in record time because much of the preliminary work had been done.
The WTO Telecommunications Agreement
Telecommunications are the backbone of modern business. I therefore welcome the recent successful outcome of the negotiations on basic telecommunications in the World Trade Organisation. Australia is a leader in telecommunications reform. Australian firms are very competitive in the provision of services. The agreement will underpin further growth in the telecommunications services trade. This will lead to more opportunities and jobs in the sector.
Australia did not have to make any policy changes as part of our undertakings for this agreement, and liberalisation in many of the key markets will take place soon after the implementation of domestic reforms initiated by the Minister for Communications and the Arts, Senator Richard Alston.
On 10 April 1997, a statement concerning the violation of human rights was delivered on behalf of the Australian delegation to the fifty-third session of the Commission on Human Rights. An extract from the statement follows:
…Australia takes the view that the improvement of human rights observance is ultimately the responsibility of every country and that action at the National level is the most effective means to achieve progress.
On 30 June 1997, the Prime Minister, Mr John Howard made the following comment concerning the promotion on human rights in the course of an address to a dinner hosted by the Foreign Policy Association, New York:
…Against this background, may I say, that the most effective way of promoting respect for human rights and freedoms in the region will be in the context of broad and active bilateral relationships and through dialogue. We are not naive or starry-eyed, but we believe that a cooperative bilateral approach dealing with specific human rights issues will produce more results than generalised public hectoring or lecturing and confrontation…
On 18 November 1997, a statement concerning human rights was delivered on behalf of the Australian delegation to the Third Committee of the fifty-second United Nations General Assembly. Extracts of the statement follow:
…The Universal Declaration is the cornerstone of the international human rights system; the foundation on which the two international covenants, and other global human rights instruments, have been built. The universality and continuing validity of the declaration are reaffirmed in the Declaration and program of action adopted in 1993 at the Vienna world conference on human rights, attended by 171 countries. The declaration establishes internationally recognised human rights standards applicable to all persons without qualification. It proclaims universal and fundamental freedoms which transcend national, religious and ideological factors, and reinforces the universal rights of people contained in articles 55 and 56 of the United Nations charter, by which all member states of the United Nations are bound.…While it is possible to point to substantial progress over the past 50 years in the field of human rights, there is no escaping the sad fact that millions of people all over the world are still the victims of human rights abuse.
Australia takes the view that the improvement of human rights observance is Ultimately the responsibility of every country and that effective action at the national level is critical to the achievement of real progress. international co-operation and, where necessary, scrutiny nonetheless play an important part in encouraging states to implement fully their obligations under the UN charter and international human rights instruments.
On 6 February 1997, in the House of Representatives, the Prime Minister, Mr John Howard, answered a question without notice from Dr Brendan Nelson. Text of the question and answer follow (House of Representatives, Debates, 6 February 1997, p 340):
Dr Nelson—My question is addressed to the Prime Minister. Could the Prime Minister outline to the parliament the nature and terms of the human rights clause proposed to be included in the framework trade agreement with the European Union? Would the Prime Minister also advise the House of the basis of the Government’s refusal to accept such a clause and its implications, if any, for Australia’s trade relations with the EU and any other region?
Mr Howard—
May I say in reply to the honourable member for Bradfield that the difference of view between Australia and the European Union on this issue is not a dispute over Australia’s commitment to human rights. Australia’s commitment to human rights is unequivocal and our record is second to none. The issue at stake in this dispute is whether or not Australia should sign a treaty which clearly links trade with human rights and which, if this clause were included, would allow either party to suspend the agreement or terminate it unilaterally on the basis of undefined criteria.
The European Union’s draft framework trade and cooperation agreement has as its first operative article respect for democratic principles and human rights. The draft identifies these as the basis and an essential element of the agreement and also has non-fulfilment provisions.
The government’s position is that the EU proposals are quite inappropriate in a treaty covering trade. They are unacceptable to Australia and ought to be unacceptable to any country that has the human rights standing of Australia. We have proposed the inclusion of our common objectives on human rights with the European Union in a political declaration. The government also considered that the draft agreement in its current form would not protect or advance the interests of Australia’s business community, which of course is one of the main aims for such an agreement. The draft did not offer Australia the progress it sought on agricultural trade and in energy. If the opposition is arguing that we should have signed the agreement in the form desired by the European Union, it would have sold Australia and the business community of our country short…
On 28 August 1997, the Minister for Foreign Affairs, Mr Alexander Downer, and the Minister for Trade, Mr Tim Fischer, released Australia’s first White Paper on Foreign and Trade Policy. The following is an extract from the paper, entitled In the National Interest, outlining the Government’s approach to human rights. The full text of the White Paper is available at <http://www.dfat.gov.au/ini/wp.html> .
…The objective of human rights policy should be to make a practical difference, not to posture.The Government views human rights as an inseparable part of Australia’s overall foreign policy approach, both because the treatment of human beings is a matter of concern to Australians and because promoting and protecting human rights underpins Australia’s broader security and economic interests. The Government’s human rights policies are based on the universality of fundamental human rights — civil, political, economic, social and cultural.
There are grounds for some confidence that human rights improve with economic growth. Respect for human rights is generally a force for stability, not least because it tends to moderate political behaviour. At the same time, the relationship between economic growth and political freedoms is a complex one and should not be reduced to a simple equating of economic growth with political liberalisation.
The Government recognises that, on occasions, support for human rights will create difficulties in Australia’s bilateral relationships, including in our commercial relations. The best means of managing such difficulties is to focus on practical measures and to address human rights concerns in the context of a sound overall bilateral relationship. Linking human rights to trade serves neither Australia’s trade nor its human rights interests.
Australia must be realistic in assessing what can and cannot be achieved in pursuing particular human rights issues. The objective of human rights policy should be to make a difference on human rights, not to posture. In promoting human rights, the Government’s priority is practical efforts that can directly improve the human rights situation on the ground. These include development cooperation programs, assisting in establishing national human rights machinery, encouraging bilateral, regional and multilateral discussion of human rights issues, and working to develop and strengthen the effectiveness of regional and international human rights institutions and instruments.
An important practical approach to improving human rights is to support the development of human rights institutions. A growing number of countries, including within the Asia Pacific region, have established national institutions with responsibility for protecting and promoting human rights and the rule of law. Australia supports these bodies through training and shared expertise, and through the informal Asia Pacific Forum of National Human Rights Institutions. The Government is funding the Australian Human Rights and Equal Opportunity Commission to provide a secretariat to the Forum.
The Government is committed to the establishment of a Centre for Democratic Institutions that would focus on fostering the development of democratic processes and institutions, especially in the Asia Pacific region. This would involve providing practical training and technical assistance relating to issues such as electoral and parliamentary procedures, as well as the rule of law. The Government also strongly supports creating an International Criminal Court. This would be an important step forward for the international community in dealing with serious offences such as genocide, war crimes and crimes against humanity.
On 19 March 1997, in the Senate, Senator Warwick Parer made the following comments in the course of debate on the Euthanasia Laws Bill 1996 (Senate, Debates, 19 March 1997, p 1887):
…As we are aware, Australia is part of the International Covenant on Civil and Political Rights, which was adopted by the United Nations General Assembly in 1966, coming into effect in 1976 and ratified by Australia in 1980. Article 6 of the covenant states:Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
While there are no specific international laws which cover euthanasia, there have been numerous inquiries into it. In fact, there have been a number of in-depth inquiries into the validity and legal implications of legislating for euthanasia…
On 3 October 1997, the Minister for Foreign Affairs, Mr Alexander Downer, made a statement to the fifty-second General Assembly of the United Nations, concerning human rights and the United Nations. Extracts of the statement follow:
…We are encouraged by and support the proposal to integrate human rights issues more fully into a range of UN activities. In our view, the linkages between respect for human rights, good governance and sustainable development are important. The fact that all four Executive Committees established by the Secretary General will take human rights issues into account in their deliberations should ensure that more effective coordination is possible across UN activities. We warmly welcome also the steps taken by the Secretary General to reform and reinvigorate the Secretariat’s organisational structure to support human rights, particularly the consolidation of the Office of the High Commissioner and the Centre for Human Rights into a single office. His appointment of the former President of Ireland, Mary Robinson, as High Commissioner for Human Rights is an excellent choice. We pledge ourselves to support her in her task.Another important recent development at the international level has been the negotiation of a draft Statute for an International Criminal Court. Australia is strongly committed to the early establishment of the Court as a major human rights objective. We urge all nations to support by consensus the proposed resolution at this General Assembly calling for the convening of a diplomatic conference in June 1998 to finalise and adopt the Statute for the Court.
As we approach the 50th Anniversary of the Universal Declaration of Human Rights, we pay tribute to the universal standards the Declaration has helped to establish. Let us never forget as well that the Declaration, along with the two International Covenants, and the whole body of treaty law and practice which has since developed, was reaffirmed by all nations at the Vienna World Conference on Human Rights in 1993.
Mr President, Australia is a nation committed to the advancement of human rights and regards human rights issues as integral to its diplomacy. However, the Australian Government does not want the important area of human rights to become an unproductive battleground or an environment for sloganeering. What we seek is results, not rhetoric, with the outcome being genuine improvements in human rights.
The real basis, for a sustained improvement in the quality of human rights, needs to be through domestic reform founded on working institutions, which guarantee participation and accountability. Reform of the institutions of civil governance must come from within. It is not something which can be imposed from without, for if there is not the political will and the people with a knowledge and a commitment to making those institutions work, then they will simply founder. Almost all nations have dark moments in their history where abuses have occurred where vigilance has failed. Abuses and corruption are most likely to disappear though when there are institutions established to bring light into this darkness.
All too often however, instead of working patiently to encourage and help others to build these institutions, countries have tended to address issues of human rights by criticism alone. There is no doubt that in the 52 years since the United Nations was established the world has witnessed many egregious and vile acts committed for the most inhumane reasons, and deserving the strongest condemnation. However, the condemnatory approach alone has only limited practical value.
We need to recognise that in practical terms protecting human rights must primarily be done at the national level. The international human rights system, which we have worked hard to build, inevitably has a broad focus and a limited ability to assist states to implement agreed standards. Regional human rights mechanisms also have a role and we should do what we can to encourage their establishment and strengthening, including in the Asia-Pacific. However, it is clear that the ability of each state effectively to protect human rights depends to a significant degree on the strength of its own institutions, including a representative legislature, an accountable executive and an independent judiciary. A vigorous civil society is another important element in creating a culture of human rights.
A critical element that has often been undervalued in the national implementation of human rights standards is the importance of effective institutions as a means to achieving good governance. It is this institution based good governance which offers a real hope of eradicating the randomness and violence which can characterise systems where there is neither popular participation nor genuine accountability.
Good governance creates the environment in which civil and political rights are respected and protected. Good governance also promotes an environment for sound economic management and sustainable use of resources to increase prosperity. These conditions are important to the protection of economic, social and cultural rights.
At the same time, the exercise of civil and political rights through participatory processes is essential to good governance because it helps ensure governmental accountability and effectiveness. The interlinkages are such that action in one area of human rights has a positive reinforcing effect on other dimensions of human rights, making all human rights indivisible. Accountability, participation and effective institutions are three fundamental principles necessary for the protection of human rights.
It is with this in mind that Australia gives priority to institution building in the human rights field. One of the most significant developments in recent years has been the spread of national institutions for the promotion of human rights. Such institutions, able to work with governments and civil society, can reflect to a significant degree the different cultures and local conditions of the societies in which they are established, while at the same time remaining consistent with international human rights standards. Moreover, it is worth noting that the General Assembly has endorsed a set of minimum standards for such institutions - the so-called Paris Principles. Despite considerable early scepticism, recent experience has been very positive and many governments and non-governmental organisations are now looking positively at independent national institutions as an important means to promote and protect human rights. The generally positive view of the work of national institutions held by most states was reflected in the adoption by consensus of Australia's resolution on this subject at this year's session of the Commission on Human Rights, with an increased number of co-sponsors.
Developing countries are showing rapidly increasing interest in establishing or strengthening existing national human rights institutions, as a constructive way to take positive action at the national level, bearing in mind national circumstances, to promote respect for human rights. Important examples of human rights institutions recently established in my part of the world that are making a difference on the ground include those in India and Indonesia. I was encouraged recently by the statement of Papua New Guinea's Prime Minister that he intends pressing ahead to establish a human rights commission in the near future.
We will also watch with expectation the development of the proposed Cambodian National Human Rights Commission. A credible and independent Human Rights Commission, along with a genuinely independent National Electoral Commission, could make an important contribution to protecting stability and promoting the observance of human rights in Cambodia in the lead up to what we strongly hope will be free, fair and credible elections in May next year.
The work of national institutions in individual countries can be strengthened through sub-regional and regional arrangements which provide a framework for exchanges of views and experiences. Australia is a strong supporter of the development of such arrangements in the Asia-Pacific region. Since an inaugural meeting in Darwin in 1996 there has been a steady consolidation of links among established and emerging Asia-Pacific human rights commissions. The 1996 meeting saw the commissions of Australia, New Zealand, Indonesia and India (later also joined by the Philippines) establish a regional network of human rights commissions, the Asia Pacific Forum of National Human Rights Institutions, with a supporting Secretariat based in and financed by Australia.
The aim of this network is to strengthen cooperation among national human rights institutions, including through information sharing, staff exchanges, technical cooperation and an annual regional meeting. It also assists other regional governments wishing to establish such institutions. The most recent regional meeting has just been held, in New Delhi. It attracted participation from the founding human rights commissions, as well as that of Sri Lanka. Other regional countries from Asia and the Pacific attended as observers, some of whom are considering the establishment of their own human rights commissions.
A most effective area of the UN's operations in this field has been the work of the Special Adviser to the High Commissioner for Human Rights on National Institutions and Regional Arrangements. The UN's work with a number of governments, including in our own region, is at an important stage. Australia was therefore pleased to provide additional financial support this year to enable the UN to continue to support national institutions.
We welcome the Secretary-General's commitment in his report on the work of the organisation to strengthening cooperation on issues of democratization and good governance. We note his comment that "the past year has seen a dramatic increase in the activities relating to the establishment of national institutions for the promotion and protection of human rights". We are heartened by this development and the responsiveness of the Secretary-General. His report clearly reflects the need I am stressing here for support for national institution building to be at the centre of United Nations human rights endeavours.
Earlier this year I announced the establishment in Australia of a Centre for Democratic Institutions. This Centre will be devoted to the provision of practical support for the consolidation and strengthening of democratic institutions in developing countries included in Australia's aid program. It exemplifies a cooperative rather than conflict approach towards promoting human rights and it will be the flagship of our good governance initiatives.
The focus of the Centre's training programs will be on electoral, parliamentary, judicial and human rights institution building and the processes by which broader society, notably the media and community groups, can contribute to democratic decision making. It will also facilitate visits and secondments of appropriate participants, such as Parliamentarians, senior administrators and other influential persons, to relevant Australian organisations.
While human rights remain at risk, our values are compromised and international stability is jeopardised. The protection of human rights to promote the dignity of the individual is too important a matter for symbolic gestures alone. It is only through the pursuit of practical and effective efforts to promote human rights that we show our real commitment to the welfare of individuals and society. And it is vital to such practical outcomes that we orient our approach to human rights to emphasise co-operation and the creation of durable structures.
On 10 December 1997, the Minister for Foreign Affairs, Mr Alexander Downer made the following comments on the Universal Declaration of Human Rights in a media release marking the fiftieth anniversary of its proclamation by the UN General Assembly:
…The Universal Declaration is the cornerstone of the international human rights system; the foundation on which the two International Covenants on civil, political, economic, social and cultural rights, and other global human rights instruments, have been built. The Declaration establishes internationally recognised human rights standards applicable to all persons without qualification. It proclaims universal and fundamental freedoms which transcend national, religious and ideological boundaries. The Secretary-General of the United Nations, Mr Kofi Annan, has called for all nations to support the reinvigoration of the international system for the promotion and protection of human rights and highlighted the objective of the High Commissioner for Human Rights to mainstream human rights into United Nations activities system-wide. The Secretary-General will have Australia's full support.
On 15 April 1997, a statement concerning human rights defenders was delivered on behalf of the Australian delegation to the fifty-third session of the Commission on Human Rights. Extracts of the statement follow:
…At its twelfth session, Australia believed that the working group should have been able to complete its work on the draft declaration on the basis of the consolidated and refined text (CRP.1) proposed by the Chairman of the working group, Professor Jan Helgesen. Australia was disappointed that this proved not to be possible. We trust that the forthcoming meeting will be the last and that the declaration will then be brought forward for adoption at the next session of CHR…
The objective of the working group is to produce a document that provides protection for human rights defenders, including national institutions, 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.
In this context, Australia welcomes, and expresses appreciation for, the efforts of Professor Helgesen in preparing a consolidated and refined text in the form of a conference room paper, as he had been requested to do by the working group at the end of its eleventh session. The text he has proposed is a compromise - and, as with all compromise texts, no one delegation can expect to be completely happy. Indeed, Australia would have preferred to see the text strengthened in a number of key areas. But Australia is willing to support the consolidated text, in a spirit of compromise and cooperation, as a fair and balanced attempt to take the interests of all delegations into account.
We note that there are four issues which remain outstanding and on which substantial progress was made during the twelfth session. Let me stress that Australia can accept the Chairman's consolidated text without change on the understanding that these four issues are satisfactorily resolved in such a way that allows human rights defenders to carry out effectively their operations in the field. In particular, there can be no derogation from existing international human rights standards, nor subjection of human rights defenders to laws or duties that limit their internationally recognised rights.
On 28 October 1997, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning China's signature of the International Covenant on Economic, Social and Cultural Rights. Extracts of the release follow:
I welcome China's signature yesterday in New York of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Covenant is a central element of the international human rights legal framework, and China's accession to it will give a significant boost to the objective of promoting universal adherence to the rights set out in the Covenant.
Next year marks the 50th Anniversary of the UN General Assembly's adoption of the Universal Declaration of Human Rights which, together with the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, comprise the International Bill of Rights - the foundation on which the international human rights legal framework has been built.
…Australia hopes that China will also consider early ratification of the International Covenant on Civil and Political Rights (ICCPR), which would complement ratification of the ICESCR and significantly strengthen international support for the International Bill of Rights.
On 17 December 1997, Australia issued a response to the views of the Human Rights Committee in Communication No. 560/1993 A v Australia. The component of the response dealing with the interpretation of Article 9.4 of the Convention follows:
…In relation to the Committee’s view that there was a breach of Article 9.4, the Australian Government, with all respect, does not consider it to be a correct interpretation of Article 9.4. The obligation on State parties is, in accordance with the actual words of Article 9.4, to provide for review of the lawfulness of detention. In the view of the Australian Government, there can be no doubt that the term ‘lawfulness’ refers to the Australian domestic legal system. There is nothing apparent in the terms of the Covenant that ‘lawful’ was intended to mean ‘lawful at international law’ or ‘not arbitrary’. Elsewhere in the Covenant where the term ‘law’ is used, it clearly refers to domestic law: see for example, Article 9.1, Article 17.2, Article 18.3 and Article 22.2. Furthermore, the use of ‘unlawful’ in Article 9.4 contrasts with the meaning and use of ‘arbitrary’ in other provisions of the Covenant: for example, in Article 17.1. Nor is there anything in the travaux préparatoires, the General Comments of the Committee, the Committee's jurisprudence under the Optional Protocol, (except for the individual opinion of Mr Fausto Pocar in Aduayom, Diasso and Dobou v Togo, CCPR/C/57/D/422/1990 to 424/1990/Rev.1 at page 8, which, however, analyses the issue in a different context and in regard to Articles 9.1 and 9.5) or the works of commentators to support the Committee's view that 'lawfulness' in Article 9.4 'is not limited to mere compliance with domestic law'. Accordingly, the Australian Government cannot accept the Committee's view that Australia has breached Article 9.4.Furthermore, the fact that a law or statement at an international, United Nations, level does not exist, only serves to demonstrate that this course of action is not one to pursue. I further believe that the reason euthanasia is not supported at any United Nations level is that the right to life is sanctioned by all United Nations bodies, to which Australia is a party.
On 25 August 1997, in the House of Representatives, the Minister representing the Minister for Employment, Education, Training and Youth Affairs, Dr David Kemp, answered a question on notice from Mrs Janice Crosio. Extracts of the question and answer follow (House of Representatives, Debates, 25 August 1997, p 6796):
Mrs Crosio—(1) Is Australia a signatory to the: (a) International Labour Organisation (ILO) Convention No. 29, Forced Labour, 1930; (b) ILO Convention No. 105, Abolition of Forced Labour, 1957; and (c) UN International Covenant on Civil and Political Rights, 1966, if so, in each case, when did Australia become a signatory.
(2) Do the treaties referred to in part (1)(a) prohibit its signatories from using labour which is exacted from persons under threat of penalty and for which those persons have not voluntarily offered themselves; and (b) consider a penalty as being not only a penal sanction but also the loss of rights or privileges, if so, what are the relevant provisions in each treaty.
Dr Kemp—
…Australia’s international obligations have been examined and the Work for the Dole Initiative, the details of which are included in a handbook recently published by the Department, does not contravene Australia’s international obligations.
(1)(a) “Yes”.
(b) “Yes”.
(c) “Yes”.
Australia is a party to ILO Convention No.29. It entered into force for Australia on 2 January 1932. Australia is a party to ILO Convention No.105. It entered into force for Australia on 7 June 1961. Australia signed the International Covenant on Civil and Political Rights on 18 December 1972 and it entered into force for Australia on 13 November 1980.
(2)(a) “Yes”.
“Yes”.
“No”.
The advice of the Attorney-General’s Department is that the ILO Convention No.29 requires signatories to “suppress the use of forced or compulsory labour in all its forms”.
Article 2.1 of Convention No 29 defines the term ‘forced or compulsory labour’ to mean “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.
The International Covenant on Civil and Political Rights, provides “no-one shall be required to perform forced or compulsory labour”.
The ILO Convention No 105 contains no provision regarding the imposition of a penalty and is therefore not relevant.
(b) “Unclear”.
“No”.
“Unclear”.
The advice of the Attorney-General's Department is that ILO Convention No 29, Forced Labour, 1930 and the UN International Covenant on Civil and Political Rights, 1966, (ICCPR), do not contain a specific provision indicating whether a penalty is to be defined as a penal sanction as well as the loss of rights or privileges. The answer depends upon the interpretation of the term 'forced or compulsory labour'. The view of the Attorney-General's Department on whether any particular circumstances might comprise 'forced or compulsory labour' for the purpose of the Convention and the ICCPR will depend upon the nature of those particular circumstances.
ILO Convention No. 105 on the Abolition of Forced Labour 1957, does not address this issue.
On 17 November 1997, in the House of Representatives, the Minister for Workplace Relations and Small Business answered a question on notice from Mr McClelland. Extracts of the question and answer follow (House of Representatives, Debates, 17 November 1997, p 10598):
Mr McClelland—
(1) Which International Labour Organisation (ILO) Conventions have Australian Governments considered ratifying since 1987.
