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Chapter 9
Case Studies - concerns raised during the inquiry
9.1 It is generally recognised that Australia should be able to enter
into treaties. However, there are also concerns in the community in relation
to the adverse impact of treaties on individuals, organisations and businesses.
The Committee heard a range of evidence outlining some of these concerns,
which need to be addressed. For example, there were concerns raised about
the consultation process involved in entering into and implementing treaties.
9.2 This Chapter outlines specific criticisms raised before the Committee
concerning the ratification processes adopted for particular treaties.
Convention on the Rights of the Child
Background of the Convention
9.3 The origins of the Convention on the Rights of the Child (CROC)
can be traced back to the Declaration of Geneva[1] on the rights
of children, which was adopted by the League of Nations in 1924. The Declaration
was a response to the desperate needs of children after World War I.
9.4 On 20 November 1959, the United Nations adopted its own Declaration
on the Rights of the Child. The Fraser Government included this Declaration
in a Schedule to the Human Rights Commission Act 1981, which meant
that the rights included within the Declaration were included within the
definition of 'human rights' in the Act. In 1979, the process of drafting
a multilateral convention on the rights of children was commenced by the
United Nations Human Rights Commission. Australia was actively involved
in the drafting of the Convention, and during this period various Australian
bodies, at both State and Commonwealth level were consulted and involved.[2]
9.5 The Convention on the Rights of the Child was adopted by the
United Nations General Assembly on 20 November 1989, thirty years after
the Declaration was first adopted. It came into force internationally
upon receiving its twentieth ratification on 2 September 1990. The Convention
was ratified by Australia on 17 December 1990, and came into force for
Australia on 16 January 1991.
9.6 On 22 December 1992, the Attorney-General made a declaration that
the Convention on the Rights of the Child is an international instrument
for the purposes of the Human Rights and Equal Opportunity Commission
Act 1986.[3] This means that, as with the Declaration on the Rights
of the Child, the rights in the Convention now fall within the definition
of 'human rights' in the Act.
9.7 The Human Rights and Equal Opportunity Commission can therefore conciliate
complaints about acts or practices of the Commonwealth (but not actions
of private individuals) which breach these rights. Although the Commission
can make recommendations, and make a report to the Minister, there is
no power to enforce these recommendations as they do not have the force
of law.
Criticisms of the ratification procedure
9.8 The Background Paper provided to the Committee by the Victorian Department
of Premier and Cabinet, sets out the following criticisms of the process
for ratifying the Convention on the Rights of the Child:
The Commonwealth failed to notify Victoria of its intention to go ahead
to ratify the UN Convention on the Rights of the Child. The Commonwealth
ratified that Convention despite the objections of several State governments
that the Convention took a different policy stance to existing State
legislative regimes. Although State and Territory executives were aware
of the development of the International Convention on the Rights of
the Child, their parliaments were not informed.[4]
9.9 The South Australian Attorney-General's Department, however, has
previously expressed the view that there was significant consultation
on the Convention on the Rights of the Child. The Joint Committee
on Foreign Affairs, Defence and Trade, in its report A Review of Australia's
Efforts to Promote Human Rights noted:
The overall assessment of consultation made by a representative of
the South Australian Attorney-General's Department was favourable. She
used the example of the Convention on the Rights of the Child:
We were definitely involved in the development of the Convention on
the Rights of the Child. Right from the start we were given all the
drafts and invited to have an input into it. And there is a standing
invitation by the Commonwealth that the states can be part of the Australian
delegation, when it is a convention affecting States' interests.[5]
9.10 Another criticism that has been made is that although the Commonwealth
Government stated that Australian laws were in compliance with the Convention
on the Rights of the Child at the time of ratification, it has been
alleged that this was not the case, and that some laws continue to be
in breach of the Convention without the Government taking any action to
ensure conformity with the Convention.[6]
9.11 The Public Interest Advocacy Centre (PIAC) also expressed its concern
that the pre-ratification process did not involve an adequate consideration
of existing laws and whether they were in conformity with the Convention.
The Centre submitted:
Due to a policy that Australia will not ratify Conventions unless and
until we substantially comply, assessments are done prior to ratification
of Commonwealth and State laws and procedures. In our view these assessments
are often flawed. PIAC has direct experience of this in relation to
the pre-ratification assessment of Australia's compliance with the UN
Convention on the Rights of the Child (CROC).