(2) What process was adopted for the ratification of each convention which has been ratified since 1987…
(6) What conventions and recommendations were adopted by the Conference…
Mr Reith—
…(1) There are two groups of ILO Conventions that have been considered for ratification since 1987. The first group includes the Conventions which the Commonwealth has ratified. They are:
C.58 Minimum Age (Sea) (Revised), 1936; C.69# Certification of Ships’ Cooks, 1946; C.73# Medical Examination (Seafarers), 1946; C.92# Accommodation of Crews (Revised), 1949; C.133# Accommodation of Crews (Supplementary provisions), 1970; C.135 Workers’ Representatives, 1971; C.156 Workers with Family Responsibilities, 1981; C.158 Termination of Employment, 1982; C.159 Vocational Rehabilitation and Employment (Disabled Persons), 1983; C.160# Labour Statistics, 1985; C.166# Repatriation of Seafarers (Revised), 1987; C.173# Workers’ Claims (Employer’s Insolvency), 1982.
The Conventions marked “#” were ratified on the basis of implementation by Commonwealth law and practice alone.
The second group is made up of other Conventions which the Commonwealth has considered since 1987, but has not ratified. While the prospects for ratification of these Conventions has been examined (in consultation with the States and Territories where appropriate), this does not imply that ratification is necessarily a viable option for these Conventions. They include:
C.53 Officers’ Competency Certificates, 1936; C.81 Labour Inspection, 1947 (Part II and the Protocol); C.97 Migration for Employment (Revised), 1949; C.108# Seafarers’ Identity Documents, 1958; C.119 Guarding of Machinery, 1963; C.120 Hygiene in Commerce and Offices, 1964; C.129 Labour Inspection (Agriculture), 1969; C.134 Prevention of Accidents (Seafarers), 1970; C.138 Minimum Age, 1973; C.139 Occupational Cancer, 1974; C.140 Paid Education Leave, 1974; C.141 Rural Workers’ Organisations, 1975; C.143 Migrant Workers (Supplementary Provisions), 1975; C.145 Continuity of Employment (Seafarers), 1976; C.146 Seafarers’ Annual Leave with Pay, 1976; C.147 Merchant Shipping (Minimum Standards), 1976; C.148 Working Environment (Air Pollution, Noise and Vibration), 1977; C.149 Nursing Personnel, 1977; C.151 Labour Relations (Public Service), 1978; C.152 Occupational Safety and Health (Dock Work), 1979; C.154 Collective Bargaining, 1981; C.155 Occupational Safety and Health, 1981; C.161 Occupational Health Services, 1985; C.162 Asbestos, 1986; C.164 Health Protection and Medical Care (Seafarers), 1987; C.167 Safety and Health in Construction, 1988; C.169 Indigenous and Tribal Peoples, 1989; C.170 Chemicals, 1990; C.174 Prevention of Major Industrial Accidents, 1993; C.175 Part-time Work, 1994; C.176 Safety and Health in Mines, 1995.
The Convention marked “#” is for implementation by Commonwealth law and practice alone.
(2) The approach to ratification of Conventions by Australia is that this occurs only where two preconditions are satisfied, that is:
• law and practice in all relevant jurisdictions is in compliance with the Convention in question; and
• all State and Territory governments have formally agreed to ratification (except for those Conventions whose subject matter falls within the jurisdiction of the Commonwealth Government alone).
Furthermore, consistent with the requirements of Convention 144, Tripartite Consultation (International Labour Standards), 1976, which was ratified by Australia in 1979, the Commonwealth also consults with the most representative employer and worker organisations (ACCI and ACTU) on matters relating to the adoption, examination and ratification of ILO Conventions.
The procedure outlined above was carried out in relation to the ILO Conventions ratified by Australia since 1987, with two exceptions.
• When the Commonwealth ratified Convention 156, Workers with Family Responsibilities, 1981 in March 1990, it did so without the formal agreement of New South Wales and the Northern Territory. There was compliance with the provisions of the Convention at the time of ratification, and the Commonwealth wished to ratify on the 15th anniversary of International Women’s Day. The two jurisdictions subsequently provided their formal agreement to ratification.
• Convention 158, Termination of Employment, 1982 was ratified in February 1993. Law and practice was not fully in compliance with the provisions of the Convention, and the Commonwealth legislated using the external affairs power to ensure compliance with the provisions of the Convention before it came into force. None of the States and Territories provided formal agreement to ratification either before ratification or subsequently. The then Minister stated that ratification was a “special case necessitated by the removal or possible removal in a number of jurisdictions of previously accepted employment conditions”…
(6) The 84th (Maritime) ILC in 1996 adopted the following nine instruments: Convention 178 and Recommendation 185, Labour Inspection (Seafarers), 1996 Convention 179 and Recommendation 186, Recruitment and Placement of Seafarers Convention (Revised), 1996:
• Convention 180 and Recommendation 187, Seafarers’ Hours of Work and the Manning of Ships (Revised), 1996.
• Protocol to Convention 147, Merchant Shipping (Minimum Standards), 1976.
• The 85th ILC in 1997 adopted the following two instruments:
• Convention 181 and Recommendation 188, Private Employment Agencies, 1996.
On 25 March 1997, in the House of Representatives, the Minister for Industrial Relations, Mr Peter Reith, answered a question on notice from Mr Mark Latham. Extracts of the question and answer follow (House of Representatives, Debates, 25 March 1997, p 3027):
Mr Latham—…(2) Is he also able to say which ILO freedom of association conventions have been ratified by those states.
Mr Reith—
…(2) There are two major ILO freedom of association conventions:
No 87, Freedom of Association and Protection of the Right to Organise, 1948, and No 98, Right to Organise and Collective Bargaining, 1949.
Other freedom of association conventions include:
No 11, Right of Association (Agriculture), 1921 No 135, Workers’ Representatives, 1971 No 141, Rural Workers’ Organisations, 1975, and No 151, Labour Relations (Public Service), 1978.
The following list indicates, in respect of those Conventions, the ratification record of each ILO member State in the Asian Region, according to the ILO’s publication Lists of Ratifications by Convention and by country (as at 31 December 1995).
Afghanistan-C141
Australia-C11, C87, C98, C135
Bahrain-Nil
Bangladesh-C11, C87, C98
Cambodia-Nil
China-C11
Fiji-C11, C98
India-C11, C141
Indonesia-C98
Iran, Islamic Republic of-Nil
Iraq-C11, C98, C135
Japan-C87, C98
Jordan-C98, C135
Korea, Republic of-Nil
Kuwait-C87
Laos-Nil
Lebanon-C98
Malaysia-C98
Sabah-Nil
Sarawak-C11
Peninsular Malaysia-C11
Mongolia-C87, C98
Myanmar-C11, C87
Nepal-Ni
New Zealand-C11
Oman-Nil
Pakistan-C11, C87, C98
Papua New Guinea-C11, C98
Philippines-C87, C98, C141
Qatar-Nil
Saudi Arabia-Nil
Singapore-C11, C98
Solomon Islands-C11
Sri Lanka-C11, C87, C98, C135
Syrian Arab Republic-C11, C87, C98, C135
Thailand-Nil
United Arab Emirates-Nil
Vietnam-Nil
Yemen-C87, C98, C135
On 13 May 1997, in the Senate, Senator Campbell made the following comments concerning an International Labour Organisation convention on multinational enterprises during the course of the Government’s response to the report of the Joint Standing Committee on Foreign Affairs, Defence and Trade entitled Australia’s relations with Thailand (Senate, Debates, 13 May 1997, p 3192):
…Recommendation 45:That the Australian Government request the International Labour Organisation to adopt a convention to provide workers in foreign owned and/or operated businesses in developing countries with the same industrial health and safety standards as apply in the country of principle domicile.
The International Labour Organisation (ILO) examined the possibility of adopting a convention on multinational enterprises in the late 1970s. However, the ILO Governing Body decided that it would be preferable to put into place voluntary procedures associated with the Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy and to assess their effectiveness before proceeding any further in this direction. As far as can be ascertained, the issue of a Convention has not been raised again by governments, employers or workers.
The ILO publication International Principles and Guidelines on Social Policy for Multinational Enterprises: their usefulness and feasibility (Geneva, ILO, 1976) notes that a convention of the type suggested above would only be successful if widely ratified. Failure to meet with wide acceptance would be likely, leading to distortions between those countries which had ratified it and those which felt unable or were unwilling to do so. On this basis, the Government does not support the recommendation.
In February 1997, the Australian Government submitted comments to the UN Secretary-General on the optional Protocol to the Convention on the Rights of the Child on Children in Armed Conflict. The following is an extract from those comments:
The Australian Government has always been a strong supporter of the development of an optional Protocol to the Convention on the Rights of the Child on the protection of children in armed conflict, and has participated actively in the working group negotiating the text of the Protocol. In light of the disturbing indications of widespread involvement of children in conflicts currently taking place around the world, the Australian Government considers it a priority to support efforts, including the development of this Protocol, aimed at improving the international legal protection available to children in the context of armed conflict. In this context Australia was very disappointed that the working group was unable to conclude the drafting of the Protocol at its third session, held in Geneva in January 1997. With only a few issues remaining to be resolved, it is the Australian Government's view that States involved in the negotiations should make every effort to complete the drafting of the protocol at the next session of the working group.
The Australian Government welcomed the considerable efforts of the chair at the third session of the working group to achieve progress in the negotiations. His initiative in preparing a Chair's "perception text" was very useful given the working group's inability to reach agreement on a number of important elements in the text.
While much of the Chair's text was likely to be broadly acceptable, further work still needs to be done on issues such as the age of conscription, on a reservations article, and on ensuring that any exception for military schools is narrowly construed and consistent with the minimum age for voluntary recruitment ultimately adopted in the Protocol. The Australian Government would encourage the Chair to work with interested governments in the lead up to the next session of the working group to develop consensus on these and the other remaining issues.…
Also in February 1997, the Australian Government submitted comments to the UN Secretary-General on the optional Protocol to the Convention on the Rights of the Child on Sale of Children, Child Prostitution and Child Pornography. The following is an extract from those comments:
On 14 April a statement concerning the rights of the child was delivered on behalf of the Australian delegation to the fifty-third session of the Commission on Human Rights. Extracts of the statement follow:Australia strongly supports the development of the draft Optional Protocol to the Convention on the Rights of the Child on Sale of Children, Child Prostitution and Child Pornography as a means of protecting children against sexual exploitation. An optional protocol will build upon the legal protection of Articles 34 and 35 of the Convention on the Rights of the Child. This important draft instrument will, when finished and adopted, lead to a strengthening of international mechanisms to combat child prostitution, child pornography and other forms of child sexual abuse, including trafficking in children for these purposes.
In relation to specific elements of the draft annexed to the report of the working group at its third session (E/CN.4/1997/96), the Australian Government would make the following comments. Differing views are advanced at the working group as to whether the scope of a Protocol should be limited to sexual exploitation, or whether the instrument should have a wider scope, encompassing sale of children for purposes other that their sexual exploitation. Australia shares the view of an increasing number of governments participating at the working group that the scope of the Protocol should be confined to sexual exploitation.
Australia readily acknowledges that sale of and trafficking in children may occur for purposes other than the sexual exploitation of the child, for example, for commercial inter-country adoption or for non-sexual forms of exploitative child labour. However, it is Australia's view that these issues have already been or are being addressed in detail in international instruments which exist or are currently under development elsewhere, and by the mandates of other working groups or agencies within the UN system. While there may be a temptation to try to do more in relation to issues on which standards may already exist, this would not be an effective use of scarce resources. In areas where standards already exist the focus should be in implementing those standards. For this reason, in Australia's view resolution of the "scope" issue in favour of a Protocol designed to focus on child sexual exploitation will see the most effective use of UN resources in the current exercise. The elaboration of this instrument should be carefully targeted to address the present gap in international standards to combat these forms of child exploitation.
In relation to the coverage of Adoption for Commercial purposes, the Hague Convention on the Protection of Children and Cooperation in respect of Inter-country Adoption 1993 establishes a comprehensive regime for regulation of inter-country adoption. Its stated objects include:
to establish safeguards to ensure that inter-country adoption take place in the best interests of the child and with respect for his or her fundamental rights …; [and] to establish a system of co-operation amongst Contracting states to ensure that those safeguards are respected and thereby prevent the abduction, the sale of, or traffic in children. (emphasis supplied)
Further Article 21 of the CROC requires States to take all appropriate measures to prevent "improper financial gain" for those involved in inter-country adoption.
In relation to the coverage of trafficking in children for non-sexual forms of exploitative child labour, existing ILO Convention 29 (Forced Labour) and 138 (Minimum Age) already give some protection. To remedy existing gaps, exploitative child labour will be a subject for standard setting at the 86th Session 91998) of the ILO International Labour Conference (ILC), in the form of a Convention on Child Labour. This will aim to cover the employment of children in slave-like and bonded conditions and in dangerous and hazardous work.
Australia notes that in relation to the issue of sale for transplant of organs, the regulation of organ transplants and related matters is most appropriately dealt with by the World Health Organisation. Their Guiding Principles on Human Organ Transplantation prohibit any removal of organs from a minor, with the exception of regenerative tissue. [CHR, Summary Record of the 53rd Meeting, E/CN.4/1994/SR.53. 17th July 1996]. In addition while some reports exist about the practice [eg CHR, Report of the Special Rapporteur on the Sale of Children E/CN.4/1996/10], and there is some evidence about the trade in adult organs [CHR53 report, at p 4]. We note also that this issue has been considered in the Commission on Human Rights, which asked the Secretary-General in its resolution 1996/61 to continue the examination of the issue of removal of organs and tissues of children and adults for commercial purposes, and to include an analysis of this question in a report for submission to the Commission at its fifty-fifth session. Given the lack of empirical evidence as to the existence and extent of the practice we would prefer to exclude this issue from the Protocol until we have had an opportunity to consider the Secretary-General's report to CHR55.
Australia would wish to see obligations established by the Protocol include the following: clearer definition of what constitutes sexual exploitation of children; a requirement for States to establish relevant criminal laws with both national and extraterritorial coverage; establishment of uniform standards for extradition, and mutual legal assistance regimes; provision of minimum standards for the treatment of child victims by enforcement agencies, the judiciary and the legal system, particularly where they appear as witnesses in court proceedings; measures to address the sale and trafficking of children for the purposes of their exploitation.
Australia sees the development of legally binding standards in the draft Optional Protocol as complementing other international programs currently being pursued. These include the UN Program of Action for the Prevention of the Sale of Children, Child Prostitution and Child Pornography (adopted by the Commission on Human Rights at its 48th session in 1992), and the World Congress against the Commercial Sexual Exploitation of Children Declaration and Agenda for Action, adopted in Stockholm in August 1996.
…Another important development is the work underway within the ILO which will see the possible adoption in 1999 of a new convention dealing specifically with hazardous and exploitative forms of child labour. This new instrument, together with welcome developments in the area of codes of conduct involving industry, international agencies and local communities, augurs well for more effective action to eliminate the worst forms of child labour in the near term.
…Australia was disappointed with the lack of progress at the most recent session of the commission's working group elaborating a draft optional protocol on children in armed conflict. As the Machel report has made graphically clear, the involvement of children in armed conflict is a serious and widespread problem. There is a pressing need to address the question of age limits for recruitment into armed forces and the participation by children in armed conflict. We urge the commission's working group to reach early agreement on the text of an optional protocol which will ensure that the appropriate legal protection is extended to children in this area.
On 26 May 1997, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, provided the following information in the course of an additional response to a question without notice from Mr Martin Ferguson concerning the United Nations Convention on the Rights of the Child (House of Representatives, Debates, 26 May 1997, p 3972):
…the Convention was ratified by Australia on 17 December 1990. I am advised by my department that Australia lodged a reservation to Article 37(c) of the convention. That reservation states:…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).
On 17 June 1997, in the House of Representatives, the Minister for Trade, Mr Tim Fischer, made the following comments concerning the appropriate mechanisms for combating child labour in the course of debate on the Appropriation Bill (No. 1) 1997-98 (House of Representatives, Debates, 17 June 1997, p 5495):
…My beef simply is that there is an organisation called the International Labour Organisation and it should get on with the task of doing, among other things, all that it ought to be doing with regard to child labour. I do not believe that it sits happily in the World Trade Organisation arena. The correct way to carry it forward is in the ILO and I have discussed this previously with the Minister for Industrial Relations. I nevertheless agree that this abuse of children anywhere in the 1990s is absolutely unacceptable as is the fact that the Internet is being abused for child pornography purposes. Again, that was pursued by Foreign Affairs and Trade and by me in the OECD setting just two weeks ago. I do thank members for their thoughtful contributions to this estimates debate for Foreign Affairs and Trade…
On 2 September 1997, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Daryl Melham concerning the Convention on the Rights of the Child. Extracts of the question and answer follow (House of Representatives, Debates, 2 September 1997, p 7612):
Mr Melham—What steps have been taken to draft optional protocols to the 1989 Convention on the Rights of the Child.
Mr Downer—
Two draft Optional Protocols to the 1989 Convention on the Rights of the Child (the Convention) are currently being negotiated by Working Groups of the United Nations Commission for Human Rights (CHR).
The first Protocol will cover the Sale of Children, Child Prostitution and Child Pornography. At its 1994 session, CHR established a Working Group to develop this draft Optional Protocol. The Protocol aims to give greater definition to the obligations contained in Articles 34 and 35 of the Convention, which require States parties to protect children from sexual exploitation (including prostitution and pornography), sale, trafficking and abduction. The Protocol would also aim to strengthen international mechanisms for cooperation in dealing with these issues.
Australia has been a strong supporter of this Protocol, and has actively participated at the drafting sessions of the Working Group. A third session of the Working Group was held in Geneva in February 1997. Although the negotiations were given significant political impetus following the August 1996 Stockholm World Congress Against the Commercial Sexual Exploitation of Children, disagreement persists about the scope of the Protocol, with a small number of countries wishing to broaden the scope to include the sale of children for other purposes, such as for organ use or for illegal adoption.
The second protocol focuses on Children in Armed Conflict. A Working Group to develop this draft Optional Protocol was also established at the 1994 session of CHR. The Protocol aims to raise the minimum age for voluntary recruitment into the armed forces, and for participation in hostilities, from the age of 15 in Article 38(2) of the Convention.
Australia strongly supports this draft Optional Protocol, and has been an active participant at the drafting sessions of the Working Group. A third session of the Working Group was held in Geneva in January 1997, where discussions focused in particular on two unresolved issues: the age for voluntary recruitment into the armed forces, and recruitment by non-governmental armed forces.
On 3 September 1997, in the Senate, Senator David Brownhill made the following comments concerning Australia’s treaty obligations in relation to exploitation of children in the course of the Government’s response to the Economics References Committee report on outworkers in the garment industry (Senate, Debates, 3 September 1997, p 6356):
…Australia's major treaty obligation in relation to exploitation of children is Article 32 of the United Nations Convention on the Rights of the Child (CRC), which came into force for Australia in 1991 after ratification in 1990. Article 32 provides:
1. State Parties recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development.
2. State Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present Article. To this end, and having regard to the relevant provisions of other international instruments, State Parties shall in particular:
(a) provide for a minimum age or ages for admission to employment;
(b) provide for appropriate regulation of the hours and conditions of employment; and
(c) provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present Article.
Australia fulfils this obligation by means of Commonwealth and State legislation addressing occupational health and safety matters, minimum school leaving ages, restrictions on child employment and employment of children in particular work. Industrial tribunals deal with wage rates.
More detail is spelt out in Australia's first report on the implementation of the CRC, which was tabled in Parliament in December 1995.
The International Labour Organisation (ILO) has two current international labour standards which are relevant to child labour. They are Convention 29, Forced Labour, 1930 and Convention 138, Minimum Age, 1973. Australia has ratified Convention 29, which addresses one of the worst forms of child labour, ie forced labour, and is not relevant to the current matter. Australia has not ratified Convention 138, which requires a statutory minimum age for employment of 15 years. Children aged 13 to 15 years may undertake "light work" under defined conditions, but employment of children aged under 13 years is prohibited (with the exception of artistic and similar performances).
In recognition of the limitations resulting from the prescriptive nature of Convention 138, the ILO has placed "child labour" on the agenda of its annual Conference in 1998 and 1999, with a view to adopting new international labour standards on the elimination of exploitative child labour in 1999. Australia will be taking an active role in the formulation of these new standards.
On 11 October 1997, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning joint action with the Philippines to combat child sexual abuse. An extract of the release follows:
…I have today signed with Secretary Siazon a Memorandum of Understanding for Joint Action to Combat Child Sexual Abuse and Other Serious Crime. The MOU is the first of its kind for Australia and represents a landmark in action against child sexual abuse.The MOU sets out areas of cooperation between police and other relevant agencies of our governments. It provides for the exchange of intelligence and other information relating to child sexual abuse, and for the establishment of joint investigations where that is appropriate. It commits both governments to immigration procedures to guard against children being placed at harm of exploitation. And it also commits both governments to consult closely in international efforts aimed at combating this increasingly trans-national phenomenon.
On 30 October 1997, a statement concerning the promotion and protection of the rights of children was delivered on behalf of the Australian delegation to the Third Committee of the fifty-second United Nations General Assembly. Extracts of the statement follow:
…With currently 191 states parties, the Convention on the Rights of the Child has almost achieved universal ratification. The Convention has been a significant factor in raising awareness of children’s rights, in acting as a catalyst for change and in providing a practical framework for addressing the needs of children. Australia would urge the very small number of states which have not yet ratified the Convention to do so as soon as possible.…While national action is essential, there is of course considerable scope at the regional and international level for joint action, especially in tackling problems of a cross-border nature such as trafficking, child sex tourism and child pornography. Earlier this month in Manila the Australian foreign minister signed with the Philippines foreign secretary a memorandum of understanding for joint action to combat child sexual abuse and other serious crime. The MOU is the first of its kind for Australia and represents a landmark in action against child sexual abuse.
The MOU will complement action that Australia is already taking against child sexual abuse, including the child sex tourism act — which allows the Australian legal system to try Australians for conduct occurring outside Australia. The Australian Government, through the Australian agency for international development, AusAID, is also assisting governments in developing countries in tackling the sexual exploitation of children. Assistance includes the rehabilitation of children and providing alternative sources of income for their families, and funding activities involving advocacy and awareness-raising. AusAID is also funding projects which aim at assisting partner governments in strengthening their police forces and legal and judicial institutions so as to increase their capacity to enforce the law against exploitative employers and sexual offenders.
…Last year in this forum Australia welcomed the initiative of the Swedish government, in conjunction with UNICEF and ECPAT, to end child prostitution, pornography and trafficking, in organising the world congress against the commercial sexual exploitation of children. The Australian Department of Health and Family Services has been given the task of developing a national agenda for action against the commercial sexual exploitation of children, which will implement one of the major commitments under the world congress agenda for action. A meeting will shortly take place, involving Federal, State and Territory representatives and non-government organisations, to commence the task of jointly developing this national agenda.
Another important area of international cooperation in dealing with the sexual exploitation of children is the development of a draft optional protocol to the Convention on the Rights of the Child on sale of children, child prostitution and child pornography. Australia strongly supports the development of this protocol and is committed to achieving a positive outcome which will strengthen legal protection for children in an area of growing international concern.
While some progress was made at the last session of the working group, it is of concern that further work was slowed down by differing views as to whether the scope of a protocol should be limited to sexual exploitation, or whether the instrument should have a wider scope, encompassing sale of children for purposes other than their sexual exploitation. While Australia readily acknowledges that sale of and trafficking in children may occur for purposes other than sexual exploitation, for example, for commercial inter-country adoption or for non-sexual forms of exploitative child labour, it is our view, consistent with that of an increasing number of governments participating at the working group, that the scope of the protocol should be confined to sexual exploitation, in order to add value to the range of existing instruments on children’s rights and to avoid duplication with other international activities and instruments. Australia hopes that further, significant progress in the development of this protocol will be achieved at the next session of the working group.
Another area in which international cooperation is essential in order to realise the rights of children is in protecting them from involvement in and the effects of armed conflict. Australia appreciated the final report of Ms Machel, the expert appointed by the Secretary-General to study the impact of armed conflict on children, and we welcome the recent appointment of Mr Otunnu as the Secretary-General's Special Representative.
As a strong supporter of the development of an optional protocol to the Convention on the rights of the child on children in armed conflict, Australia was disappointed with the lack of progress at the most recent session of the commission's working group elaborating this instrument. As the Machel report made graphically clear, the involvement of children in armed conflict is a serious and widespread problem. There is a pressing need to address the issue of age limits for recruitment into armed forces and the participation by children in armed conflict. With only a few issues remaining to be resolved in the negotiations, we urge the working group to make every effort to complete the drafting of the protocol at its next session so as to ensure that the appropriate legal protection is extended to children in this area.
Finally, Mr Chairman, I would like to refer to the problem of exploitative child labour. Despite the legal obligations contained in Article 32 of the Convention, children continue to be exploited for their labour. An important development is the work underway within the ILO which we hope will see the adoption in 1999 of a new Convention dealing specifically with hazardous and exploitative forms of child labour. This new instrument, together with welcome developments in the area of voluntary codes of conduct involving industry, international agencies and local communities, augurs well for more effective action to eliminate the worst forms of child labour in the near term. Another way in which Australia addresses the exploitation of children is by participating in international fora, such as the Conference on Child Labour currently taking place in Oslo. Such meetings assist in developing a greater awareness of the nature and scope of the problem, and of the steps which must be taken to address exploitative child labour in practical and meaningful ways.
On 21 October 1997, in the Senate, the Minister representing the Minister for Foreign Affairs, Senator Robert Hill answered a question on notice from Senator Diane Margetts concerning international instruments on the rights of indigenous peoples. Extracts from the question and answer follow (Senate, Debates, 21 October 1997, p 7770):
Senator Margetts—With reference to Australia’s treaty obligations relating to indigenous people:
(1) What is the full list of treaties and other international instruments signed by Australia that relate to indigenous people.
(2) What legislation has the Commonwealth implemented to enact treaty obligations relating to indigenous people.
(3) What treaty obligations relating to indigenous people remain unimplemented through legislation…
Senator Hill—…(1) There are a number of key treaties which act to protect the rights of all Australians, including indigenous peoples. These are:
• the Convention on the Elimination of all Forms of Racial Discrimination, ratified by Australia in 1975;
• the Convention on the Rights of the Child, ratified by Australia in 1990;
• the International Covenant on Civil and Political Rights, ratified by Australia in 1980;
• the International Covenant on Economic, Social and Cultural Rights, ratified by Australia in 1975; and
• the International Convention on the Elimination of all forms of Discrimination Against Women, ratified by Australia in 1983.
In addition, Australia has ratified International Labor Organisation (ILO) Convention 86, Concerning the Maximum Length of Contracts of Employment with Indigenous Workers (ratified by Australia in 1973) and is considering its position with respect to ILO Convention 169, the Convention Concerning Indigenous and Tribal Peoples in Indigenous Countries, both of which specifically address the rights of indigenous peoples.
…(2) Key legislation which implements treaty obligations and which is relevant to indigenous peoples includes:
• the Aboriginal and Torres Strait Islander Commission Act 1989;
• the Aboriginal and Torres Strait Islander Heritage Protection Act 1984;
• the Aboriginal Land Rights (Northern Territory) Act 1976;
• the Council for Aboriginal Reconciliation Act 1991;
• the Human Rights and Equal Opportunity Commission Act 1986;
• the Land Fund and Indigenous Land Corporation (ATSIC Amendment) Act 1995;
• the Native Title Act 1993;
• the Racial Discrimination Act 1975; and
• the Racial Hatred Act 1995.
(3) It is Australian practice not to ratify or accept treaty obligations until domestic law and practice complies with the provisions of the treaty under consideration…
.
On 26 November 1997, in the Senate, Senator Nicholas Minchin made the following comments concerning the work done by locally engaged staff in the course of the Government’s response to the report of the Foreign Affairs, Defence and Trade Reference Committee entitled Helping Australians abroad: A review of the Australian Government’s Consular Services (Senate, Debates, 26 November 1997, p 9521):
…Recommendation 5: The Committee recommends that the Department of Foreign Affairs and Trade examine options to enable locally engaged staff in Australian posts overseas to undertake notarial acts.DFAT agrees that it could use its locally engaged staff (LES) more effectively by enabling them, in appropriate circumstances, to perform notarial acts. This would deliver cost efficiencies and relieve Australia-based officers, from what is essentially routine work, to concentrate on higher priority functions. Notarial acts form a large part of the consular functions performed by Australian posts overseas (over 32,000 were performed in 1996/97) and are becoming an unsustainable burden on Australia-based officers at our overseas posts.
Currently, domestic and international law precludes LES from performing notarial acts. As a first step towards implementing this recommendation, the Consular Fees Act 1955 has been amended to provide for the appointment of LES for the purposes of charging prescribed fees. Appointments will be made under authority of the Secretary of the Department of Foreign Affairs and Trade. Further, in most cases, the Department will only appoint LES for these purposes who are Australian nationals to avoid potential complications under the Vienna Convention on Consular Relations.
Further steps to implement the recommendation will require consultation with State and Territory Governments to examine options to appoint LES to perform notarial acts under relevant State and Territory legislation.
Government Response: Accepted. Amendments to the Consular Fees Act 1955 have been made, and in consultation with State and Territory Governments, we will examine options to enable suitably qualified locally engaged staff to perform notarial acts under relevant State and Territory legislation.
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 24 February 1997, in the House of Representatives, the Prime Minister, Mr John Howard, answered a question without notice from Mr Graeme Campbell. Extracts of the question and answer follow (House of Representatives, Debates, 24 February 1997, p 1060):
Mr Campbell—I address my question to the Prime Minister. The Prime Minister will be aware that world heritage listing cannot be rescinded by the Australian parliament but only by a majority vote of the United Nations. We have had lawyers for Aboriginal interests saying that the Racial Discrimination Act could not be amended or revoked by this parliament because it would contravene some international act that has been signed. Does the Prime Minister agree that signing international treaties does affect our national sovereignty? Does the affecting of Australia’s national sovereignty bother the Prime Minister? What does he propose to do about it?
Mr Howard—
My understanding of the legal position is that, until the Teoh case, the view was that the mere signing of a treaty did not of itself impose a domestic obligation. But, as a result of the Teoh case, I think the law then became, because of the judgment of the High Court, that it could in certain circumstances impose an obligation without some kind of confirmatory domestic instrument unless there was some declaration to other effect. It was also my understanding that some steps in that direction — I am not quite sure how extensive — were taken by the former government.
We have considered the matter and it is the view of this government that the mere signing of a treaty should not, in any circumstances, impose a domestic obligation on this country. I have the strongest possible view — and I think it is a view shared by all of my colleagues and, I hope, by many on the other side; it is certainly shared by at least one on the other side, that is, the person who has asked the question — that the only way in which the law of this country can be changed, or ought to be changed, is through the parliament of this country passing a law. I hold that view very strongly and it is a view that ought to be reiterated in the context of debate about the respective roles of the parliament and the courts in the governance of Australia.
On 25 February 1997, the Attorney-General, Mr Daryl Williams, and the Minister for Foreign Affairs, Mr Alexander Downer, issued a joint statement concerning the effect of treaties in administrative decision-making. The text of the statement follows:
This statement addresses the consequences of the 7 April 1995 decision of the High Court in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273. In relation to administrative decisions from today, it replaces the joint statement made on 10 May 1995 by the then Minister for Foreign Affairs and the then Attorney-General.In the Teoh case the majority of the High Court held that entry into a treaty by Australia creates a ‘legitimate expectation’ in administrative law that the Executive Government and its agencies will act in accordance with the terms of the treaty, even where those terms have not been incorporated into Australian law. The High Court held that, where a decision-maker proposes to make a decision which is inconsistent with such a legitimate expectation, procedural fairness requires that the person affected by the decision be given notice and an adequate opportunity to put arguments on the point. The High Court made clear that such an expectation cannot arise where there is either a statutory or executive indication to the contrary.
It is a longstanding principle that the provisions of a treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into domestic law by statute. The High Court in the Teoh case affirmed that principle and at the same time gave treaties an effect in Australian law, as described in the previous paragraph, which they did not previously have. The Government is of the view that this development is not consistent with the proper role of Parliament in implementing treaties in Australian law. Under the Australian Constitution, the Executive Government has the power to make Australia a party to a treaty. It is for Australian parliaments, however, to change Australian law to implement treaty obligations.
The purpose of this statement is to ensure that the executive act of entering into a treaty does not give rise to legitimate expectations in administrative law.
The act of entering into a treaty is unlike the considered statements of public policy which previously had been held by the courts to give rise to a legitimate expectation in administrative law. The prospect was left open by the Teoh case of decisions being challenged on the basis of a failure sufficiently to advert to relevant international obligations including where the decision-maker and the person affected had no knowledge of the relevant obligations at the time of the decision. This is not conducive to good administration.
Therefore, we indicate on behalf of the Government that the act of entering into a treaty does not give rise to legitimate expectations in administrative law which could form the basis for challenging any administrative decisions from today. This is a clear expression by the Executive Government of the Commonwealth of a contrary indication referred to by the majority of the High Court in the Teoh Case.
Subject to the next paragraph, the executive indication in this joint statement applies to both Commonwealth and State and Territory administrative decisions and to the entry into any treaty by Australia in the future as well as to treaties to which Australia already is a party. In relation to administrative decisions made in the period between 10 May 1995 and today reliance will continue to be placed on the joint statement made by the then Minister for Foreign Affairs an the then Attorney-General on 10 May 1995.
Where a State or Territory government or parliament takes, or has taken, action to displace legitimate expectations arising out of entry into treaties in relation to State or Territory administrative decisions this statement will have no operation in relation to those decisions.
The Government will also introduce legislation to provide that the executive act of entering into a treaty does not give rise to legitimate expectations in administrative law.
Also on 25 February 1997, in the House of Representatives, the Attorney-General, Mr Daryl Williams, answered a question without notice from Mr Paul Neville. Extracts of the question and answer follow (House of Representatives, Debates, 25 February 1997, p 1169):
Mr Neville—My question is addressed to the Attorney-General and Minister for Justice. The Attorney-General will be aware of the High Court’s Teoh decision which decided that international treaty obligations could create procedural rights in domestic law. The Attorney-General will also be aware that the previous government made an executive statement in response to this and introduced legislation which lapsed with the calling of the last federal election. Can the Attorney-General advise the House what action his government intends to take in response to the Teoh decision?
Mr Williams—I am pleased to advise the House that the government has decided to take further action in response to the decision of the High Court in the Teoh case. This action will take the form of an executive statement, to be issued today jointly by me and the Minister for Foreign Affairs, and the statement will be followed by legislation.
Members will recall that the High Court held that the entry into a treaty by Australia gave rise to a legitimate expectation in administrative law that the executive government and its agencies would act in a manner consistent with the terms of the treaty even if those terms had not been incorporated in domestic law. This gave rise to a procedural right to be heard where an administrative decision maker proposed making a decision inconsistent with the expectation. However, the High Court made it clear that the legitimate expectation at administrative law could be set aside by the government either by legislation or by executive act.
Those opposite will recall that the previous government issued an executive statement on 10 May 1995, which set aside, for the past and for the future, expectations based on entry into treaties. We followed this up with legislation which lapsed on the calling of the last election. The executive statement to be issued today will reinforce this government’s view that the Teoh doctrine detracts from the proper role of the parliament in passing legislation to give effect to treaties. The executive government undoubtedly has power to make Australia a party to a treaty, but it is for the Australian parliaments to change Australian law to implement Australian obligations.
On 18 June 1997, in the House of Representatives, the Attorney-General, Mr Daryl Williams, made the following comments in the course of the second reading speech for the Administrative Decisions (Effect Of International Instruments) Bill 1997 (House of Representatives, Debates, 18 June 1997, p 5545):
This bill responds to the High Court’s decision in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273, which was handed down on 7 April 1995. In that decision, the court found that, by entering into a treaty, the Australian government creates a ‘legitimate expectation’ in administrative law that the executive government and its agencies will act in accordance with the terms of the treaty, even where those terms have not been incorporated into Australian law.The court also said that, where a decision maker intends to act inconsistently with a treaty, procedural fairness required that the person affected by the decision be given notice and an adequate opportunity to put arguments on the point. If not, the decision could be set aside on the grounds of unfairness. The High Court made it clear that such an expectation cannot arise where there is either a statutory or executive indication to the contrary.
The High Court’s decision gave treaties an effect in Australian law which they did not previously have. The government is firmly of the view that this development is not consistent with the proper role of parliament in implementing treaties in Australian law.
It is a longstanding principle that the provisions of a treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated. Under the Australian Constitution, the executive government has the power to make Australia a party to a treaty. It is for Australian parliaments, however, to change Australian law to implement treaty obligations.
For these reasons, on 25 February 1997 the Minister for Foreign Affairs (Mr Downer) and I made a joint statement which set aside legitimate expectations arising out of entry into treaties. This was a clear expression by the executive government of the Commonwealth of a contrary intention referred to by the majority of the High Court in the Teoh case. The joint statement of 25 February 1997 replaced a joint statement which was made by the previous government on 10 May 1995. However, the 10 May 1995 joint statement continues to apply to decisions made between the date of that statement and 25 February 1997.
On 25 February, we also announced that legislation would be introduced into the parliament to displace the legitimate expectation in administrative law which would otherwise arise out of the entry into treaties. This bill fulfils that undertaking. It is a clear statutory indication to the contrary as discussed by the High Court in the Teoh case. It gives this parliament a role in restoring the effect of treaties in Australian law to that they had prior to the High Court’s decision in the Teoh case.
In passing this legislation, the parliament also will be reasserting its proper role in changing Australian law to implement treaties. Indeed, the bill complements the treaty reforms this government initiated on coming into office. One of the principal aims of those reforms was to enhance the role of parliament in scrutinising treaty action by the executive government. Those reforms included the tabling of treaties in parliament prior to the government taking action to fully become a party to a treaty, the preparation and tabling of national interest analyses for each treaty to which it is proposed Australia become a party and the establishment of the Joint Standing Committee on Treaties to examine treaties.
These measures giving the parliament a proper role in the treaty-making process could have been introduced by the previous government. However, it was too intent on keeping parliament in the dark about treaties. This veil of secrecy now has been lifted.
I turn now to the terms of the bill itself. The bill will restore the situation which existed before the Teoh case. That is, if there are to be changes to procedural or substantive rights in Australian law resulting from adherence to a treaty, they will result from parliamentary and not executive action. Indeed, this proper role of Commonwealth, state and territory legislatures is emphasised in the sixth paragraph of the preamble to the bill.
Clause 5 of the bill gives effect to the statement by the majority of the High Court that a legitimate expectation arising out of entry into a treaty by Australia can be displaced by executive or legislative action. Clause 5 provides that no legitimate expectation providing a basis at law for challenging an administrative decision can arise out of the fact that Australia is bound by an international instrument or the fact that an enactment produces or refers to such an instrument.
The term ‘international instrument’ is defined in clause 4 and covers, amongst other types of instruments, treaties and conventions. To fall within the definition, the instrument must be binding at international law. The definition also covers parts of such instruments.
The terms ‘administrative decision’ and ‘enactment’ are also defined in Clause 4. The act will apply to administrative decisions made after it enters into force. However, the term ‘administrative decision’ extends to an administrative decision reviewing or determining an appeal in respect of a decision made before the commencement of the legislation. The 25 February 1997 joint statement will continue to apply to decisions made between 25 February 1997 and the date of entry into force of this bill.
It is unclear from the decision of the High Court in Teoh’s case whether state and territory administrative decisions may be the subject of legitimate expectations arising out of treaties. This uncertainty could not be allowed to remain. Therefore, the bill is expressed to extend to state and territory decisions.
Since ratification of a treaty is a Commonwealth executive action, it is entirely appropriate for the Commonwealth to legislate to control the effect of that action in Australian domestic law generally. The States and Territories all support Commonwealth legislation on this issue. However, they differ in their views on whether the Commonwealth legislation should be applied to state and territory decisions. Therefore, Clause 6 of the bill contains a roll-back provision. This excludes the operation of the bill in relation to State or Territory administrative decisions where the relevant state or territory legislature passes, or has passed, legislation having the same or similar effect as this bill.
This means that it will be open to a state or territory to have its own legislation of similar effect. South Australia enacted such legislation in 1995. Therefore, the bill will have no application to state administrative decisions in South Australia.
Nor does the bill prevent any state which wishes to do so from passing a law or taking its own executive actions in relation to treaties accepted by Australia which might themselves create a legitimate expectation. In that case, the legitimate expectation would flow from state law and not the Commonwealth executive act of ratification.
Clause 7 puts it beyond doubt that parliament is not affecting the way in which treaties may otherwise have relevance in Australian law. Let me mention a number of existing uses covered by Clause 7.
Firstly, this bill will not affect the operation of treaty provisions which have been incorporated into Australian law. For example, it does not affect the provisions of the Vienna Convention on Diplomatic Relations which are given the force of law by the Diplomatic Privileges and Immunities Act 1967.
Secondly, the bill will not affect the operation of an act which provides for the redress of grievances in respect of alleged breaches of international instruments to which Australia is a party. For example, the bill does not affect the operation of procedures available under the Human Rights and Equal Opportunity Commission Act 1986.
Thirdly, the bill does not affect the operation of legislation which provides that compliance with an international instrument is a relevant consideration in making an administrative decision. For example, under the air navigation regulations, compliance with Australia’s bilateral air services agreements is a relevant consideration in making various decisions.
Fourthly, the bill does not make compliance with an international instrument an irrelevant consideration in making an administrative decision where that would otherwise be consistent with the scope and object of the particular statutory provision. Fifthly, the bill will not affect the use by courts of international law in the form of treaties in the interpretation of statutes.
Finally, it will not affect their use of international law as a source of guidance for the development of the common law.
This use of treaties as one source for the development of the common law is to be distinguished from the High Court’s finding that treaties gave rise to legitimate expectations in administrative law. It is the legitimate expectation aspect of the Teoh decision with which this government and the previous government disagreed. That is the aspect addressed by this Bill…
On 24 June 1997, in the Senate, Senator David Brownhill made the following comments concerning the treaty consultation process in the course of the government’s response to the Joint Standing Committee on Treaties’ fourth report (Senate, Debates, 24 June 1997, p 4984):
In response, it should first be noted that a summary of the views of the parties consulted on the terms of a treaty, including the States and Territories, is now required in the pro forma for a National Interest Analysis (NIA) for presentation to parliament. Since late 1996, the version provided to line Departments and agencies has included under the Consultation heading: "A relatively detailed statement setting out the consultations that have occurred in relation to the treaty action between the Commonwealth and the States and Territories and with community and other interested parties. A summary of the views of these parties should also be included." Another change recommended in the committee's First Report, provision in NIAs of contact details for the responsible areas of Departments or agencies, has also been acted on in recent tablings. And prompted by the committee's remarks, especially in the fourth report, the Department of Foreign Affairs and Trade has prepared a simplified table of treaty-making steps - a condensation of relevant sections of the Information Kit (Australia and International Treaty Making ) and Negotiation, Conclusion and Implementation of International Treaties and Arrangements that are already widely distributed - and is making it available to line officials, with reiterated advice on the importance of consultation.
Second, the committee's concern for the adequacy of consultation with the states and territories is noted by the government. In no case that the government is aware of (since the May 1996 reform of the process) has any area of Commonwealth Government failed to inform the states and territories of significant treaty developments, or resisted cross-jurisdictional co-operation when the states and territories have sought it. The government would be interested to know of any specific examples the committee may be able to provide in which consultation with the states and territories has been deficient, and especially in which the treaty negotiations have been of sensitivity and importance to the states and territories.
The Commonwealth will continue to provide full and early information to the states and territories about treaty negotiations and actions contemplated or underway - but thereafter relies on the other jurisdictions to identify their own interests and to become involved accordingly. There are already several Commonwealth-State institutions that provide forums for discussion of treaties, both general (notably the Standing Committee on Treaties (SCOT) and the Standing Committee of Attorneys-General) and subject-specific (such as the Intergovernmental Committee for Ecologically Sustainable Development, or the Consultative Forum on Mutual Recognition Agreements on Conformity Assessment). The Council of Australian Governments (COAG) established the Treaties Council to consider international instruments of the greatest concern to the states and territories at Head-of-Government level. And there is the general principle, spelt out in the Principles and Procedures for Commonwealth-State Consultation on Treaties agreed on by COAG at its meeting in June 1996, that the states and territories will be fully involved at every stage - from the negotiating mandate through the negotiating delegations to the domestic implementation - for all treaties that they identify as being of sensitivity and importance to themselves.
Third, as to the underlying philosophy of community consultation and the role of the Department of Foreign Affairs and Trade in giving effect to it: consultation in treaty making was the main theme of the government's reform of the process last year. There is no standard formula for adequate consultation (beyond the invitation to states and territories through the SCOT process); Departments and agencies are advised to think widely and carefully about those interested and affected. Different circumstances apply to different instruments, so deliberate duplication was built into the system. Sections of the community with concerns about a treaty or class of treaties are welcome, for example: to contact the Department for information about the status of the instruments in question and to be pointed to the responsible area of the machinery of government; or to develop dialogue with Government Departments about continuing programs; or to make representations through ministers; or to raise concerns through Members of Parliament; or to enlist the states and territories in taking an interest. The responsible officials in line Departments and agencies must identify the main stakeholders for particular treaties - but the safety net for consultation is parliamentary tabling and the Joint Standing Committee on Treaties. It is not a lapse of the process when proposed treaty actions before the committee attract some submissions or evidence that has not already been incorporated in the government's consideration; this is one reason the Trick or Treaty? inquiry recommended such a committee's establishment.
There are several reasons why an NIA might record only limited consultation before a treaty reaches the final and most public forum (that is, parliament): international practice as it relates to the confidentiality of bilateral treaties before signature; the routine nature of the action in question or the fact that the government had not been aware of any particular controversy; a nil response from those invited to contribute; or urgency (not that urgency lessens the eventual requirement for transparency). In the case of the IRRI-NIA, the government had taken the view that the regularising of the Institute's international status was not directly of concern to the domestic industry - though it is now prepared to accept that it would have been better to seek confirmation from farming and ricegrowing industry bodies before presenting the action to parliament. The Department of Foreign Affairs and Trade ensures a standard format, readily understood prose, and the provision of an appropriate level of detail against all the sub-headings of the NIA pro forma. Its invariable advice in discussing treaty finalisation with the responsible officials is to remind them that before the binding step is taken, the whole proposed treaty action will be published and scrutinised by the committee, and that the consultation undertaken must therefore be defensible.