After its routine consultations with the States and Territories, the
Commonwealth took the view that the UN Convention on the Rights of the
Child could be signed and ratified because we already complied... This
view was not based on any systematic analysis of, nor any consultations
by the Commonwealth or the States, of laws, policies and programs against
the provisions of the Convention.
A short time after Australia's ratification, PIAC was commissioned
by the Human Rights and Equal Opportunity Commission to conduct such
a review. We concluded that there were instances of both individual
and systematic non-compliance...
Our concern... is with the inadequate way both the Commonwealth and
most State Governments went about determining their positions. No jurisdiction
engaged in any consultation with experts or relevant community groups.[7]
9.12 Professor Don Greig of the Australian National University was also
critical of Government advice that the Convention was in conformity with
Australian law. He identified a conflict with laws on international child
abduction, which themselves implement a treaty to which Australia is a
party. He stated:
It seems to me that there is an undoubted conflict between that Convention
[on the Rights of the Child] and the international child abduction convention,
normally referred to as the Hague Convention. The latter has been made
part of Australian law in the Family Law Act; the former has not.[8]
9.13 Professor Greig pointed out that while the Convention on the
Civil Aspects of International Child Abduction (the Hague Convention)
requires a kidnapped child to be returned to the jurisdiction from which
he or she was taken, regardless of the best interests of the child, the
Convention on the Rights of the Child provides that in all actions
concerning children, the best interests of the child shall be a primary
consideration. Hence the Family Law (Child Abduction Convention) Regulations
1986 appear to conflict with the Convention on the Rights of the
Child.[9]
9.14 Mr Lamb, from the Department of Foreign Affairs and Trade, considered
that there was not so much a conflict between the two Conventions, as
a matter of different emphasis. He stated in evidence before the Committee:
In the case of the Convention on the Rights of the Child, it
began as a Declaration on the Rights of the Child. The primary
driving force for people as they looked at that declaration at the time
it was begun in the 1970s was in establishing the best interest of the
child in the minds of decision makers....
The conventions on child abduction were seen as dealing with a different
element of law, if you like. It is one thing to have regard to the best
interest of the child; it is another to have regard to the circumstances
that lead to child abduction or what happens as a result of that. There
is not necessarily a conflict between those things, but there might
turn out to be one in the way a particular case has to be analysed.
That is not necessarily a fact of - I am not sure what the right word
is - discordance which you have to worry about.[10]
9.15 Mr Burmester, from the Attorney-General's Department, was more adamant
that there was no conflict between the two Conventions, stating:
Certainly, in relation to the rights of the child and child abduction,
we do not consider there to be a conflict.[11]
9.16 Another criticism which has been made, is that the Government has
failed to properly implement the Convention by legislation. Professor
Charlesworth, from the University of Adelaide, stated:
We have been a party to the Convention on the Rights of the Child
for a number of years now and I have not seen any sign at all that the
Federal Government is moving or trying to get support for legislation.
Similarly, with the implementation of our rights under the International
Covenant on Civil and Political Rights, we are showing no signs
at all of moving to implement those fully. We have HREOC and there seems
to be absolutely no sign of a more serious implementation of those rights.
So I do think there is some room to question the good faith. I think
the Australian Government is having its cake and eating it too. It is
getting the international applause for signing the treaties and incurring
no domestic wrath for doing so.[12]
9.17 Others have complained that the lack of public scrutiny of the Convention,
prior to the ratification process, has generated great public concern[13]
and allowed the proliferation of misinformation about the content of the
treaty and how the treaty may be applied. If there had been greater scrutiny
and more detailed information was freely available to the public, then
some of the community concern which has been expressed to the Committee
may have been dispelled. Mr Burmester, in his evidence before the Committee,
rejected the contention that the Convention would prevent parents from
entering the bedrooms of their children, stating:
I think that is probably a misconception and perhaps it does highlight
the problems - that members of the community do not always know what
obligations are assumed in particular treaties. I acknowledge that opportunities
for greater public debate and discussion may help to clarify the extent
of treaty obligations. One of the problems with the human rights treaties
is that they are expressed in broad terms and people can make arguments
that they imply certain rights or obligations but they may not be the
interpretation the government gives to a treaty.