On 2 December 1997, in the Senate, Senator Ian Campbell provided the government response to the Joint Select Committee on Family Law Issues report entitled “Child Support Scheme: An Examination of the Operation and Effectiveness of the Scheme”. The response included the following passages on the use of treaties to enforce child support obligations (Senate, Debates, 2 December 1997, p 10052):
The Attorney-General’s Department is currently negotiating with a number of countries to establish new bilateral arrangements on child maintenance. In particular negotiations are currently occurring with New Zealand with the objective of improving reciprocal enforcement arrangements…
Australia has always preferred to develop bi-lateral arrangements on child maintenance instead of relying on [the United Nations Convention on the Recovery Abroad of Maintenance] (UNCRAM), although the difficulties associated with concluding new agreements should not be underestimated. Many countries refuse to enter bi-lateral arrangements either because their child maintenance systems are incompatible with the system in Australia or because they prefer, as a matter of policy, to use multi-lateral treaties such as UNCRAM. Discussions with European countries suggest that, rather than participate in time-consuming and complex negotiations for bilateral arrangements, they would prefer it if Australia acceded to The Hague Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations 1973, a multi-lateral arrangement. The Government accepts this recommendation but will also explore the practicalities and benefits of multi-lateral approaches.
On 27 August 1997, in the House of Representatives, in the course of debate of the Workplace Relations Amendment Bill 1997 the Minister for Workplace Relations and Small Business, Mr Peter Reith, made the following comments concerning the interpretation of ILO Conventions (House of Representatives, Debates, 27 August 1997, p 7128):
The member for Gellibrand is here and he made some claims about whether or not this was consistent with our international obligations. Let me respond to those in a minute. But, just before doing so, I point out that the fact is that if you look at the convention it says that you are entitled to so draft legislation as to allow for exclusions of this type. Article 2 of the ILO’s Termination of Employment Convention 1982 plainly allows exclusion of employees where special problems of a serious nature arise because of the size of the enterprise.The opposition say, however, that such an exclusion can only be done if it is done at the outset and acknowledged in Australia’s first report to the ILO about its implementation of the Convention. I am aware that the ILO’s committee of experts has attributed this effect to a paragraph of the Convention which requires successive reports to address any developments in the exclusion set out in the first report. But there is nothing in the debates or preparatory papers for this convention to support such an interpretation, which would frustrate the whole provision to deal with new problems as they arise. As a matter of commonsense, it clearly cannot be the interpretation which you put upon it.
On 2 October 1997, the Attorney-General, Mr Daryl Williams, issued a media release concerning a judicial cooperation treaty with Thailand. Extracts of the release follow:
Today the Thai Minister for Justice, His Excellency Mr Suwit Khunkitti, and I have signed a Judicial Cooperation treaty between Australia and Thailand in respect of civil and commercial matters…This bilateral treaty was an initiative of the Thai Government, and represents the first of its kind between Australia and other nations of the Asia-Pacific region.
The agreement will significantly facilitate the service of process and the taking of evidence in civil and commercial legal proceedings involving Australia and Thailand, allowing direct access to designated authorities in both countries without the need to resort to the diplomatic channels.
Under this agreement, the nationals of one country will enjoy in the other country access to the courts, legal aid and reductions or exemptions from the costs of proceedings, to the same extent as nationals of the other country.
The Agreement also provides for co-operation in encouraging the use of arbitration as a means of settling commercial disputes.
On 11 November 1997, the Minister for Foreign Affairs, Mr Alexander Downer, and the Minister for Industry, Science and Tourism, Mr John Moore, issued a joint media release concerning a cooperation agreement signed with Indonesia. Extracts of the statement follow:
Cooperation between Australia and Indonesia in the peaceful uses of nuclear science and technology was advanced today with the signing of a Nuclear Science and Technology Cooperation Agreement.…The Agreement will facilitate cooperation between Australia and Indonesia in research and development of nuclear science and technology for peaceful purposes.
Examples of these uses are: diagnosis and treatment of many cancers; diagnosis and treatment of human thyroid disorders; control of insects, such as fruit fly, which are damaging to crops and livestock; and identification and tracking of environmental pollutants.
The Agreement will provide a mechanism for regular dialogue on nuclear-related issues of common interest to Australia and Indonesia, including nuclear safety issues.
It opens the way for exchanges of information, scientific and technical personnel, education and training programs, joint research and development, and technical consultations.
The Agreement establishes the framework for this cooperation in much the same manner as Australia has Agreements with other countries (eg, Japan, Republic of Korea, US) which establish similar frameworks for cooperation in the peaceful uses of nuclear science and technology.
On 23 September 1997, in the House of Representatives, the Attorney-General, Mr Daryl Williams, answered a question on notice from Mrs Janice Crosio. Extracts of the question and answer follow (House of Representatives, Debates, 23 September 1997, p 8250):
Mrs Crosio—…(3) Is he able to say whether the Federal Government would be required to withdraw from an international treaty prohibiting the legalisation of heroin if a State or Territory government was to legislate to allow for any degree of heroin legalisation; if so, (a) which treaty, (b) when did Australia become a signatory to the treaty and (c) what steps would the Federal Government have to take in order to withdraw the Commonwealth’s participation in the treaty…
Mr Williams—
(3)(a) Any legislation relaxing the law concerning the use of heroin would need to come within the “medical and scientific purposes” exception in the Single Convention on Narcotic Drugs 1961 as amended by the 1972 Protocol Amending the Single Convention on Narcotic Drugs 1961 (the Convention). Article 4 of the Convention is the general obligations article and requires parties to take the necessary and administrative measures to give effect to the Convention. Article 4(c) requires parties to the Convention to limit the production, manufacture, export, import, distribution of, trade in, use and possession of drugs to medical and scientific purposes. (b) The Convention came into force for Australia on 8 August 1975. (c) Australia would not need to take any steps to withdraw from the Convention so long as any relaxation of the law concerning the use of heroin complies with the “medical and scientific purposes” of the Convention. Denunciation is effected by notice to the Secretary-General of the United Nations and takes effect at a specified time thereafter…
On 20 October 1997, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Robert McClelland concerning the production and distribution of narcotics. Extracts of the question and answer follow (House of Representatives, Debates, 20 October 1997, p 9317):
Mr McClelland—…(2) What treaties or conventions has Australia signed or ratified with respect to the production and distribution of narcotics.
…(4) Do Australia’s treaty obligations prevent or restrict the Federal Parliament, or State or Territory Parliaments, from introducing trials to address the drug problem which may involve a position which is less than complete prohibition; if so, will the Government attempt to redress the situation in future negotiations.
Mr Downer—
…(2) Australia is a party to the following agreements with respect to the production and distribution of narcotics:
• The Single Convention on Narcotic Drugs of 1961 — as amended by the 1972 protocol,
• The Convention on Psychotropic Substances of 1971, and
• The United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.
…(4) Medical and scientific research use of narcotic drugs, including clinical trials, are envisaged in a limited way under Articles 2 and 4 of the Single Convention on Narcotic Drugs, 1961, as amended by the 1972 protocol:
for amounts which may be necessary for medical and Article 2, paragraph 5(b) states that “A party shall, if in its opinion the prevailing conditions in its country render it the most appropriate means of protecting the public health and welfare, prohibit the production, manufacture, export and import of, trade in, possession or use of any such drug except scientific research only, including clinical trials therewith to be conducted under or subject to the direct supervision and control of the Party”.Article 4, paragraph (c) states “Subject to the provisions of this Convention, to limit exclusively to medical and scientific purposes the production, manufacture, export, import, distribution of, trade in, use and possession of drugs”.
I am not aware of any proposal to amend these provisions.
On 2 September 1997, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Mark Latham concerning the UNESCO Conference: Recognition of Qualifications Concerning Higher Education in the European Region. Extracts of the question and answer follow (House of Representatives, Debates, 2 September 1997, p 7609):
Mr Latham—Further to his answer to question No. 928 (Hansard, 13 February 1997, page 1016) is he able to say whether an international conference held under UNESCO’s auspices in Lisbon on 8 to 11 April 1997 finalised a Convention on the Recognition of Qualifications concerning Higher Education in the European Region; if so, which states (a) attended the conference and (b) signed the Convention.
Mr Downer—
The international conference held in Lisbon adopted the Convention on the Recognition of Qualifications concerning Higher Education in the European Region on 11 April 1997.
(a) The following delegations attended the conference:
Australia
Liechtenstein
Austria
Lithuania*
Azerbaijan*
Luxembourg*
Belgium
Malta*
Bulgaria*
Moldova
Canada
Netherlands
Croatia*
Norway*
Czech Republic*
Poland*
Cyprus
Portugal*
Denmark*
Romania
Estonia*
Russia
European Community
Slovakia*
Finland
Slovenia*
France*
Spain
Georgia*
Sweden*
Germany*
Switzerland
Greece
The Former Yugoslav Republic of Macedonia*
Holy See*
Turkey
Hungary*
Ukraine*
Iceland*
United Kingdom
Italy
Republic of United States*Kazakstan*
Latvia*
(b) The countries marked with an asterisk in (a) above signed the Convention on 11 April 1997.
On 27 August 1997, in the House of Representatives, the Minister for Transport and Regional Development, Mr John Sharp, answered a question on notice from Mr Peter Morris concerning the UN Convention on Conditions for Registration of Ships. Extracts of the question and answer follow (House of Representatives, Debates, 27 August 1997, p 7200):
Mr Morris-
(1) Is he able to say which nations have (a) ratified the UN Convention on Conditions for Registration of Ships…
(2) What conditions are necessary for the Convention to come into force.
(3) Has Australia ratified the Convention: if not, (a) why not and (b) when will Australia ratify the Convention.
(4) Is he able to provide details on the (a) current…status of the Convention and why some nations have not ratified it.
(5) What consideration has been given to the Convention at the International Maritime Organisation since its formulation.
Mr Sharp—
The answer to the honourable member’s question is as follows: (1)(a) The nations that have ratified and acceded to the Convention are listed in the following table.
…(2) The Convention shall enter into force 12 months after the date on which not less than 40 States, the combined tonnage of which amounts to at least 25 per cent of world tonnage, have become Contracting Parties to it.
(3)(a&b) Australia has not ratified the Convention. No major maritime nation has ratified the Convention and Australia is not presently considering ratifying the Convention.
(4)(a) Fourteen nations have signed the Convention, four nations have ratified the Convention and seven nations have acceded to the Convention. The Convention is not in force.
…(5) This is a Convention developed by the United Nations Conference on Trade and Development and has not been considered by the International Maritime Organisation.
On 4 April 1997, a statement concerning national institutions for the promotion and protection of human rights was delivered by the Federal Human Rights Commissioner, Mr Chris Sidoti, to the 53 session of the Commission on Human Rights. An extract from the statement follows:
…For national human rights institutions in the Asia Pacific region the most significant achievement since the last session of the Commission has been the first regional meeting of our commissions, in Australia in July 1996, and our agreement to establish the Asia-Pacific Forum of National Human Rights Institutions…
I want, however, to express the Australian Commission’s excitement at this development. Our Asia-Pacific Forum is the first (and still only) official regional human rights mechanism in Asia Pacific. Its establishment reflects the commitment of our institutions to mutual support and cooperation to strengthen our organisations and to improve our effectiveness. We look forward to being joined in the near future by other national institutions that comply with the Principles relating to the status of national institutions (the Paris Principles) as they are established.
In saying this I am conscious of the rapid growth in interest by governments in the establishment of national human rights institutions. Of course governments are free to establish whatever kinds of institutions they wish. The Paris Principles, however, provide internationally accepted and endorsed standards by which national institutions can and will be measured. Our Australian Commission accepts these Principles. We are prepared to enter into full cooperative arrangements with institutions that meet those Principles. We are anxious to assist commissions that are committed to reaching those standards. And we offer whatever assistance we can to governments that request it so that institutions now being developed will be established in accordance with those standards.
The Paris Principles have been endorsed by this Commission and by the Economic and Social Council and have been recognised by resolution of the General Assembly. At the meeting here this week of the International Co-ordinating Committee of National Human Rights Institutions, they were considered again and endorsed again, unanimously and without reservation, as the basis for truly effective institutions. We must make every effort to encourage governments to ensure that whatever form they choose for their institutions those institutions accord fully with the Paris Principles.
On 26 August 1997, the Minister for Foreign Affairs, Mr Alexander Downer, made the following remarks concerning the role of ASEAN in an address to the ASEAN thirtieth anniversary seminar:
…PART TWO — ASEAN’s Evolving Role in the Region.Today, ASEAN is a symbol of prosperity and success, at the heart of a region glowing with opportunity and dynamic progress.
Many commentators have focused on ASEAN’s growing economic strength, and the work to integrate the disparate economies through measures such as AFTA and the ASEAN Investment Area.
But parallel to ASEAN’s economic success story, ASEAN countries have worked hard and successfully to develop a political role for the organisation, within the framework of consensus-based decision making and non-interference in each other’s internal affairs.
ASEAN’s successful political framework is best illustrated at the suite of meetings surrounding the ASEAN Ministerial Meeting and the ARF each year. From being a small closed shop, these meetings have become a major foreign policy market place where not just regional but also global players come to make their positions known and to cut new deals.
The informal nature of the side meetings — not to mention the famous song and dance routines — have created an atmosphere which is unique. It is now the most important set of meetings in my international calendar.
One of ASEAN’s greatest achievements has been its capacity to promote stability among its members. ASEAN’s tools are its consensus-based diplomacy, its capacity to draw in the great powers in a non-threatening way, and the clout its economic prosperity has given it, as well as the long experience of many of its leaders.
As a result, South-East Asia, once regarded as one of the world’s most politically tumultuous regions, is now characterised, for the most part, by longstanding stability. ASEAN is now, though, facing what is perhaps its greatest challenge.
ASEAN’s recent expansion to nine members is not only a realisation of the founders’s vision, it is also a turning point for the organisation. It is a moment of truth as it takes on the challenge of using its prosperity and consensus-based cohesion to assist the new members in participating in the ASEAN success story. Laos and Vietnam have already demonstrated their commitment to the ASEAN way, and I am confident that they will move rapidly in co-operation with other ASEAN members.
But the region has two exceptions to the general rule of prosperity and stability: Myanmar, commonly known as Burma in Australia, and Cambodia.
I only want to touch briefly on Burma today, to say that, like the rest of the international community, Australia has deep concerns about the situation in that sad country. I look forward to an improvement in our bilateral relations as and when the situation in Burma improves. I urge other ASEAN countries to endeavour to ensure Burma can contribute to the political as well as economic success of the members of ASEAN.
Cambodia, despite the deferral of its ASEAN membership following the events in Phnom Penh, has given ASEAN an opportunity to reveal its now very substantial diplomatic capabilities.
Very early in the crisis, in its July emergency meeting, ASEAN showed it was willing to play a key role, and over the following weeks, culminating in recent Kuala Lumpur meetings, the rest of the international community agreed that ASEAN was in the best position to be a positive influence.
This is a new direction for ASEAN, a new challenge and a test of its political model, its flexibility and adaptability. I am confident ASEAN will meet this challenge successfully, and will play a positive and constructive role to assist Cambodians find a peaceful, democratic and constitutional resolution to their problems.
Indeed, the recent dramatic events in Cambodia have also highlighted the increasing importance of the ASEAN Regional Forum or ARF. The value of the ARF as a venue for addressing regional tensions was amply demonstrated at its recent fourth meeting in Kuala Lumpur. Discussions about Cambodia and Burma showed that the ARF was prepared to deal with sensitive issues in an open and direct way. The ARF's clear support for ASEAN's Cambodia initiative reflected an institution growing in maturity.
The ARF may in fact prove to be one of ASEAN's most important contributions to regional affairs - if not the most important. It is only four years old, a young organisation by international standards, yet it has already established itself as the primary multilateral forum for the discussion of security issues in the Asia Pacific region.
On 27 January 1997, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments concerning the ASEAN Regional Forum in the course of an address to the Netherlands Atlantic Commission:
…The ASEAN Regional Forum, or 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 East 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 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 allowing observers from other ARF countries to military exercises.
Preventive diplomacy — the second stage of the ARF’s activities — is also showing good potential. At the third ARF meeting in July last year, 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 pleased to say that Australia played an instrumental role in this initiative.
Success with the ARF’s confidence-building and preventive diplomacy stages may lead in future to a third stage — the resolution of conflict through agreed mechanisms.
How and when that could happen is not yet clear, as there are some sensitivities, but I am keen to see the ARF make an early start on dispute resolution and conflict avoidance.
I would point out that the ARF has already produced practical results in only three years through what is becoming an established pattern of effective diplomacy.
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 disputes 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 other levels.
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. That idea makes practical sense in a region where the security dilemma is generally less pressing than in recent European history.
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 and dispute resolution.
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 July 1997, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning bilateral regional security dialogues into which Australia would enter. He made the following comment concerning the role of ARF:
The establishment of such bilateral linkages is encouraged by the ASEAN Regional Forum (ARF) and complements multilateral dialogue on regional security developments.
On 28 August 1998, the Government issue a white paper concerning Australian Foreign policy. The following are extracts from the paper which discuss the role of the ASEAN regional Forum:
…25. The Government’s strategy for advancing Australia’s security interests is based on a hard-headed assessment of the security of the Asia-Pacific region. Its key components are maintaining a strong national defence capability, the alliance relationship with the United States, expanding Australia’s bilateral, regional and multilateral security links, and strengthening Asia-Pacific-wide regional security institutions, of which the ASEAN Regional Forum (ARF) is the most significant…
On 19th November 1997, in the Senate, Senator Nicholas Minchin tabled a statement by the Prime Minister concerning his attendance at the Commonwealth Heads of Government Meeting. Extracts of the statement follow (Senate, Debates, 19 November 1997, p 9143):
…This was my first CHOGM. It reinforced for me the strengths of the Commonwealth:• it spans a broad diversity of nations, developed and developing, from all corners of the globe and representing a quarter of the world’s population;
• its members share a common heritage of language, traditions and values, which forms the basis for the Commonwealth’s ability to reach consensus and work constructively on many issues; and
• it has perhaps the widest grass-roots support amongst its member countries of any international body, with a vast network of associated organisations bringing together people from all walks of life — these personal and professional links are the lifeblood of the Commonwealth.
These strengths underpin the value of the Commonwealth to Australia. The Commonwealth also complements our key bilateral relationships and our focus on regional forums such as APEC and the South Pacific Forum. It is the principal avenue for our engagement with many Commonwealth countries beyond our immediate region. As the third largest financial contributor to the Commonwealth, Australia has a positive role in promoting the economic and social development of those countries…
The outcome on membership was also positive in maintaining the integrity of the Commonwealth by emphasising the common threads which unite an otherwise diverse group. Leaders agreed that, to qualify for membership, countries should have a constitutional association with an existing member, comply with the Harare declaration and accept Commonwealth norms and conventions.
On 7 April 1997, a statement concerning national institutions for the promotion and protection of human rights was made on behalf of the Australian delegation to the fifty-third session of the Commission on Human Rights. An extract from the statement follows:
…Australia is pleased to note that assistance to national institutions is now a core component of the technical cooperation programme of the High Commissioner for Human Rights and the Centre for Human Rights and welcomes the work done, and the very considerable progress made in recent years in Africa, Europe, Latin America and the Asia Pacific.
It is our strong hope that this work will continue in the future and that appropriate steps will be taken to ensure that it is adequately resourced and sustained.
In a media release of 25 September 1997, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comment about what would be discussed with the UN Secretary-General in an upcoming meeting:
…I will also press for the work of the newly appointed UN High Commissioner for Human Rights, Mary Robinson on national human rights institutions to become more of a core activity for her office.
In a media release of 28 February 1997, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments concerning the Indian Ocean Rim Association for Regional Cooperation:
…Australia is pleased to have been a part of the Indian Ocean Rim Initiative since its inception and to be a founding member of the IOR-ARC. Rapid progress has been made to establish the Association since the first meeting of Indian Ocean Rim countries was convened by Mauritius in January 1995 and this progress reflects the strong aspirations for regional economic cooperation of participating countries.…The Indian Ocean region is diverse and includes countries of increasing importance to Australia such as India, South Africa, the dynamic South East Asian economies and significant markets in the Middle East.
The other founding members of the Association are India, Sri Lanka, Indonesia, Malaysia, Singapore, South Africa, Oman, Yemen, Kenya, Tanzania, Mauritius, Mozambique and Madagascar.
The IOR-ARC's goals are regional development, economic and trade cooperation, liberalisation of the flow of goods, services and investment, technology and trade in general, cooperation in developing human resources and, when appropriate, joint pursuit of regional strategies in international fore.
The IOR-ARC will be an outward looking forum for economic dialogue and cooperation, in some respects like APEC, and all founding members of the Association have agreed that the Association will not be a preferential trade bloc. No formal treaty will be required for its establishment.
On 5 February 1997, the Minister for Foreign Affairs, Mr Alexander Downer, in an address to the Royal institute of International Affairs, made the following comments concerning the International Criminal Court.
…A third initiative to which I have lent 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. Its establishment will be one of the Australian Government’s prime multilateral and human rights objectives in the next two years. The world needs an International Criminal Court and Australia will work assiduously in helping to deliver it.
On 24 March 1997, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Mark Latham concerning the International Fact Finding Commission. Extracts of the question and answer follow (House of Representatives, Debates, 24 March 1997, p 2863):
Mr Latham—(1) Which High Contracting Parties to the Geneva Conventions (12 August 1949) and Protocol 1 (6 June 1977) have accepted the competence of the International Fact-Finding Commission to inquire into grave breaches and serious violations of the Conventions and the Protocol, and on which dates did each party do so…
Mr Downer—
(1) The High Contracting Parties to the Geneva Conventions (12 August 1949) and Protocol 1 (6 June 1977) that have accepted the competence of the International Fact-Finding Commission, and the dates of their acceptance, are:
State/Date Algeria-16 Aug 1989
Argentina-11 Oct 1996
Australia-23 Sep 1992
Austria-13 Aug 1982
Belarus-23 Oct 1989
Belgium-27 Mar 1987
Bolivia-10 Aug 1992
Bosnia-Herzegovina-31 Dec 1992
Brazil-23 Nov 1993
Bulgaria-9 May 1994
Canada-20 Nov 1990
Cape Verde-16 Mar 1995
Chile-24 Apr 1991
Colombia-17 Apr 1996
Croatia-11 May 1992
Czech Republic-2 May 1995
Denmark-17 Jun 1982
Finland-7 Aug 1980
Germany FR-14 Feb 1991
Guinea-20 Dec 1993
Hungary-23 Sep 1991
Iceland-10 Apr 1987
Italy-27 Feb 1986
Liechtenstein-10 Aug 1989
Luxembourg-12 May 1993
Macedonia, FY Rep. of-1 Sep 1993
Madagascar-27 July 1993
Malta-17 Apr 1989
Mongolia-6 Dec 1995
Namibia-21 Jul 1994
Netherlands-26 Jun 1987
New Zealand-8 Feb 1988
Norway-14 Dec 1981
Poland-2 Oct 1992
Portugal-1 Jul 1994
Qatar-24 Sep 1991
Romania-31 May 1995
Russia-29 Sep 1989
Rwanda-8 Jul 1993
Seychelles-22 May 1992
Slovakia-13 Mar 1995
Slovenia-26 Mar 1992
Spain-21 Apr 1989
Sweden-31 Aug 1979
Switzerland-17 Feb 1982
Togo-21 Nov 1991
Ukraine-25 Jan 1990
United Arab Emirates-6 Mar 1992
Uruguay-17 Jul 1990…
On 25 June 1997, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments concerning international organisations in the course of the second reading speech for the Foreign Affairs and Trade Legislation Amendment Bill 1997 (House of Representatives, Debates, 25 June 1997, p 6207):
The Foreign Affairs and Trade Legislation Amendment Bill 1997 is an omnibus bill which amends five acts administered by this portfolio:• The International Organizations (Privileges and Immunities) Act 1963 (International Organisations Act) …
International Organisations ActThe bulk of the amendments included in this omnibus bill relate to the International Organisations Act. These amendments update a nearly 35 year old act. They are necessary to keep pace with the increasing number and diversity of international organisations now being established.
An important amendment will allow for the simultaneous entry into force of both the treaty establishing an international organisation and the regulations relating to that organisation. Otherwise Australia could find itself in technical breach of treaty obligations if there were to be a delay in implementing associated regulations. This amendment will be particularly useful when the treaty is unlikely to enter into force until some years after agreement has been reached to establish the organisation.
Another of the more important moves in this bill is to tighten the definition of an international organisation which can be eligible for privileges and immunities. Australia only grants privileges and immunities which are required under our international obligations and commitments. When negotiating privileges and immunities as part of international agreements, this Government takes the line that specific items should be included only where there is a demonstrated functional need. We have to be satisfied that the specific privilege or immunity is necessary for the effective operation of the organisation.
On 24 February 1997, in the Senate, Senator Ian Macdonald incorporated into Hansard the second reading speech for the Multilateral Investment Guarantee Agency Bill 1996. This bill provided for appropriations and the issue of securities to effect Australia’s membership of the Multilateral Investment Guarantee Agency (MIGA) (Senate, Debates, 24 February 1997, p 826):
…MIGA’s purpose is to foster foreign investment in developing countries by providing:• insurance against the risks of currency transfer, expropriation, and war and civil disturbance; and
• advisory services to developing member countries on means of encouraging additional foreign investment.
The decision to join MIGA and to take up the remaining shares allocated to Australia in recent capital increases of the International Finance Corporation and the International Bank for Reconstruction and Development signal the government’s strong interest in the World Bank and its desire to enhance Australia’s relations with the Bank.
…Australia’s experience with PNG has clearly shown the benefits of World Bank involvement. The World Bank Group is able to attach policy conditions to its aid more effectively than can bilateral donors. It has the capacity to establish an effective policy dialogue and assist in the coordination of development assistance from multiple sources and, therefore, to maximise the development effectiveness of aid.
In a media release of 21 October 1997, the Minister for Foreign Affairs, Mr Alexander Downer made the following comments concerning the South Pacific Commission:
…The organisation now has 26 members, including 22 island countries and territories and four of the six original metropolitan countries which set up the Commission — Australia, New Zealand, France and the United States.…Since its inception, the Commission has played an important role in promoting social and economic development in the Pacific. In recent years, it has provided valuable technical assistance and research in plant protection, AIDS and sexually transmitted disease prevention and fisheries assessments. Australia, as the major donor to the Community, providing in excess of A$7 million out of a total budget of A$23 million, announced an agricultural project to combat taro blight and support for the billfish research program.
The Conference reaffirmed the key role that the organisation could continue to play in regional development through promoting the sustainable development and management of natural resources, including agriculture and fisheries, which remains the mainstay of island economies, and in enhancing the prospects of the region’s future generations through a focus on youth, education and training. The Conference also confirmed that the organisation needed to remain flexible to meet the changing needs and future priorities of its members and to meet the challenges of a changing global environment.
Australia released its comments on the report on effective functioning of bodies established pursuant to United Nations Human Rights Instruments. Extracts of the comments follow:
1. The Australian Government welcomes the opportunity to comment on the Report by the Independent Expert, Professor Philip Alston, on Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments (‘the Report’) (E/CN.4/1997/74). 2. The Australian Government supports the human rights treaty body system as a cornerstone of the United Nations’ efforts to promote and protect human rights. The Australian Government acknowledges the considerable achievements to date of that system. However, it recognises that there are difficulties with the current system and, in particular, that the current system of reporting is unsustainable. 3. The Australian Government wishes to see the system operating at its most effective and efficient and therefore supports many of the recommendations contained in the report. In particular, the Australian Government supports reforms to the reporting procedures with the object of streamlining the reporting obligations on States parties, the production of shorter and more focused reports, and encouraging the greater co-ordination and sharing of information between the treaty bodies. Some of the other suggestions put forward by Professor Alston, such as his suggestion to collapse the six treaty bodies into one, require further careful consideration and clearly could only ever be achieved in the longer term. Accordingly, the Australian Government is of the view that priority should be given to those reforms to the existing system suggested by Professor Alston which could be achieved in the short to medium term, while not discounting the value of examining further his suggestions for far-reaching and longer-term reforms. 4. The Australian Government is convinced that adequate resources are essential if the human rights treaty body system is to function effectively and if improvements are to be made to the treaty bodies' existing procedures and practices. For this reason, the Australian Government agrees with the fourth option outlined in the report, that is, to ensure that the treaty bodies are adequately resourced and that priority is given to improving their existing procedures and practices. The High Commissioner for Human Rights needs to ensure that servicing the treaty bodies is a priority and that appropriately expert staff are assigned to this area.Universal ratification
5. The Australian Government supports the goal of universal ratification of the six core United Nations human rights treaties. As confirmed in the Vienna Declaration and Program of Action, human rights are universal, indivisible, interdependent and interrelated. In this regard, every effort should be made to encourage those States which have not yet done so to become a party to all six core human rights treaties. The provision of assistance to states wishing to ratify one or more of these treaties is an important part of the promotion of universal ratification. Australia agrees that, in this context, further consideration should be given to the role of the advisory services program of the Office of the High Commissioner for Human Rights and to how additional resources could be found and best utilised.Documentation
6. The Australian Government welcomes the establishment of the Office of the High Commissioner for Human Rights homepage on the World Wide Web and encourages the greater use of electronic forms of publication and dissemination of documentation, although it acknowledges that not all States have ready access to the Internet. The Australian Government also encourages every effort being made to ensure that human rights information is more widely accessible and better targeted, particularly at grassroots level.Reform of reporting procedures
7. Professor Alston points out that there is a need for much better coordination between the treaty bodies themselves and between the treaty bodies and other United Nations agencies. Clearly, better co-ordination and better sharing of information will not only allow the treaty bodies to work more effectively and in a more integrated fashion, but from a State party's perspective this will avoid a lot of unnecessary duplication of information and a better use of resources. The Australian Government believes there is considerable benefit in the treaty bodies harmonising and streamlining their reporting requirements. 8. Australia sees great potential for the streamlining of reports. There are two alternate options canvassed by Professor Alston: consolidation of reports so that a State party produces a single report which is submitted to each of the treaty bodies; and the elimination of the requirement to produce comprehensive periodic reports. 9. The Australian Government is of the view that a more practical reform is the second of the two options outlined by Professor Alston, that is, the elimination of the requirement to submit comprehensive periodic reports. The Australian Government supports his comments that initial reports should be comprehensive. However, this requirement should not apply to subsequent periodic reports which should instead focus on a limited range of issues identified in advance and which can be tailored to the situation of each State party. The Australian Government supports Professor Alston's suggestion that periodic reports be based upon dialogue with, and more targetted questioning by, the relevant Committee. The Australian Government notes Professor Alston's comments that there are a number of ways by which this could be done. 10. One possible option outlined by Professor Alston is for the relevant Committee, after inviting information from a wide range of sources, to draw up a list of questions on notice to be submitted to the State party. The State party would then be required to provide written answers to those questions to the Committee in advance of the appearance of the State party's delegation before the Committee. The Australian Government endorses the benefits of such an approach which are identified by Professor Alston. However, it is clear that much greater secretariat support would need to be provided to the Committees to enable such an approach to be implemented effectively. 11. Irrespective of whether this approach is adopted, the Australian Government believes that there are significant advantages in the relevant Committee identifying issues to be raised with the delegation presenting the report well in advance of the hearing. In this regard, the Australian Government would encourage the other Committees to adopt the practice of the Committee on the Rights of the Child whose pre-sessional working group draws up questions on notice at the session immediately preceding that at which the State party's report is to be considered. These questions are then provided to the State party together with a request that written answers to the questions be provided. This practice allows the State party sufficient time to gather the information necessary to respond to the questions and also the opportunity to ensure that persons with relevant expertise are included on the delegation to appear before the Committee. It also helps to ensure that issues identified as relevant by the Committee will be fully addressed. 12. An alternative approach would be to draft reports which focus on particular issues. Those issues would be identified by reference to the comments and concluding observations of a Committee on an earlier report. A State party could also provide information to the Committee on significant developments which have occurred in the reporting period. Cross-referencing to relevant material contained in other periodic reports could be done so as to avoid unnecessary duplication. If this approach were adopted, it would still be open to the Committee to draw up questions on notice in advance of its consideration of the State party's report. Reforms of this nature should result in the production of shorter, more focused reports and also reduce delays in the production and consideration of reports. 13. The Australian Government recognises that there may be potential advantages in the submission of a single consolidated report, the first option mentioned above. These include: the presentation in a single document of a comprehensive picture of the overall human rights situation in the State party; the reinforcement of the indivisibility of the human rights recognised in the major human rights treaties; the potential to resolve overlapping issues between the different Committees; and, from a resource perspective, the production of one report only, rather than several. Nevertheless, there would appear to be certain disadvantages with the proposal. For example, there is a risk that rights relating to specific groups, such as women, children and racial and ethnic minorities, would receive less detailed consideration in a consolidated report. The Australian Government is of the view that a single consolidated report would only be effective if a uniform reporting period is adopted.Harmonisation of reporting cycles
14. The Australian Government believes that there would be benefit in harmonising the reporting cycles under each of the six human rights treaties, particularly if the option of submitting a consolidated report is adopted by the treaty bodies. Even if separate reports to each of the treaty bodies are to be maintained, the Australian Government sees benefit in amending the widely different reporting cycles in a way to assist States parties to properly discharge their reporting responsibilities.Merging of the six treaty bodies
15. The Australian Government believes that, while the suggestion to merge the six individual treaty bodies into one is worth considering, it clearly requires further detailed examination.Communications procedures
16. The Australian Government notes that little attention is paid to the communications procedures in the report, despite the importance of these procedures and the increasing communications workload of the Human Rights Committee, the Committee Against Torture and the Committee on the Elimination of Racial Discrimination, and the proposals for optional protocols to provide for individual communications procedures under the International Covenant on Economic, Social and Cultural Rights and the Convention on the Elimination of All Forms of Discrimination Against Women. The Australian Government welcomes the efforts of those Committees mandated to consider communications from individuals to improve their rules of procedure and working methods and is seeking to pursue further reforms to the procedures of those Committees through a direct dialogue with those Committees.Amending the treaties
17. The Australian Government agrees that there should be steps taken to simplify the procedure for amending technical or procedural provisions in respect of future and current treaties and endorses the recommendation that an opinion be sought from the Legal Counsel on more innovative approaches to dealing with existing and future amendments to the technical or procedural provisions of the human rights treaties.Quality of concluding observations
18. The Australian Government endorses Professor Alston's comments on the need to further improve the quality of "concluding observations" to ensure that they are precise, clear and detailed. The decisions of those treaty bodies which consider individual communications could be similarly improved. Often issues raised in a communication are dealt with in a cursory fashion or not at all and, on occasions, little reasoning or justification is advanced for a particular view reached by a Committee. The lack of adequate reasoning or justification makes it difficult for States parties to review their individual laws and practices. The clarity and detail of the concluding observations would become even more of an issue if periodic reports were to be based on the comments and concluding observations of a Committee (see paragraph 12, above).Conclusion
If the achievements of the treaty body system are to be continued and built on into the next century, the problems identified in the Alston Report need to be addressed and constructive suggestions for reform implemented. The Australian Government therefore welcomes the reforms undertaken to date and, in particular, the efforts of the treaty bodies in addressing these problems. The Australian Government is anxious to ensure that the momentum for reform is not lost and it will continue to work to seek constructive and practical improvements to the operation of the treaty body system.
On 28 August 1998, the Government issued a white paper concerning Australian Foreign policy. The following are extracts from the paper which discuss the role of the United Nations:
…6. Australia must be realistic about what multilateral institutions such as the United Nations system can deliver. International organisations can only accomplish what their member states enable them to accomplish. If the reach of the UN system is not to exceed its grasp, it must focus on practical outcomes which match its aspirations with its capability.
In a media release of 18 July 1997, the Minister for Foreign Affairs, Mr Alexander Downer made the following comments concerning reform of the United Nations:
The Government is a strong supporter of United Nations reform and, therefore, welcomes the efforts of the Secretary-General of the United Nations, Kofi Annan, to equip the Organisation better to face the challenges of the next century.Kofi Annan's recent election has provided a critical window of opportunity for long overdue reforms to be implemented to make the Organisation more efficient and effective and to focus its activities and resources on priority areas of activity. Reforms are particularly necessary in the Secretariat of the Organisation.
I welcomed the initial reforms the Secretary-General introduced earlier this year and similarly welcome the promising package of 'track two' proposals he announced yesterday at the UN Headquarters in New York. Bold measures are needed to reinvigorate the Organisation and we will, therefore, be studying the proposal in detail.
In particular I welcome the basic moves on Secretariat restructuring, the decision to reduce permanent staff numbers in New York and the continuation of the negative growth budget.
On 3 October 1997, the Minister for Foreign Affairs, Mr Alexander Downer, made a statement to the 52nd General Assembly of the United Nations, New York concerning reform of the United Nations. Extracts of the statement follow:
…Today I wish to concentrate on three issues in particular:• reform of the United Nations;
• reorienting our approach to human rights so as to promote cooperation and institution building, creating durable structures to give substance to the goals set out in the UN Charter, the Universal Declaration of Human Rights and other international human rights instruments; and
• reconfiguring the traditional UN groups to reflect better the regional groupings of the contemporary world.
In dealing with reform, my purpose is to build a world for the next generation and I am inspired by the hope and aspirations of the next generation.
…Mr President, Australia wants to work with you, and with the Secretary-General and all members of the United Nations, to ensure that by the end of this General Assembly further, substantive progress has been made in the three critical areas of reform: financial reform and resolution of the crisis surrounding the UN budget and scale of assessments; reform of the Security Council and reform of the organisation.
Reform for accountability
When I made my first address to this Assembly last year, I stressed the need to move ahead urgently with the reform and reinvigoration of this important organisation, to ensure its future effectiveness and relevance. This year reform has been given real impetus by the new Secretary-General, whose appointment Australia warmly welcomed. Both in March and in July this year he announced significant organisational reforms aimed at the renewal of this body. I have enthusiastically supported these initiatives. We must now build on them.
We share the Secretary-General's conclusions about the shortcomings of the United Nations. The Organisation's mission, as enshrined in the Charter, has been repeatedly reaffirmed and remains valid today. But the machinery and the working methods to pursue that mission need thorough review and revision. We agree that there is too much fragmentation of structures, too much rigidity within bodies and too much emphasis on bureaucracy and process.
I would like to highlight in particular the reforms suggested to the United Nations structures and to the Secretariat. The integration of twelve Secretariats and entities into five, and the proposed consolidation of five intergovernmental bodies into two are particularly welcome. They will help streamline and remove unnecessary bureaucratic structure and duplication from the Secretariat. It is an approach we commend also to the specialised agencies as member nations seek to streamline and even merge some of these bodies.
Important steps are proposed in reforming the way the Secretariat works. We applaud the removal of 1000 staff posts and the cutting of administrative costs by one-third to which the Secretary-General has committed himself. We also wish to see all secretariat staff move to fixed term renewable contracts to allow for greater employment flexibility in the organisation. We support the introduction of a merit based promotion system and performance appraisal in the place of a system where seniority plays a disproportionate role. We also encourage management to improve training opportunities for junior as well as senior staff.
These reforms will not only make the United Nations work better, but also provide real savings. These savings will be available for programs, programs which benefit all of us, but especially support the developing members of the United Nations. Thus it is a package which is in the interests of all, and deserves support from all. We believe the Assembly needs to provide broad endorsement of the package as a whole early in this session to allow the reform process to proceed, even if some of the details are negotiated subsequently.
UN finances
But I acknowledge that for reform to succeed and for the United Nations to carry out its mandate adequate resources must be provided to run the Organisation. Australia continues to meet all its financial obligations in full and on time and without conditions and seeks the same commitment from all our fellow members. We continue to believe that the negotiation of financial reforms would be facilitated by early settlement of all unpaid contributions. The adoption of a responsible negative growth budget and a new scale of assessments, which accurately reflects relative shares of national income and thus the principle of the "capacity to pay", will also be key issues at this year's session. It is important that result ensures the burden of supporting the Organisation falls fairly on member nations.
Security Council reform
Australia remains committed to an expanded, more representative and transparent Security Council, better able to tackle the challenges of the 21st Century. It should include as permanent members important powers able to make a major contribution to international peace and security, particularly at this time Japan and Germany. It should also include permanent seats for under-represented regions as well as additional non-permanent seats.
Middle powers such as Australia have made a significant contribution to the United Nations since its foundation, notably in disarmament, development, peacekeeping, and human rights. We are concerned that the interests of small and medium-sized countries not be forgotten in this exercise. In this context, and because of our long-standing historical concerns about the veto, we would like to see an expansion of the Council accompanied by a new understanding on the application of the veto. We would also support a review of any new arrangements after 10 years so that countries like Australia and all other members of the international community have a further opportunity to examine the size, composition and working methods of the Council.
…Reconfiguring the Groups
Before concluding, Mr President, I would like to address the third and final reform issue I said I would be raising. Australia believes there is an element missing in the present discussion on reform. I am referring to the existing electoral group system, which dates back to the last major reform of the group system in 1963. Since then the size of the United Nations has nearly doubled, mostly with new nations from Africa, Asia and the Pacific.
The present configuration contains many conspicuous anomalies and inequities which constitute powerful arguments for reform. The substantial disparities in the size of the various groups and the inadequate level of representation available to the many sub-regions, including in our own geographical region of East Asia and the Pacific, has long been an evident source of frustration. Comparisons between the size of the African and East European Groups (embracing 53 and 21 members respectively) demonstrate the legitimacy of dissatisfaction with the status quo in this regard.
This widespread sense of under-representation is exacerbated by the social and political diversity of the larger groups and the limited extent to which a single member can be said to represent the group as a whole. While we have our own ideas, Australia does not believe it would be helpful to prescribe any rigid formula for reconfiguration of the group system. We acknowledge this is a sensitive issue on which there are many views. But I believe it is time we began to think about and discuss this matter, as we seek to equip the United Nations for the future.
On 5 December 1997, the Attorney-General, Mr Daryl Williams issued a press release recording comments that he had made that day to the Conference on Implementing International Human Rights. Extracts of the release concerning the United Nations reporting requirements follow:
…I have also outlined recommendations which Australia will be making to the United Nations to overcome some of the cumbersome reporting requirements that now exist. Such reforms will improve the committees’ ability to assess the reports they receive and to provide a more accurate assessment of human rights activities around the world.It is widely acknowledged that current reporting requirements place a significant burden on those compiling reports and on the Committee when assessing the reports.
As at June 1996, there were 115 reports to the Committee under the International Covenant on Civil and Political Rights that were overdue. There are 134 countries which are party to the covenant…
On 13 May 1997, in the Senate, Senator Campbell made the following comments concerning the World Health Organization in the course of the Government’s response to the report of the Joint Standing Committee on Foreign Affairs, Defence and Trade entitled Australia’s relations with Thailand (Senate, Debates, 13 May 1997, p 3192):
…Recommendation 34:That the Australian Government exert pressure on the World Health Organization:
• to realign its regional boundaries so that Australia and its neighbours in South East Asia, such as Thailand, Laos, Cambodia and Indonesia are included in the same zone; and
• in conjunction with the United Nations High Commission for Refugees, to develop and implement programs directed towards alleviation of the health problems of:
• Thailand’s nationals and refugees within its borders; and
• its immediate neighbours Burma, Laos and Cambodia.
The WHO has two regional groupings that incorporate countries in the Asia-Pacific region. Australia is a member of the Western-Pacific Region along with some 32 others including Cambodia and Laos, while Thailand and Indonesia are members of the neighbouring South-East Asian Region with eight others. The regional structure of the WHO is governed by Article 44 of the Constitution of WHO, which states that:
The Health Assembly shall from time to time define the topographic areas in which it is desirable to establish a regional organisation.
(b) The Health Assembly may, with the consent of a majority of Members situated within each area so defined, establish a regional organisation to meet the special needs of such an area. There shall not be more than one regional organisation in each area.
All countries are assigned to a region. Where a country wishes to transfer from one region to another, as occurred in 1995 when Mongolia transferred from the South-East Asian Region to the Western-Pacific Region, the transfer is authorised by a vote of the World Health Assembly. This is the principal governing body of WHO made up of all member states.
There is currently a review under way of the Constitution of the WHO including the issue of membership and composition of the WHO regions. A report on progress of the review will be presented to the World Health Assembly in May 1997.
In the past, it has proven difficult to alter the established regional groupings, given the interests at stake, particularly in terms of representation on the Executive Board and other representational entitlements which are allocated to the regional groupings. Any redistribution of regional boundaries would need to be undertaken on a global basis in the context of the wider review of the WHO.
The Australian Government will continue to support changes to the WHO which increase its efficiency and effectiveness in program delivery, enabling the WHO to maintain its position as the pre-eminent body in international health in the 21st Century.
On 23 December 1997, in a joint media release announcing the appointment of a new ambassador to the World Trade Organisation (WTO) the Minister for Foreign Affairs, Mr Alexander Downer, and the Minister for Trade, Mr Tim Fischer made the following comments concerning the WTO:
…The WTO was established on 1 January 1995 as the successor organisation to the General Agreement on Tariffs and Trade (GATT) and is responsible for the administration of the agreements which govern the multilateral trading system.…The WTO is a dynamic and growing organisation. Over 30 countries are currently negotiating to join the organisation which underlines the importance attached to a credible and enforceable multilateral trading system. At a time of turbulence and uncertainty in international financial markets and increased global economic interdependence this rules-based system is essential to Australia’s economic growth and sustained prosperity.
On 7 July 1997, the Minister for Foreign Affairs, Mr Alexander Downer, addressed the “Global Emissions Agreements and Australian Business” Seminar in Melbourne. Extracts of the text of the address follow:
…At the recent Denver Summit and UNGASS meeting we saw outcomes that were not only encouraging from the viewpoint of Australia’s interests but have also strengthened our own resolve.We were heartened by the language of the UNGASS Declaration calling for “realistic and equitable” greenhouse gas emission targets. This is precisely the outcome that Australia is calling for, and working towards, at Kyoto. Clearly then we have some support and understanding for our concerns and position. Several influential American legislators are also on side as we saw during the Prime Minister’s recent visit. But we still have a long way to go. The negotiating path that lies ahead of us is going to be a difficult one.
Another thing we are seeing coming through in meetings like the Denver Summit and UNGASS is the broad range of interests that are at stake in the climate change negotiations. Certainly our own focus is on Australia’s interests. I make no apology for that. Because the Europeans, the Americans, indeed everybody involved in these negotiations are doing exactly the same. All of us want the same thing: a good outcome for the global environment. But it will only be a good outcome if it serves everybody’s interests.
…The outlook were we to go along with the kind of approach that the European Union wants, but we oppose, is really quite worrying. Let me give you an idea of the magnitude of the costs that we will have to bear. ABARE, for example, estimates the cumulative loss to the Australian economy by the year 2020 would be $150 billion. Resultant job losses would run into the tens of thousands.
While some may argue about the seriousness of this we believe it is significant and disproportionate relative to others. Looked at another way, we would end up losing more than we gained in the hard-fought Uruguay Round outcome. That is a price in lost income and lost jobs that Australia simply cannot afford to pay, nor should we have to.
It should be said that if others accepted the EU approach but Australia did not then it would still have a negative impact on our economy. The resulting regional dislocation in places like the Illawarra and Hunter in NSW, the Bowen Basin and Gladstone in Queensland, Geelong and Latrobe Valley in Victoria, Port Pirie in South Australia, and the Kwinana region of Western Australia would be significant.
Ours is an especially energy-intensive economy. We have a relatively rapid rate of population growth. Our trade linkages with developing economies particularly in East Asia are strong. Therefore, the only target that Australia could agree to at Kyoto would be one that allowed reasonable growth in our greenhouse emissions.
The reality is that because we are a relatively small and highly specialised economy we cannot afford the cost involved in taking on a disproportionately high share of the global greenhouse abatement effort. It would have a negative impact on every sector of the Australian economy. This includes energy, transport, agriculture and the residential sector.
The competitiveness of Australia's energy-intensive non-ferrous metals and steel industries would decline as a result of higher power costs. Moreover, given our reliance on fossil fuels and fossil fuel intensive exports Australia's export revenues, and hence national income, would significantly decline.
Such a cost to Australia would be disproportionate to any environmental benefit gained. At best, the flat rate outcome favoured not only by the EU but the US as well would only have a marginal impact on the growth of global emissions. For all these reasons, we strongly advocate differentiation, not just for ourselves but for everybody.
Flat rate targetsAt this stage, the US has not come up with a specific target. The Europeans have. They are proposing in these negotiations a 15% reduction on 1990 emission levels by 2010 for the EU collectively and other OECD countries. Such an ambitious target is unrealistic and unachievable, even for the EU. It is hard to believe that the EU’s proposal is really anything more than a negotiating tactic to make them look ‘green’. It has little to do with what the EU thinks it can achieve. Nor does it in any way reflect upon any EU’s performance in delivering on the commitments it made at the original Earth Summit in Rio five years ago.
Only two EU countries are expected to meet the implied Rio commitment of reducing their emissions to 1990 levels by 2000. In both cases these are due to national circumstances unrelated to greenhouse. The UK because of its switch to natural gas following the closure of inefficient coal mines. And Germany because of the collapse of East German industry. Following reunification East German emissions fell by almost 50%.
According to the European Commission, had it not been for this East German factor the EU’s total carbon dioxide emissions would actually have risen 9% above 1990 levels by the year 2000. As it is the increase will be between 3% and 5.4%.
The EU knows full well that a 15% reduction by 2010 is simply not a realistic target. Nor was it ever meant to be. It is a negotiating figure that the Europeans will not have to meet given that the Americans would not agree to a global, flat-rate target of that magnitude.
Our sense is that there is growing pressure on the US Administration to carefully examine the costs that greenhouse gas abatement would impose on the American
economy. The fact that they have not yet put forward a specific target tends to bear this out. Moreover, there was a “Sense of the Senate” resolution brought forward a couple of weeks ago that called for a full analysis of any protocol aimed at reducing greenhouse gas emissions.
Australia cannot accept a flat-rate target approach. Mr Howard made this very clear in his most recent meetings with President Clinton and Prime Minister Blair. Not only does it have the potential to do us harm economically, but it could also unnecessarily damage the global economy as a whole. The costs both nationally and globally would be higher because a flat-rate target does not take into account differing national economic circumstances. It also ignores economic interdependence.
Australia’s case helps to illustrate this point. We have strived to promote a level playing field in the global economy. We firmly believe that the global economy will function most efficiently, and to everybody’s benefit, if we all make the most of our respective comparative advantages. We should also be complementing each other’s comparative advantages, as Australia is doing. The result in our case is that the Australian economy has become a highly specialised resource processor, part of a regional production chain, linked to Asia-Pacific growth.
The benefits of such specialisation are threatened by flat-rate targets of the kind the EU, and US, would like to see. This specialisation has underpinned much of the rapid growth in global and regional trade and investment witnessed in recent decades. This growth has benefited all our economies, businesses and communities.
Efficient specialisation should be encouraged. Energy intensive industries have located in Australia due to the availability of our abundant fossil fuel resources and efficient technology. If stringent emission controls are introduced in Kyoto these industries will relocate to non-OECD or developing countries with no emission abatement commitments and less efficient, less environmentally acceptable technology.
This phenomenon, known as ‘carbon leakage’, would undermine the very objective of setting targets for one group of countries. It would be achieved at great cost to Australia but would represent little gain for the global environment.
In our view, much of this damage can be avoided.
DifferentiationThis is an appropriate point to expand the equity theme that I briefly introduced earlier. Our position, and the case we are arguing in the climate change negotiations, is based on a concept that we as Australians can readily identify with, and accept. And that is the idea that while we should all be pulling our weight in tackling global warming, nobody should be worse off for doing so. In other words, an Australian should not have to shoulder more of the economic burden for greenhouse gas abatement than say a European, American or Japanese. We are talking about an ‘equality of effort.’
The best means for doing this is through differentiation. It is by far the fairest approach we can take to address a global problem: not just our problem but everybody’s problem. Therefore if everybody does their fair share based on an equitable arrangement like the one the Europeans have come up with for themselves we can achieve a meaningful environmental outcome at Kyoto.
That is why Australia is arguing for differentiated targets that take into account each country’s particular circumstances, economic costs and available opportunities to limit emissions as long as no-body is relatively worse off as a result. We are not looking for a special deal just because we want to negotiate our own target. We are not seeking anything new.
In effect, Australia wants nothing more than the arrangement the 15 European Union countries propose for themselves. They have accepted differentiation internally within the EU. They recognise that not all EU countries have the same capacity to reduce their emissions. Larger cuts made by countries capable of doing so are to be traded off against those making smaller reductions.
The EU accepts that the Economies in Transition (Eastern Europe and Russia) should have differentiated targets. 27 out of the 35 Annex I countries are therefore to be allowed access to differentiated targets.
It appears manifestly unfair to deny the remaining 8 Annex I countries, including Australia, access to differentiated targets. As the Prime Minister commented during his recent UK visit, Australia wants to have the same capacity as individual members of the European Union to differentiate targets for greenhouse gas emissions.
Let me stress again that if we are to maximise our efforts in tackling global warming then differentiation is the best and fairest means. Australia recognises this. We have submitted detailed proposals on negotiating such an outcome before Kyoto. The Europeans seem to recognise the merits of this approach for themselves but for nobody else. Yet the EU experience, the internal burden-sharing arrangement the Europeans have agreed to, suggests that differentiation is critical if collective emission reductions are to be maximised.
Australia wants a solution that deals with the dynamics of a global economic problem. Climate change is a global problem requiring a global solution. It is in our national interest to find a solution that is effective and deals fairly with everybody. Differentiation achieves this. It is the key to making the Kyoto agreement effective over the long term, by getting countries progressively on board in making commitments that are commensurate with their national circumstances.
…The Government accepts the precautionary principle contained in the Framework Convention on Climate Change that the lack of full scientific certainty should not be used as a reason for postponing action. Unless credible evidence appears to the contrary, it would be remiss of my Government, or any other government, to ignore the risks associated with global climate change.
Moreover, as part of our obligations under the Convention, which Australia ratified in 1992, a number of reforms and measures to reduce the growth in our emissions have been taken.
On 30 October 1997, in the Senate the Minister for the Environment, Senator Robert Hill, answered a question on notice from Senator Robert Brown concerning hazardous waste. Extracts of the question and answer follow (House of Representatives, Debates, 30 October 1997, p 8542):
Senator Brown—(1) Will the Australian Government stop the dumping of hazardous waste in developing countries by ratifying the Basel Ban in domestic legislation, without reservation…
Senator Hill—
(1) The Australian Government has not approved any arrangement to export hazardous waste to developing countries since the amendments to the Hazardous Waste (Regulation of Exports and Imports) Act 1989 came into force in December 1996.
If any application was received to dispose of hazardous waste in a developing country, it would be subject to the Basel Convention’s requirements for environmentally sound management and for consent to be granted by the country of import. These requirements are incorporated in Australian legislation under the Hazardous Waste Act.
As a separate matter, the Australia Government will make a decision, after appropriate consultation, on whether or not to ratify the ban amendment when the technical aspects of the Basel lists are finalised. It is only when these lists have been adopted by the Conference of the Parties that there will be international agreement on what wastes are covered by the Convention and the ban amendment…
On 27 May 1997, in the Senate, the Minister representing the Minister for Foreign Affairs, Senator Robert Hill, answered a question on notice from Senator Diane Margetts concerning the Convention on Supplementary Funding for Transboundary Nuclear Damage from Nuclear Incident at a Civil Nuclear Power Plant. Extracts of the question and answer follow (Senate, Debates, 27 May 1997, p 3811):
Senator Margetts—With reference to the eleventh anniversary, on 26 April 1997, of the 1986 Chernobyl disaster involving a subsequent 200-fold increase in regional childhood thyroid cancers, a 160 per cent increase in the incidence of birth defects, a 45 per cent increase in breast cancers and the contamination of large parts of eastern and western Europe:
…(2) What would the effect of this Convention be in the case of a nuclear accident or mistake in a south-east Asian civil nuclear power plant which sent a cloud of radioactive waste over Australia, or discharged nuclear contamination into Australian waters…
Senator Hill—…(2) The draft Convention will supplement and enhance the provisions of the Vienna and Paris Conventions, including by increasing compensation for transboundary harm, and providing compensation for environmental damage.
Both the Vienna and Paris Conventions are based on the exclusive and strict liability of the operator of a nuclear installation, on limitation of liability in amount and in time, and on the jurisdiction of the courts of the state within whose territory the nuclear installation is situated. They provide for a minimum amount of compensation and for financial coverage through insurance or other financial security. In the event of a nuclear incident involving a nuclear power plant in the region following the entry into force of the draft Convention, if Australia and the state in which the accident occurred were parties to the Convention and Australian interests were affected by radioactive material released as a result of the incident, Australia would be able to claim compensation for transboundary harm falling within the definition of damage outlined in the Convention. Importantly, this would include compensation for damage to the environment.
On 24th June 1997, in the Senate, Senator David Brownhill made the following comments concerning the Convention on Nuclear Safety in the course of the Government’s response to the Joint Standing Committee on Treaties’ fourth report (Senate, Debates, 24 June 1997, p 4984):
…The only formal recommendation was 1.20: “The committee recommends that Australia takes action in due course to propose that the Convention on Nuclear Safety be amended to include research reactors.” Australia ratified the Convention on 24 December 1996, and it entered into force for Australia on 24 March 1997.Along with other countries involved in the negotiation of the Convention on Nuclear Safety, Australia has taken the view that a nuclear safety incident involving a research reactor would be unlikely to have international consequences warranting coverage in the Convention. Nevertheless, the government takes note of the committee’s recommendation that Australia propose the amendment of the Convention to include research reactors, and will consider in due course whether any such action is appropriate in the light of our experience with the Convention’s operation. In this context, it should be noted that the Contracting Parties have yet to hold their first review meeting, at which proposed amendments could be discussed. The first review meeting must take place before 24 April 1999.
In a media release of 16 May 1997, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments concerning the strengthened protocol adopted by the International Atomic Energy Agency’s Board of Governors:
…The model protocol contains measures to enhance the IAEA’s ability to detect undeclared nuclear activities, principally through new technical methods such as environmental sampling techniques, improved access to nuclear-related sites, and improved availability and analysis of nuclear-related information.
On 6 February 1997, in the House of Representatives, the Minister for Trade, Mr Tim Fischer, answered a question without notice concerning a possible challenge of the Australian Wheat Board’s marketing role in the World Trade Organisation from Mr Taylor. Extracts of the question and answer follow (House of Representatives, Debates, 6 February 1997, p 350):
Mr Taylor—…I refer the minister to his trade statement yesterday in this place and media reports of initial reaction from the United States. Can the minister inform the House of the validity of reports that the US intends to challenge the marketing role of the Australian Wheat Board under the World Trade Organisation guidelines? What is the government doing in response to this development?
Mr Fischer—…There was a particular comment made by the United States spokesman, as part of the Outlook conference and parallel with the tabling of the trade outcomes and objectives statement, which said that the single desk selling of the Australian Wheat Board would be under review again and would be taken to the WTO by the United States. I say simply in respect of that: I will defend the right of Australia to decide upon a single desk selling mechanism for the Australian wheat industry or, as maybe required from time to time, with regard to other industries as may be determined by the government.
I note that my colleague the Minister for Primary Industries and Energy, John Anderson, when he met with US Secretary for Agriculture, Dan Glickman, in Rome late last year, took a similar position. He discussed it there. I discussed it with US interlocutors in Manila in the APEC setting and in other settings, and the position is very clear: the United States itself has investigated the Australian wheat industry, most recently by the General Counting Office of the US, which is an independent arm and one of some note. It found that there was absolutely no risk of citing the Australian wheat industry and its single desk selling power to the World Trade Organisation and that there was no subsidy involved.
Further to that, a former senator of the US Congress, Senator Boren, led a subcommittee investigation which made a similar finding. So the single desk selling power in respect of the Australian wheat industry is a mechanism which is fair, which is transparent, which is above board, which helps hard-pressed Australian wheat growers who have no subsidy whatsoever to do battle in a very competitive circumstance, and which helped them forge some additional sales in recent weeks to India, Iran and other places in the Middle East and elsewhere — in fact, almost a record selling program with the huge harvest that they have to deal with at this time.
On 13 February 1997, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Mark Latham concerning the Chemical Weapons Convention. Text of the question and answer follow (House of Representatives, Debates, 13 February 1997, p 1019).
Mr Latham—(1) Will the ratification by Hungary, the 65th state to become a party, bring into force the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Paris, 13 January 1993).
(2) Which states have signed but not ratified the Convention.
Mr Downer—(1) On 31 October 1996, Hungary became the 65th State to ratify the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction — also known as the Chemical Weapons Convention (CWC). This fulfilled the conditions required to trigger a 180 day countdown to entry into force of the Convention. (Article XXI of the treaty stipulates that entry into force shall occur 180 days after the date of deposit of the 65th instrument of ratification.) Entry into force will thus occur on 29 April 1997, thereby advancing significantly a long-standing objective of Australia’s foreign and security policy — the achievement of an effectively operational CWC treaty regime.
(2) As of 6 December 1996, 160 countries had signed and 66 countries had ratified the CWC. The following states have signed but not yet ratified —
Afghanistan, Azerbaijan, Bahamas, Bahrain, Bangladesh, Belgium, Benin, Bolivia, Brunei, Burkina Faso, Burundi, Cambodia, Cape Verde, Central African Republic, Chad, China, Colombia, Comoros, Congo, Cuba, Cyprus, Djibouti, Dominica, Dominican Republic, Equatorial Guinea, Estonia, Gabon, Gambia, Ghana, Guatemala, Guinea, Guinea Bissau, Guyana, Haiti, Holy See, Honduras, Iceland, Indonesia, Iran, Israel, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Laos, Liberia, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Malaysia, Mali, Malta, Marshall Islands, Mauritania, Micronesia, Myanmar, Nauru, Nepal, Nicaragua, Niger, Nigeria, Pakistan, Panama, Philippines, Qatar, the Republic of Korea, Russia, Rwanda, Saint Kitts and Nevis, San Marino, Senegal, Sierra Leone, Singapore, Slovenia, St Lucia, St Vincent and the Grenadines, Thailand, Togo, Tunisia, Turkey, Uganda, Ukraine, United Arab Emirates, United Republic of Tanzania, USA, Venezuela, Vietnam, Western Samoa, Yemen, Zaire, Zambia, and Zimbabwe.
On 30 April 1997, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in a media release concerning the chemical weapons convention:
I warmly welcome the entry into force on 29 April of the Chemical Weapons Convention (CWC). This historic moment fulfils a long-standing objective of Australia’s foreign policy.The Convention is the first comprehensively verifiable multilateral treaty that bans an entire class of weapons. It prohibits all aspects of chemical weapon development — production, acquisition, possession, transfer and use — and provides for the destruction of existing stocks and production facilities.
Australia has taken a close interest in the CWC because this treaty directly affects our national security. The Convention promises the abolition for all time of a weapon of mass destruction which has killed tens of thousands of people this century, including many Australians who were the victims of these weapons in World War I. The CWC also represents the best means of preventing the spread of chemical weapons to our region.
The speed with which the Convention has gained support is unprecedented in international non-proliferation and disarmament agreements: 165 countries have signed it and 87 have ratified since the Convention was opened for signature in 1993. I am particularly pleased that a wave of countries, including China and the Republic of Korea, have ratified since the United States did so on 25 April. Importantly, the states which have ratified include all the major global economies except Russia, and I am glad to note that President Yeltsin has submitted the treaty to the Russian Parliament. Australia will continue to urge Russia to ratify the Convention as soon as possible.
…The CWC will be implemented internationally by the Organisation for the Prohibition of Chemical Weapons (OPCW) based in The Hague…
On 26 November 1997, in the House of Representatives the Parliamentary Secretary to the Minister for Foreign Affairs, Mrs Kathy Sullivan, made the following comments in the course of the second reading speech for the Chemical Weapons (Prohibition) Amendment Bill 1997 (House of Representatives, Debates, 26 November 1997, p 11338):
The Chemical Weapons (Prohibition) Amendment Bill 1997 amends the Chemical Weapons (Prohibition) Act 1994 in order to implement refinements to the administration of that act to rectify certain problems identified during its initial implementation. The Chemical Weapons (Prohibition) Act gives effect to Australia's obligations as a party to the Convention on the Prohibition of the Development, Production and Stockpiling and Use of Chemical Weapons and on their Destruction, usually referred to as the Chemical Weapons Convention. The convention bans the development, production, acquisition, stockpiling, retention, transfer and use of chemical weapons and provides for the destruction of all existing stocks of chemical weapons.
Australia has long supported the Chemical Weapons Convention as a key international instrument in the fight against the spread of weapons of mass destruction and was the sixth country to ratify it on 6 May 1994, following the passage of the Chemical Weapons (Prohibition) Act three months earlier. Three years later, on 29 April of this year, the convention entered into force and less than 27 days later Australia's initial declarations were submitted to the Organisation for the Prohibition of Chemical Weapons.
The Chemical Weapons Convention requires Australia to make regular declarations concerning activities with chemicals listed in its schedules and activities producing discrete organic chemicals. The Chemical Weapons (Prohibition) Act allows the Chemical Weapons Convention Office in the Department of Foreign Affairs and Trade to collect, through a system of permits and notifications, from chemical facility operators the information required to compile these declarations. National inspectors appointed under the Chemical Weapons (Prohibition) Act have the power to inspect chemical facilities to ensure compliance with obligations imposed by the Act. Certain facilities are also subject to inspection by the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons.
On 23 July 1997, the Minister for Foreign Affairs, Mr Alexander Downer issued a media release concerning the Inhumane Weapons Convention:
I am pleased to announce that the Governor-General in Council today formally approved Australia’s acceptance of the strengthened Protocol II to the Inhumane Weapons Convention, which governs the global use of and trade in anti-personnel landmines. Australia will be among the first states to accept revised Protocol II.Revised Protocol II contains much stronger prohibitions and restrictions on landmines than the original Protocol II and will also apply to internal conflicts, giving greater protection to both civilians and peacekeeping forces. While Australia remains committed to a global ban on landmines, the interim measures provided by the strengthened Protocol will lessen the devastating effects of these appallingly misused weapons until a global ban is achieved.
…I am also happy to announce that Australia will also be accepting the new Protocol IV to the Inhumane Weapons Convention which prohibits the use and transfer of blinding laser weapons. This new Protocol is an eminently humane measure which will also contribute to the safety of our forces in combat situations. Blinding laser weapons are still in the developmental phase and to date there is no record of their use in conflicts. However the Protocol is timely in that it will control such an abhorrent and excessively injurious weapon before it has become widely available on the international market. The Australian Government will continue to urge the widest possible adherence to Protocol IV to ensure that these weapons do not emerge as a humanitarian problem in the future.
On 17 November 1997, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice from Mr Robert McClelland concerning the Inhumane Weapons Convention. In the course of his answer the Minister made the following comment (House of Representatives, Debates, 17 November 1997, p 10600):
The Australian Government ratified revised Protocol II of the Inhumane Weapons Convention on 22 August 1997 and encouraged its Forum partners at the 28th South Pacific Forum in Rarotonga on 17 to 19 September 1997 to do likewise. Australia also contributed language to the Forum Communique which urged all nations to work strenuously towards the promotion of an effective global ban on anti-personnel landmines in all relevant fora, including inter alia the United Nations, the Conference on Disarmament, regional organisations and groupings, and the review conferences of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to have Indiscriminate Effects.
On 30 January 1997, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in an address to the Conference on Disarmament:
Landmines
Anti-personnel landmines are the great scourge of our day — and, sadly, will remain so for generations to come.
You will all be familiar with the grisly statistics - the almost unimaginable number of these weapons sown haphazardly and unmarked in so many countries; the lives that have been lost or blighted, and that continue to be lost and blighted as we sit here; the tracts of farmland rendered useless or deadly. This problem is not just a theoretical or doctrinal concern but a lethal reality for many people across the globe - most poignantly for the estimated 10,000 people who will be killed and the 20,000 who will be wounded by anti-personnel landmines in the coming year.
These weapons have been so widely misused in a way they were never intended to be that my country, like so many others, believes that the sane, humane course is to ban them completely.
Like many other countries, Australia has suspended the operational use of anti-personnel landmines by its armed forces. We have done this not because the Australian Defence Force is in any way responsible for the international landmines crisis, but as a moral gesture intended to hasten the end of the carnage.
I am happy to be able to announce to you today that Australia will be contributing a further $4 million over the next three years to mine-clearance and rehabilitation work in Cambodia and Mozambique.
Australia is also interested in working with other countries to improve de-mining technology, in order to increase the rate and scale of the de-mining process. We have developed what we believe to be breakthrough technology which has the potential to make mine detection faster and more reliable in countries like Cambodia with highly mineralised soils. We will be drawing this development to the attention of delegates to the "Tokyo Conference on Anti-Personnel Landmines" in March of this year.
What is needed now is an instrument which will formalise the many national unilateral gestures into a legally-binding international regime which effectively outlaws anti-personnel landmines as a weapon of war and civilian terror.
Only the Conference on Disarmament, I believe, has the expertise, the experience and the standing to deliver such an instrument.
In many ways, this will be a novel challenge for you. Anti-personnel landmines are a classic defensive weapon - the security of no state is threatened by another's possession or deployment of them. The inspiration for your endeavours will be primarily humanitarian - very much related to the security of the individual.
The elaborate and intrusive compliance and verification mechanisms you have crafted in the case of chemical weapons and nuclear testing may well not be appropriate to an anti-personnel landmines treaty.
But such a treaty will be an arms control instrument. It must be effective, and have force and credibility. It must enjoy the imprimatur and the confidence of the international community. It must, in short, be a product of the Conference on Disarmament.
I know that some in this hall and beyond have reservations about such an enterprise on principle - principles related to legitimate self defence needs or particular national security situations. I sympathise with these concerns.
Australia's own decision to suspend the use of anti-personnel landmines and to support the negotiation of a global ban as soon as possible was not taken without considerable soul-searching given that the defence challenge for Australia is to be able to protect a vast continent with small professional armed forces.
I urge the hesitant among you not to withhold consent to the CDs undertaking this vital work, but rather to explore and negotiate with an open mind - as happens with any arms control negotiation - how your particular national security interests may be accommodated within the framework of the international instrument the world needs.
I also know that some - inspired by humanitarian concerns with which Australia fully sympathises - want to draw up a ban on anti-personnel landmines in a more limited ad hoc forum outside the Conference on Disarmament because, quite simply, they do not believe this Conference can deliver a treaty fast enough to meet the urgency of the humanitarian crisis we are facing.
I say to them - work on possible elements of a draft treaty by all means, assist and complement the CD in its endeavours, but be wary of the risk of producing a permanent partial solution to the global landmines crisis. I say to you, distinguished members of the Conference on Disarmament: prove them wrong.
In a media release of 27 June 1997, noting the appointment of the Australian Ambassador for Disarmament, Mr John Campbell, as the Special Coordinator on Anti-personnel Landmines for the Conference on Disarmament, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments on the Ottawa process:
Australia shares with the other participants in the "Ottawa process" the fundamental commitment to negotiating the best possible APL ban treaty with the widest possible actual and potential adherence. The challenge now is to ensure that a treaty which is concluded quickly is also effective. To be effective, a ban must include not only those countries which have already embraced the goal of a ban on anti-personnel landmines, but also those which remain to be convinced.
To achieve this goal, it is imperative that the international community use all effective means available to it. To do otherwise - or to fail to involve all countries relevant to the global landmines equation - would be to risk producing a permanent partial solution on landmines. Australia will therefore seek to ensure that the considerable political momentum of the Ottawa process and the treaty making expertise and representativeness of the Conference on Disarmament are brought cooperatively to bear to achieve a truly global and effective solution to the international landmines crisis…
On 23 July 1997,the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the Inhumane Weapons Convention:
I am pleased to announce that the Governor-General in Council today formally approved Australia’s acceptance of the strengthened Protocol II to the Inhumane Weapons Convention, which governs the global use of and trade in anti-personnel landmines. Australia will be among the first states to accept revised Protocol II.Revised Protocol II contains much stronger prohibitions and restrictions on landmines than the original Protocol II and will also apply to internal conflicts, giving greater protection to both civilians and peacekeeping forces. While Australia remains committed to a global ban on landmines, the interim measures provided by the strengthened Protocol will lessen the devastating effects of these appallingly misused weapons until a global ban is achieved.
Australia is encouraging other countries, particularly in our region, to accede to the Inhumane Weapons Convention and its Protocols and, in the case of existing states parties, to adopt revised Protocol II as soon as possible.
…Australia will also be accepting the new Protocol IV to the Inhumane Weapons Convention which prohibits the use and transfer of blinding laser weapons. This new Protocol is an eminently humane measure which will also contribute to the safety of our forces in combat situations. Blinding laser weapons are still in the developmental phase and to date there is no record of their use in conflicts. However the Protocol is timely in that it will control such an abhorrent and excessively injurious weapon before it has become widely available on the international market. The Australian Government will continue to urge the widest possible adherence to Protocol IV to ensure that these weapons do not emerge as a humanitarian problem in the future.
On 15 August 1997, in a joint media release concerning the Brussels Declaration in favour of a global ban on landmines the Minister for Foreign Affairs, Mr Alexander Downer, and the Minister for Defence Mr Ian McLachlan made the following comments:
The Government has decided that Australia will sign the Brussels Declaration of principles on a global ban on anti-personnel landmines.
On 18 September 1997, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the Oslo conference outcomes. Extracts follow:
Agreement by the Oslo Conference to the text of an anti-personnel landmines ban treaty is a significant development. The Australian Government will be considering in the coming weeks whether to sign the Treaty when it is opened for signature in Ottawa in December.Australia played an active and constructive role in the Oslo negotiations and I am pleased to note that, thanks in no small part to our efforts, the Treaty text as agreed is a stronger document in areas such as definitions and verification — areas which are central to the effectiveness of any contemporary arms control treaty.
The Government will need to consider how the Ottawa Treaty measures up against Australia’s national interests and goals, notably our commitment to an effective, global solution to the international landmines problem. We will need to take account of the fact that a number of countries central to the landmines equation — major users and producers — have made clear that they will have nothing to do with the Ottawa treaty.
On 22 September 1997, in the Senate, the Minister representing the Minister for Foreign Affairs, Senator Robert Hill, answered a question without notice from Senator Vicki Bourne. Extracts of the question and answer follow (Senate, Debates, 22 September 1997, p 6588):
Senator Bourne—…As the minister would be aware, almost 100 countries attending the Oslo conference on landmines have formally adopted a text of a Treaty banning anti-personnel landmines to be signed in Ottawa in December 1997. Given that the text for the Treaty was formally adopted in Oslo, why has our government backed away from committing Australia’s signature to the agreement, despite voting in favour of the treaty? What are the so-called ‘national interests’ that the Foreign Affairs and Defence ministers are using to explain why Australia will not commit to sign the document?
Senator Hill—We have a different process now. Basically, I think it will interest the Senate if I confirm that we are committed to the goal of achieving a global landmines ban. We signed the Brussels Declaration of Principles on a Global Landmines Ban on 15 August and participated in the negotiations for a landmines ban, which were held, as you said, in Oslo. The Treaty is a stronger document than the draft on which the Oslo conference began work, thanks in no small part to the efforts of Australia on key issues such as definitions and verification which are central to the effectiveness of any arms control treaty. Cabinet will now consider whether Australia should sign the treaty in Ottawa in December. As with any treaty which is proposed for our signature, the government will first need to assess how the treaty stacks up against Australia’s national interests and goals, including the goal of an effective global solution to the landmines problem — a goal which will require further work, given that a number of countries central to the landmines equation, major users and producers, have made clear that they will have nothing to do with the Ottawa treaty. We will continue our efforts in the conference on disarmament to ensure the major producers and exporters of landmines are brought into the process of finding a solution to the landmines problem. We are also pleased that Australia was among the first states, the 10th in fact, to accept strengthened Protocol II to the Inhumane Weapons Convention. Whilst disappointed that it stopped short of a total ban, we were pleased that the protocol offers enhanced protection from APL to civilians and peacekeeping forces. The new protocol also contains an enhanced review mechanism through which further strengthening of the protocol can be pursued. Key countries absent from the Ottawa process are engaged on the landmines issue in both the conference of disarmament and the IWC. The government is committed to continuing to lead by example in building international support to address the appalling humanitarian crisis brought about by past misuse of landmines.
On 27 October 1997, in the Senate, Senator Ian Campbell provided the government response to the report of the Joint Committee on Foreign Affairs, Defence and Trade entitled Australia's relations with South Africa. The response contained the following passage concerning the banning of anti-personnel landmines (Senate, Debates, 27 October 1997, p 8081):
The Minister for Foreign Affairs, Mr Alexander Downer, and the Minister for Defence, Mr Ian McLachlan, made a joint announcement on 15 April 1996 that Australia supports a global ban on the production, stockpiling, use and transfer of anti-personnel landmines. In the same statement, it was announced that the operational use of anti-personnel landmines by the Australian Defence Force was indefinitely suspended. This suspension would be reviewed in the case of a substantial deterioration in our strategic circumstances in which Australia's security was under threat and denial of an anti-personnel landmine capability to the Australian Defence Force would result in additional Australian casualties and damage to vital infrastructure.
Australia called for a global ban on landmines at the third and final session of the Inhumane Weapons Convention Review Conference held in Geneva in April/May 1996. The Government was disappointed that the Conference failed to support Australia's position but remains committed to pursuing such an outcome. The Conference did achieve the adoption of an amended Protocol II to the Inhumane Weapons Convention which contains stronger restrictions and prohibitions on the use and transfer of landmines and provides better protection for civilians and peacekeeping forces than the existing Protocol (to which Australia is already a party). Following scrutiny by the Joint Standing Committee on Treaties and subsequent Executive Council approval, Australia's instrument of consent to be bound by amended Protocol II was deposited with the United Nations Secretary-General on 22 August 1997.
In international fora, the Australian Government will continue to support the growing international movement in favour of eliminating anti-personnel landmines as a weapon of war. Australia took part in the international conference of pro-ban states and non-government groups in Ottawa in October 1996 which looked at future strategies for achieving a ban. Australia also co-sponsored the historic resolution adopted at the 51st session of the United Nations General Assembly in which, for the first time, the Assembly called for the vigorous pursuit of negotiations for a global ban on anti-personnel landmines. The resolution, adopted on 14 November 1996, attracted 115 co-sponsors and was supported by an overwhelming majority of states. The breadth of support shown by the vote is testimony to the strength of international feeling against landmines and reinforces efforts to rid the world of these insidious weapons which kill or maim some 30,000 people a year. In Mr Downer's address to the Conference on Disarmament (CD) in Geneva on 30 January 1997, he called on that body to deliver a treaty banning anti-personnel landmines in a timeframe commensurate with the scale and urgency of the problem. In 1997, Australia campaigned vigorously in the Conference on Disarmament for the commencement of negotiations on a ban and held the position of CD Special Coordinator on this issue from June until the end of the CD's 1997 session.
In addition, Australia has participated fully in the international meetings and negotiations held in 1997 under the auspices of the "Ottawa Process" - a Canadian-sponsored initiative which has, in an ad hoc forum of countries currently committed to a ban on anti-personnel landmines, finalised a ban treaty for signature in Ottawa in December 1997. The question of Australia's signing the Ottawa Treaty is being considered by Ministers.
Australia remains committed to working in all relevant international fora towards the goal of an effective ban on anti-personnel landmines that is global in scope, binding and verifiable. Australia is also committed to the important concomitant task of enhanced international contributions to de-mining and mine victim assistance programs. Since May 1996, Australia has committed over $19 million to such programs in Cambodia, Laos, Afghanistan, Mozambique and Angola.
On 17 November 1997, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release which included the following comments concerning the Ottawa Treaty:
The Government has decided that Australia will sign the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction — also known as the Ottawa Treaty — when it is opened for signature in Ottawa on 3-4 December 1997.
This is consistent with the policy of support for a global ban on anti-personnel landmines announced by the Government on 15 April 1996 as one of its first acts on coming to office. The Foreign Minister, Mr Alexander Downer, will travel to Ottawa to sign the Treaty on behalf of Australia.
This was a difficult decision for the Government. Landmines represent an important tactical capability that has a well-established place in ADF plans for the conduct of military operations. Australia has no association with the irresponsible use of these weapons. Finding alternatives will involve a costly research and development effort.
The Government’s decision means that the Australian Defence Force’s stockpile of anti-personnel landmines will be destroyed, consistent with the provisions of the Ottawa Treaty.
The widespread misuse of this weapon and the tragic humanitarian and economic consequences have led responsible governments to decide that landmines should be eliminated as a weapon of war. Hearteningly, the clear international trend is in this direction, as evidenced by the conclusion of the Ottawa Treaty, the strengthening of the restrictions and prohibitions on landmines attached to the Inhumane Weapons Convention, the growing list of national and regional measures outlawing use of and trade in landmines, and perhaps most importantly, an enhanced focus on de-mining and mine victim assistance programs.
In a joint media release of 17 November 1997, the Minister for Foreign Affairs, Mr Alexander Downer and the Minister for Defence, Mr Ian McLachlan, made the following comments concerning the Ottawa Treaty:
The Government has decided that Australia will sign the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction — also known as the Ottawa Treaty — when it is opened for signature in Ottawa on 3-4 December 1997.…This was a difficult decision for the Government. Landmines represent an important tactical capability that has a well-established place in ADF plans for the conduct of military operations. Australia has no association with the irresponsible use of these weapons. Finding alternatives will involve a costly research and development effort.
The Government’s decision means that the Australian Defence Force’s stockpile of anti-personnel landmines will be destroyed, consistent with the provisions of the Ottawa Treaty.
The widespread misuse of this weapon and the tragic humanitarian and economic consequences have led responsible governments to decide that landmines should be eliminated as a weapon of war. Hearteningly, the clear international trend is in this direction, as evidenced by the conclusion of the Ottawa Treaty, the strengthening of the restrictions and prohibitions on landmines attached to the Inhumane Weapons Convention, the growing list of national and regional measures outlawing use of and trade in landmines, and perhaps most importantly, an enhanced focus on de-mining and mine victim assistance programs.
Also on 17 November 1997, in the House of Representatives, the Prime Minister, Mr John Howard, answered a question without notice from Mr William Taylor. Extracts of the question and answer follow (House of Representatives, Debates, 17 November 1997, p 10457):
Mr Taylor—I refer the Prime Minister to the government’s commitment to reducing the tragedy of antipersonnel landmines around the globe. In the light of that commitment, could the Prime Minister inform the House of the government’s position on the Ottawa treaty on landmines?
Mr Howard—…I am now particularly pleased to inform the House that the Minister for Foreign Affairs will sign the Ottawa treaty on behalf of Australia when it opens for signature on 3 and 4 December. I thank him and the Minister for Defence and others who have been involved in the process of the formulation of the government’s policy on this issue.
The Treaty, the full title of which is the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, will mean that Australia will forswear the use of antipersonnel landmines and destroy its own stockpile of those landmines. The Treaty allows only a small number of mines to be retained for development and training in mine detection, clearance and destruction techniques. The government is very disappointed that, despite the likely signature by over 100 countries, the major producers and exporters of landmines are not prepared at this stage to sign the treaty. We will work very hard now in other forums, notably at the Conference on Disarmament, to ensure that the norm established by the Ottawa treaty becomes universal and includes these producers and exporters. The Government will also continue its strong support for de-mining and assistance to the victims of landmines. Since May of 1996 this government has committed over $19 million to de-mining operations in Cambodia, Laos, Angola, Mozambique and Afghanistan.
On 3 December 1997, the Minister for Foreign Affairs, Mr Alexander Downer, addressed the Ministerial Treaty signing Conference for the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Landmines and on their Destruction. Extracts from the address follow:
…Signing the Ottawa Treaty is the quickest, most absolute way for a government to commit itself to this objective, and it is right that Australia, with its strong humanitarian record, should take this high road to a global landmines ban. The Australian Government in April 1996 committed Australia to support a global ban on anti-personnel landmines and imposed an indefinite suspension on the operational use of these weapons by the Australian Defence Force, even though Australia — like the great majority of the other nations which will sign the Ottawa Treaty today and tomorrow — has had no association with the indiscriminate or irresponsible use of landmines.Since that time, Australia has played a leading role in international efforts to find a comprehensive and lasting solution to the global landmines crisis. Hearteningly, the clear trend of history is on our side: the strengthening of the restrictions and prohibitions on landmines embodied in revised Protocol II to the Inhumane Weapons Convention (which Australia was among the first states to ratify), the growing list of national and regional measures outlawing the use of and trade in landmines, the enhanced international focus on de-mining and mine victim assistance programs, and now — a qualitative leap forward — the Ottawa total ban treaty with its 100-plus adherents.
The challenge now will be to turn the powerful international norm established by the Ottawa Treaty into a universal one. A significant number of countries — including key landmine user and producer states — are currently outside the Ottawa Treaty and are likely to remain so for at least the medium term: some of them hold very deep-seated security-related concerns about abandoning landmines as a defensive weapon.
But the momentum which has built up behind the landmines ban issue — and to which the Ottawa Process has made such an important contribution — must not be allowed to dissipate, with those countries still outside the tent.
We must not end up with a permanent partial solution to the global landmines crisis.
Countries remaining outside the Ottawa Treaty must be engaged on the landmines ban issue at every available turn, including — obviously, but not only — through campaigning in favour of broader adherence to the Treaty.
In addition, the Conference on Disarmament remains the world's primary global arms control negotiating forum. It should be tasked to contribute further - to international security and human security in this area. Most importantly - the key countries outside the Ottawa Treaty are members of the Conference on Disarmament. Australia is committed to redoubling its efforts in that forum so that negotiations on the landmines ban issue get under way in 1998. I urge you to support that effort.
Our goal will be, as it has been throughout, sound disarmament treaty-making and the establishment of an effective global norm with the potential for universal adherence.
The ongoing review process of Protocol II to the Inhumane Weapons Convention is another important forum where non-Ottawa Treaty states can be brought further along the road to a total ban, and I appeal to all countries here to accede to the Convention or, in the case of existing states parties, to ratify revised Protocol II so that it enters into force as soon as possible.
On 24 February 1997, in the Senate, the Minister representing the Minister for Defence, Senator Jocelyn Newman, answered a question on notice from Senator Diane Margetts concerning the Tandem Thrust exercise. An extract of the question and answer concerning the International Court of Justice decision on the legality of nuclear weapons follows (Senate, Debates, 24 February 1997, p 875):
Senator Margetts—…(13)(b) has the Government considered, or will it consider, the impact of the International Court of Justice decision on the illegality of nuclear weapons in relation to the legality of the Tandem Thrust Defence Exercises and the presence of nuclear warships during the exercises. …
Senator Newman—…(13)(b) On 8 July 1996 the International Court of Justice handed down an advisory opinion as to whether the threat or use of nuclear weapons is, in any circumstances, permitted under international law. The Court reached the conclusion that the use of nuclear weapons, in all but the most extreme circumstances, would be illegal. The Court was, however, unable to find any evidence suggesting that the possession of nuclear weapons is illegal under international law. The Court was not called upon to consider the legality of nuclear powered ships. Exercise Tandem Thrust does not include scenarios anticipating the use of nuclear weapons. The Australian Government does not consider that the presence of nuclear powered warships in Exercise Tandem Thrust is in breach of international law…
On 30 January, the Minister for Foreign Affairs, Mr Alexander Downer, made the following address to the Conference on Disarmament:
…We shall continue that endeavour in the current and future sessions of this Conference. You and your successors may count, Mr President, on the full and active cooperation of the Australian delegation in ensuring that, in 1997, the Conference acquits fully the expectations of the international community.
The report of the Canberra Commission
My first duty this morning is to lay before you the report of the Canberra Commission on the Elimination of Nuclear Weapons.
Of the myriad arms control challenges we face today, the question of how best to tackle the continued existence of large and sophisticated nuclear arsenals has long been the most vexed.
The Canberra Commission was a body of independent experts and eminent persons commissioned by the Australian Government to address the fundamental questions of whether a nuclear weapon free world is feasible and, if so, the measures which could be taken to attain that objective.
I should like to record here my gratitude to the members of the Commission for the extreme seriousness, dedication and creativity which they brought to bear on their task. The Commission's report comes at a crucial point in the international community's consideration of nuclear disarmament and non-proliferation.
Having at last met the challenge of concluding the Comprehensive Test Ban Treaty, the international community must now push on with further practical and realistic measures on nuclear arms control and disarmament.
A window of opportunity is open before us. If we do not take that opportunity, the window could close, and future generations will not forgive us for this.
It is a complicated task. To succeed, the international community must develop new thinking - creative and imaginative thinking. But we cannot afford to lose ourselves in rhetoric or unproductive idealism. The international community needs to focus on developing ideas which are practical, constructive and realistic and which actually take us closer, step by step, to the goal of a world free of nuclear weapons.
I offer the report and recommendations of the Canberra Commission as just such a contribution to international thinking and discussion on nuclear disarmament.
Most importantly, the 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 reduce further 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 weapon free world;
• 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 weapon free world.
The nuclear disarmament debate is of utmost significance for the peoples of the world.
Australia urges careful consideration of the report of the Canberra Commission by all Governments. I sincerely hope and believe that the Report will make a weighty contribution to future discussion of nuclear arms control and disarmament by the international community.
The CD as an institution
Mr President,
I have said that the international community has expectations of this organisation. They are, I believe, that it should respond fully to the opportunities created by the end of the Cold War to deliver arms control treaties and agreements which make a practical, realistic contribution to an improved climate of international security.
I congratulate the CD for having risen to this challenge.
In the few short years since the end of the Cold War, the Chemical Weapons Convention and the Comprehensive Test Ban Treaty have been hammered out in these halls.
In outlawing for the first time an entire category of weapons of mass destruction and in ridding the planet of the spectre of nuclear testing, the CD has delivered to humanity — now and future generations — an incalculable good.
I am proud and grateful that my country, working with members of this Conference, was able to contribute to both these achievements.
But you are now at a crossroads, ladies and gentlemen.
In a way, your recent successes make the way ahead more difficult and uncertain. It is certainly not an Alexandrian dilemma you face — that is, having no more worlds to conquer — but rather a choice as to how and where to deploy your energies and expertise now that a number of clear and long-held goals have been achieved, and the future arms control landscape looks — as a consequence — diffuse and unfamiliar.
It will be important that the Conference not relapse into the sterile ideological debate of the Cold War years — years which were lean for this and other organisations built on and dedicated to international cooperation. You should bear in mind that the distinctive characteristic of this organisation is its ability and mandate to negotiate arms control agreements. Naturally, you need to retain a sense of the broader strategic and political debate taking place in other fora on disarmament and non-proliferation issues, but your agenda should be framed in terms of clear, achievable and practical outcomes.
Do not dissipate your energies by trying to tackle too many tasks at once, particularly if they are being tackled elsewhere. Reform, modernise and streamline your agenda, jettisoning those elements which have become anachronistic and postponing to a more propitious time those which may be too ambitious in current circumstances. By all means, strike bargains, seek trade-offs and manoeuvre in other ways to protect and advance your national, regional or group interests, but avoid “hostage-taking” and stalemate.
Focus on the arms control negotiations which are of most pressing concern to the international community.
In 1997, Mr President, I believe these to be: a treaty banning the production of fissile material for weapons purposes — a “Cut-Off” Convention — and a treaty which bans anti-personnel landmines totally.
The “Cut-Off” conventionFor many years, proposals to negotiate a treaty to prohibit the production of fissile material for use in nuclear weapons — the “Cut-Off convention” — have been on the international nuclear non-proliferation and disarmament agenda.
Australia has long supported a Cut-Off Convention and co-sponsored the annual resolution on this issue at the United NationsGeneral Assembly up to and including the 1993 resolution which received consensus support. However, in spite of this consensus endorsement, which supported the establishment of an Ad Hoc Committee in the CD, there has, as you know, been little progress.
It may until now have been possible to argue that other negotiations such as the indefinite extension of the Nuclear Non-Proliferation Treaty, and the conclusion of the Comprehensive Test Ban Treaty, needed to receive higher priority in the work programs of international negotiating fora.
That time has now passed and Australia believes that the beginning of negotiations on a Cut-Off Convention must be addressed urgently in your 1997 program.
The wishes of the international community in this respect are clear.
In addition to the UN General Assembly resolutions to which I have referred, the Nuclear Non-Proliferation Treaty Review and Extension Conference in May 1995 called unanimously for "the immediate commencement and early conclusion of negotiations on a non-discriminatory and universally applicable convention banning the production of fissile material for nuclear weapons or other nuclear explosive devices…"
While the exact shape and scope of the Cut-Off Convention remain to be determined, an Ad Hoc Committee of this Conference should be formed without further delay with a negotiating mandate based on the UNGA 48 resolution.
The principal objective would be to cap the world's stockpile of fissile material and to provide a guarantee against the recommencement of the nuclear arms race. It would be an obvious and important complement to the Comprehensive Test Ban Treaty in this respect.
A cut-off treaty would serve the security interests of all members of the international community - nuclear weapon states and non nuclear weapon states, Nuclear Non-Proliferation Treaty parties and non-NPT parties.
For the nuclear weapon states, membership of a Cut-Off Convention would confirm the unilateral commitments already made by four of these states to cease producing weapons-grade fissile material, and codify this commitment into a general ban on such production. It would also place under safeguards a number of plants which have been excluded under the terms of the Nuclear Non-Proliferation Treaty.
For the so-called "threshold states", it would mean ceasing any production of fissile material suitable for use in nuclear weapons, and opening up their nuclear facilities to international verification.
For the majority of countries which, like Australia, are non-nuclear weapon states party to the NPT, a Cut-Off convention would not require any additional safeguards or verification measures. But it would provide an additional guarantee as well as a reassurance that the world is headed in the direction of the complete elimination of nuclear weapons.
Indeed, the report of the Canberra Commission on the Elimination of Nuclear Weapons identified a Cut-Off Convention as an important reinforcing step along this road which should be undertaken as a matter of urgency.
On 28 November 1997, the Minister for Foreign Affairs, Mr Alexander Downer, made the following comments in a media release concerning the Comprehensive Test-Ban Treaty (CTBT):
…The CTBT — which bans all nuclear tests for all time — is a milestone in international efforts to address the global threat posed by nuclear weapon proliferation. As a major impediment to the development of new generations of nuclear weapons, it also promises to bring the nuclear arms race to a definitive end and hasten the process of the elimination of nuclear weapons.I signed the Treaty on behalf of Australia in September 1996. Australia was an active participant in negotiations on the Treaty from the beginning and led international action to save it following the failure of efforts to achieve final consensus at the Conference on Disarmament in Geneva. Australia successfully promoted the adoption of the Treaty by the United Nations General Assembly. To date, the CTBT has been signed by 148 countries, including all five nuclear weapon states, and ratified by eight. It 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.
By furthering the twin goals of non-proliferation and nuclear disarmament, the CTBT strengthens the Nuclear Non-Proliferation Treaty (NPT), the cornerstone of international security arrangements in the nuclear field. A call for the early conclusion of a CT13T was a central recommendation of the 1995 NPT Review and Extension Conference.
…Australia is one of the 44 countries whose ratification is necessary before the CTBT can enter into force.
On 6 May 1997, in the Senate, the Minister representing the Minister for Foreign Affairs, Senator Robert Hill, answered a question on notice concerning United Nations
Resolution L37 from Senator Diane Margetts. Extracts of the question and answer follow (Senate, Debates, 6 May 1997, p 2769):
Senator Margetts—(1)(a) Did Australia abstain on the Malaysian sponsored resolution L37 in the United Nations (UN) General Assembly First Committee and Plenary; and (b) what is the rationale for the Government’s vote.
(2)(a) Did the recent decision on the International Court of Justice state unanimously that there is a legal obligation on the part of the nuclear weapons states to enter into bonafide negotiations to eliminate nuclear weapons; and (b) did the L37 resolution call for negotiations for precisely that end.
(3)(a) Does the Australian Government believe that steps need to be taken before a weapons convention can be concluded; and (b) what are those intermediate steps and what is the timetable for taking them.
(4)(a) How does the L37 resolution interfere with or go against the realisation of those intermediate steps; and (b) does the Minister concede that the L37 resolution in fact actually places additional pressure on the nuclear weapon states to proceed with intermediate steps, rather than impeding any of them.
…(6) Did Australia vote for the L45 resolution on bilateral arms negotiations sponsored by the US; if so, how can L45 and L37 be seen as mutually exclusive.
(7) Did Australia vote against the Myanmar resolution L39 which called on the nuclear weapons states to “stop the qualitative improvement, development, production and stockpiling of nuclear warheads and their delivery systems” on the grounds that the resolution calls for a phased program of nuclear disarmament and for the eventual elimination of nuclear weapons within a time-bound framework and through a nuclear weapons convention because of the words “time-bound framework” and “nuclear weapons convention”.
(8) Is it the case that the Government has a rigid opposition to the words “time-bound framework” in resolutions dealing with nuclear disarmament issues and will vote against such resolutions no matter what else may be contained in such resolutions; if so, why.
…(11) Why does the Government believe a time-bound framework is too prescriptive, when only the concept of a time-bound framework has been suggested rather than the framework itself.
Senator Hill—(l)(a) and (b) and (3)(a) and (b). Australia abstained in voting at the 1996 session of the United Nations General Assembly on the Malaysian-sponsored resolution concerning the advisory opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons (resolution 51/45 M, in previous committee stage consideration called L.37). A key paragraph of the resolution (operative paragraph 4) calls on all states “to immediately fulfil this obligation by commencing multilateral negotiations in 1997 leading to the early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination”. Australia did, however, vote in favour of the paragraph of the resolution (operative paragraph 3) which underlined the unanimous conclusion 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.
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. It was therefore sympathetic to the general aims embodied in this resolution.
There are, however, many steps to be taken on the road to the goal of nuclear disarmament before the question of a single nuclear weapons convention can be productively addressed. Whereas a multilaterally negotiated legal instrument may well be a focus of the final phases of the elimination of nuclear weapons, the Government believes it is more productive in present circumstances to continue to encourage the nuclear weapon states, particularly the United States and Russia, to maintain the current momentum of nuclear arsenal reductions, notably under the START (Treaty on Reduction and Limitation of Strategic Offensive Arms) process. In this context, the Government notes and welcomes the recent agreement between the United States and Russia on guidelines for a further round of such reductions, known as START III, which will look towards further reducing strategic warhead stockpiles for both countries to some 80 percent below Cold War peaks. To attempt to force the pace by “multilateralising” nuclear disarmament prematurely would run the risk of impeding the concrete nuclear disarmament measures currently being undertaken by diverting attention from those negotiations. The Government does not consider it a realistic or productive expenditure of diplomatic capital to attempt to persuade the nuclear weapon states to adhere to a timetable for nuclear disarmament which does not take account of the global strategic environment. The latter factor will remain the key determinant of the pace of nuclear disarmament.
As was made clear in a statement accompanying its vote, the Government, for the reasons adduced above, would have preferred resolution 51/45M to focus attention on the immediate and intermediate concrete steps which will take forward the process of nuclear disarmament.
In addition to continuing nuclear arsenal reductions by the nuclear weapon states, a key next step on the road to nuclear disarmament is the early commencement of substantive negotiations on a convention banning 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 step for multilateral negotiations after the Comprehensive Test Ban Treaty and would be a major new addition to the process of nuclear disarmament and to strengthening barriers to nuclear proliferation. The Government is currently working hard in the Conference on Disarmament in Geneva to get "cut-off" negotiations under way and concluded as soon as possible in that forum. In parallel with this activity, the Government will: continue to encourage full implementation of the Treaty on Further Reduction and Limitation of Strategic Offensive Arms between the United States and Russia (START II), and further nuclear reduction through, for example, START III; work for widespread adherence to the Comprehensive Test Ban Treaty; promote the strengthening of International Atomic Energy Agency safeguards; and support the enhanced Nuclear Non-Proliferation Treaty review process which commences this year.
(2)(a) and (b) In its Advisory Opinion on the legality of use or threat of nuclear weapons handed down on 8 July 1996, the International Court of Justice said, inter alia, 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". This aspect of the Court's Opinion was agreed unanimously and did not refer to the specific concept of a single nuclear weapons convention. The United Nations General Assembly resolution referred to in paragraph (1) of the question was considerably more prescriptive and specific in its treatment of the issue, as indicated in the first paragraph of the answer to paragraph ( 1) of the question.
(4)(a) and (b) As the answers to questions (l) and (3) above make clear, the Government does not support calls for a timebound framework for nuclear disarmament as embodied in the resolution. The Government believes it is more productive to focus on promoting practical, realistic steps towards the ultimate elimination of nuclear weapons. It considers that calls for a prescriptive timebound approach to the disarmament process are patently not realistic, and therefore do nothing to advance the cause of disarmament in any concrete or practical way. What is required to advance the cause of nuclear disarmament is the patient and dogged pursuit of the various inter-locking steps on the path to the complete elimination of nuclear weapons. The Government believes that it is more productive for the international community to concentrate on actually achieving further concrete progress towards nuclear disarmament rather than seeking to debate an artificial timetable for the achievement of a single nuclear weapons convention to which the nuclear weapon states are opposed at this Stage.
…(6) Australia voted in favour of the resolution jointly sponsored by the United States and Russia at the 1996 United Nations General Assembly concerning bilateral nuclear arms negotiations and nuclear disarmament (resolution 51/45 R). The Government saw clear differences between this resolution and resolution 51/45 M discussed above, notably in the latter's focus on a call for time-bound multilateral negotiations leading to conclusion of a nuclear weapons convention.
(7), (8) and (11) Australia voted against the Myanmar-sponsored resolution at the 1996 United Nations General Assembly on nuclear disarmament (resolution 51/45 O, known as L.39 in previous committee consideration). The Government saw important differences between this resolution and the Malaysian-sponsored resolution discussed above (51/45 M).
As noted above, Australia is fully committed to the ultimate elimination of nuclear weapons. Our priority in this area is to focus on practical, realistic steps to achieve the elimination of nuclear weapons, which may at a future point include a nuclear weapons convention. In this respect we consider that calls for a prescriptive timebound approach to the disarmament process as espoused in resolution 51/45 O are patently not realistic in current circumstances, and therefore do nothing to advance the cause of disarmament in any concrete or practical way. In the Government's view, it is unproductive to advocate the sort of tight linkage that holds one negotiation or process hostage to the conclusion of another. This tends to be the result, intended or otherwise, of the efforts of the proponents of the time-bound framework concept. The Government is firmly of the view 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 concept or timetable. Such debate is currently delaying the start of negotiations on a "cut-off" convention in the Conference on Disarmament. It was for these reasons that Australia voted against the resolution…
On 24 September 1997, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning a protocol to strengthen nuclear safeguards. Extracts of the release follow:
I warmly welcome the signature in Vienna yesterday of a Protocol supplementing and strengthening Australia’s basic nuclear safeguards agreement with the International Atomic Energy Agency (IAEA). Australia is the first country to sign the new protocol. This reflects the Government’s strong support for the IAEA’s efforts to strengthen the international safeguards system.
…The Protocol is based on a model protocol intended for adoption by each country having a safeguards agreement with the IAEA. The protocol incorporates measures to strengthen safeguards which have been developed in response to the discovery of Iraq’s clandestine nuclear weapons program in 1991. The new safeguards measures will enhance the IAEA’s ability to detect undeclared nuclear activities. An effective and efficient international safeguards system underpins international nuclear cooperation and regional and global nuclear security. Australia is actively involved in the IAEA’s program to strengthen safeguards and played a key role in the negotiation of the model protocol
On 1 October 1997, the Minister for Foreign Affairs, Mr Alexander Downer, issued a media release concerning the South Pacific Nuclear Free Zone Treaty. Extracts follow:
I warmly welcome the ratification by the United Kingdom of the Protocols to the South Pacific Nuclear Free Zone (SPNFZ) Treaty — the Treaty of Rarotonga.…Signature and ratification of the SPNFZ Protocols by all five nuclear weapon states has long been a major Australian and South Pacific Forum objective. The Australian Government welcomed last year the signing of the three Protocols by France, the United Kingdom and the United States. France ratified the Protocols on 20 September 1996.
…The Protocols apply the prohibitions of the Treaty related to manufacture, stationing and testing of nuclear devices to non-self governing territories within the zone and provide assurances that nuclear weapon states will not use or threaten to use nuclear weapons against members of the Treaty and will not test nuclear explosive devices within the zone.
Mr Melham-
(1) Did the UN General Assembly adopt an International Convention against the Recruitment, Use, Financing and Training of Mercenaries on 4 December 1989 without a vote.
(2) Was the Convention open for signature by all states at the UN Headquarters in New York until 31 December 1990.
(3) Which states have (a) signed, (b) ratified and (c) acceded to the Convention and when did they do so.
(4) Has Australia taken steps to accede to the Convention; if so, what.
…(6) Has Australia discussed the implementation of the Convention with other states; if so, (a) on what occasions, (b) in what circumstances and (c) by what means.
Mr Downer-
The answer to the honourable member's question is as follows:
(1) Yes
(2) Yes
(3)(a) The following eleven States have signed but not ratified the Convention:
Angola-28 December 1990; Belarus-13 December 1990; Congo-20 June 1990; Germany-20 December 1990; Morocco-5 October 1990; Nigeria-4 April 1990; Poland-28 December 1990; Romania-17 December 1990; Uruguay-20 November 1990; (former) Yugoslavia-12 December 1990; Zaire-20 March 1990.
(3)(b) The following five States have signed and ratified the Convention:
Cameroon-26 January 1996-(signed 21 December 1990); Italy-21 August 1995-(signed 5 February 1990); Maldives-11 September 1991-(signed 17 July 1990); Suriname-10 August 1990-(signed 27 February 1990); Ukraine-13 September 1993-(signed 21 September 1990).
(3)(c) The following seven States have acceded to the Convention:
Barbados-10 July 1992; Cyprus-8 July 1993; Georgia-8 June 1995; Saudi Arabia-14 April 1997; Seychelles-12 March 1990; Togo-25 February 1991; Turkmenistan-18 September 1996.
(4) The Attorney-General and I announced on 14 July that the Government was taking steps to accede to the Mercenaries Convention. In accordance with our normal treaty action procedures, the Attorney-General has written to the State and Territory Attorneys-General informing them of the consideration being given to the Mercenaries Convention and inviting their views on the question of acceding to the Convention. The Mercenaries Convention has been listed on the Commonwealth-State Standing Committee of Treaties' (SCOT) Schedule of Treaty Action since December 1995.
…(6) The Mercenaries Convention is, like all other international treaties, discussed by states with an interest in it when opportunities arise. In the case of this Convention, discussions of an informal nature often take place during the annual sessions of the United Nations General Assembly.
On 24 February 1997, in the House of Representatives, Mr William Taylor , on behalf of the Parliamentary Joint Standing Committee on Treaties made the following comments concerning laser weapons while tabling the fifth report of the Committee (House of Representatives, Debates, 24 February 1997, p 1037):
…It deals with two of the Protocols of the Inhumane Weapons Convention: Protocol IV seeking to ban the use of blinding laser weapons and the amended Protocol II dealing with antipersonnel land mines. The committee recommends early ratification of both Protocols.Protocol IV to the convention seeks to prohibit the use of laser weapons, the purpose of which is to cause permanent blindness to unenhanced vision. These weapons are still being developed. During our inquiry, we were told that this is the first occasion since 1868 that there has been an attempt to ban a weapon before it has been used on the battlefield. The committee is pleased to be at the vanguard of such initiatives.
Our attention was drawn also to some weaknesses in the Protocol. We have therefore recommended that Australia take every opportunity to ensure that these are corrected to make the document, and indeed the prevention of the use of such weapons, more effective. The amended Protocol II relates to the use on land of mines, booby traps and other devices. While landmines are a defensive weapon used by armies, demonstrably they can kill and maim innocent people, particularly children, long after a conflict has ended.
On 1 September 1997, in the House of Representatives, the Minister for Foreign Affairs, Mr Alexander Downer, answered a question on notice concerning UN disarmament conventions from Mr Mark Latham. Extracts of the question and answer follow (House of Representatives, Debates, 1 September 1997, p 7488):
Mr Latham- (1) Is he able to say which UN disarmament conventions have not been ratified by all the permanent members of the Security Council. (2) When did the other permanent members ratify each of the conventions referred to in part (1). (3) What are the texts of any reservations lodged by the permanent members. Mr Downer- The answer to the honourable member's questions are as follows: (1) The Secretary General of the United Nations is the depositary of four arms control and disarmament conventions and treaties. These are: the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW); the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD); the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (CWC); and the Comprehensive Nuclear-Test-Ban Treaty (CTBT). All five permanent members have ratified the CCW. China and France are yet to ratify ENMOD, while Russia is the only permanent member of the Security Council not to have ratified the CWC. None of the five permanent members (P5) as yet has ratified the CTBT, which was opened for signature last year. In addition, there are a number of major multilateral arms control and disarmament conventions and treaties for which individual states, not the UN, are the depositaries. Of these, the P5 have ratified the Antarctic Treaty, the Treaty on Principles governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty); the Treaty on the Non-Proliferation of Nuclear Weapons (NPT); and the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (BWC). Other major multilateral disarmament conventions and treaties include the Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and under Water (Partial Test Ban Treaty - PTBT) and the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof (Sea-Bed Treaty). Russia, the UK and the US have ratified both treaties. China has ratified the Sea-Bed Treaty, while France has ratified neither. (2) Following are the dates of ratification of those UN disarmament conventions and treaties which have not been ratified by all of the P5: ENMOD: Russia (1978), the UK (1978), the US (1980). CWC: China (1997), France (1995), the UK (1996), the US (1997). A table providing the dates of ratification of major arms control and disarmament treaties is attached. (3) The texts of any reservations and statements lodged by the permanent members upon ratification of the abovementioned UN disarmament conventions and treaties are as follows: CCW United Kingdom: "(a) Generally (i) The term "armed conflict" of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes, including acts of terrorism, whether concerted or in isolation. (ii) The United Kingdom will not, in relation to any situation in which it is involved, consider itself bound in consequence of any declaration purporting to be made for the purposes of article 7(4), unless the United Kingdom shall have expressly recognised that it has been made by a body which is genuinely and authority representing a people engaged in an armed conflict of the type to which that paragraph applies. (iii) The terms "civilian" and "civilian population" have the same meaning as in article 50 of the 1st Additional Protocol of 1977 and to the 1949 Geneva Conventions. Civilians shall enjoy the protection afforded by this Convention unless and for such time as they take a direct part in hostilities. (iv) Military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time. (b) Re: Protocol II, article 2; and Protocol III, article 1 A specific area of land may be a military objective if, because of its location or other reasons specified in this article, its total or partial destruction, capture or neutralisation in the circumstances ruling at the time offers a definite military advantage. (c) Re: Protocol II, article 3 In the view of the United Kingdom, the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack. (d) Re: Protocol III, article 2 The United Kingdom accepts the provisions of Article 2(2) and (3) on the understanding that the terms of those paragraphs of that article do not imply that the air-delivery of incendiary weapons, or of any other weapons, projectiles or munitions, is less accurate or less capable of being carried out discriminately than all or any other means of delivery." United States: Reservation: "Article 7(4) (b) of the Convention shall not apply with respect to the United States." Declaration: "The United States declares, with reference to the scope of application defined in Article 1 of the Convention, that the United States will apply the provisions of the Convention, Protocol I, and Protocol II to all armed conflicts referred to in Articles 2 and 3 common to the Geneva Conventions for the Protection of War Victims of August 12, 1949." Understandings: "The United States understands that Article6(1) of the Protocol II does not prohibit the adaptation for use as booby-traps of portable objects created for a purpose other than as a booby-trap if the adaptation does not violate paragraph (1)(b) of the article. The United States considers that the fourth paragraph of the preamble to the Convention, which refers to the substance of provisions of Article 35(3) and Article 55(1) of additional Protocol I to the Geneva Conventions for the Protection of War Victims of August 12, 1949, applies only to States which have accepted those provisions." CWC China: "1. China has always stood for complete prohibition and thorough destruction of chemical weapons. As CWC has laid an international legal foundation for the realisation of this goal, China supports the purpose, objectives and principles of the CWC. 2. China calls upon the countries with the largest chemical weapons arsenals to ratify CWC without delay with a view to attaining its purposes and objectives at an early date. 3. The purposes, objectives and principles of CWC should be strictly observed. The provisions concerning challenge inspection shall not be abused and the national security interests of States parties not related to chemical weapons shall not be compromised. China is firmly opposed to any act of abusing the verification provisions which endangers its sovereignty and security. 4. Any country which has abandoned chemical weapons on the territory of another country should effectively implement the relevant CWC provisions, undertake the obligations to destroy those chemical weapons and ensure the earliest complete destruction of all the chemical weapons it has abandoned on another state's territory. 5. CWC should play a sound role in promoting international trade, scientific and technological exchanges and cooperation for peaceful purposes in the field of chemical industry. It should become the effective legal basis for regulating trade and exchange among the state parties in the field of chemical industry." United States: "Subject to the condition which relates to the Annex on Implementation and Verification, that no sample collected in the United States pursuant to the Convention will be transferred for analysis to any laboratory outside the territory of the United States."
On 24 February 1997, in the Senate, Senator Ian Macdonald incorporated into Hansard the second reading speech for the Crimes And Other Legislation Amendment Bill 1996. This bill, inter alia, removed the requirement in several Commonwealth Acts to obtain a Minister’s consent to commence a prosecution (Senate Debates, 24 February 1997, p 821):
The bill provides for the repeal of certain provisions requiring the consent of a Minister before a prosecution can be instituted against a person suspected of a Commonwealth offence.Those provisions were originally enacted for the purpose of deterring private prosecutions brought in inappropriate circumstances, particularly for offences which related to national security or international treaty obligations.
However, since establishing the office of the Commonwealth Director of Public Prosecutions the retention of those provisions is difficult to justify.
That is particularly so now that the Director of Public Prosecutions has the power to take over and discontinue a private prosecution brought in relation to a Commonwealth offence.
Once the consent provisions which appear in the bill are repealed the Director will have the task of instituting proceedings for the relevant offences.
In relation to those offences it is appropriate that an independent office holder have the power to decide whether to prosecute.
The bill does not affect consent provisions which relate to sensitive issues of national security or international treaty obligations.
On 1 May 1997, the Attorney-General, Mr Daryl Williams, issued a media release concerning the Mutual Assistance in Criminal Matters Treaty signed the previous day. Extracts of the release follow:
…The treaty enhances the pre-existing non-treaty mutual assistance relations between Australia and the US.The treaty will significantly facilitate the taking of evidence, locating and identifying people, temporarily transferring prisoners to enable them to give evidence or assist investigations, obtaining and executing search warrants and tracing, restraining and confiscating proceeds of crime
…
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URL: http://www.austlii.edu.au/au/journals/AUYrBkIntLaw/1998/8.html