I accept that there is room for argument and that greater public scrutiny
may help the further understanding of treaties. It is, I guess, the
form in which that takes place.[14]
9.18 Certainly, a more open and transparent system of scrutiny would
have relieved most of the criticisms made in relation to the ratification
of this Convention. It could have identified where there were conflicts
with State, Territory or Commonwealth laws, and with other treaties which
have been ratified by Australia. It could then have been agreed which
laws needed changing, how they were to be changed and by which Parliament.
The States and members of the public could have been involved, consulted
and informed of progress, and many of the misconceptions about the Convention,
which still flourish in the community, could have been dispelled.
ILO Convention 158 - Termination of Employment
9.19 There are three main criticisms of the method of ratification of
ILO Convention 158. The first of these is that there was insufficient
consultation with the States, and that the Convention was ratified contrary
to objections made by a majority of the States. This view is expressed
in the Victorian Government's Background Paper.[15]
9.20 Ms Pamela Martin, Director of the Intergovernment Relations Unit
in the South Australian Department of Premier and Cabinet, also stated
in evidence before the Committee that ILO Convention 158 was ratified
without the agreement of the South Australian Government. She noted, however:
[I]n October last year, the Commonwealth issued an Australia and
International Treaty Making: information kit, and our departments
tell us that provided the consultative mechanism outlined in that kit
is adhered to, that the concerns raised as a consequence of the Commonwealth's
unilateral ratification of Convention 158 will have been addressed.
So although we are complaining about something that has happened, there
has been subsequent Commonwealth action to address the lack of consultation
and agreement.[16]
9.21 The second criticism is that the Convention was ratified immediately
before a Commonwealth election, and was done in secret, without any publicity.
It is further argued that it does not represent a generally accepted standard,
as few other countries have ratified this Convention. The former Prime
Minister, Mr Malcolm Fraser, said of this Convention:
In one case, in December 1992, the Governor-General was asked to ratify
a treaty only hours before the dissolution of Parliament. No media release
was issued. This particular convention, ILO 158, has been ratified by
only 17 countries. Of major industrial states, only France and Sweden
have ratified this convention. It has also been ratified by the Cameroon's
Cyprus, Gabon, Malawi, Niger, Uganda, Venezuela, the Yemen Republic,
Yugoslavia, Zaire and Zambia.[17]
9.22 The Liberal Lawyers Association of Tasmania was also critical of
the process of ratification of ILO Convention No 158. Mr Barnett stated:
According to the evidence available to our Association, the ILO Convention
No. 158 was ratified on 26th February 1993, just hours before the dissolution
of the House of Representatives, and just prior to the March 1993 Federal
election. The ratification was made behind closed doors with not even
a media release. It was politically opportunistic to say the least.[18]
9.23 The third criticism is that Australia's laws were not in conformity
with the Convention prior to its ratification (contrary to the Government's
stated policy)[19] and that it was specifically used to give the Commonwealth
legislative power to override the States.
9.24 Mr Allan Handberg, National Chief Executive, Australian Chamber
of Manufactures, was also critical of the Government's ratification of
ILO Convention 158:
[T]o give effect to the Convention [No 158], it will be necessary to
specify conditions significantly in advance of those established by
Australian arbitral tribunals, and these have the potential to impact
adversely on employers. It appears that the basis for ratification of
this Convention may have arisen from the Government's concern about
the perceived lack of protection under the Victorian Employee Relations
Act on termination (and the other issues of Minimum Wage Fixing and
Equal Pay). However, this is no justification for such precipitate ratification
or legislative action. Any concerns that the Government might have about
the effect of the Victorian legislation on Australia's compliance with
these Conventions should be resolved with the Victorian Government.
9.25 The Liberal Lawyers Association of Tasmania added to this criticism,
stating:
The Federal Government relied on ILO Convention No. 158, relating to
Termination of Employment, to pass its controversial Federal Industrial
Relations legislation earlier in 1994. Interestingly, and according
to the evidence available to the Association, as at July 1994 only 17
countries had ratified this ILO Convention.[21]
9.26 In response to such criticisms, Mr Stewart-Crompton, of the Department
of Industrial Relations, advised:
In February 1993 the Termination of Employment Convention, 1982
(No. 158) was ratified. Ratification was unusual in that law and practice
was not fully in compliance with the provisions of the Convention, however
the Federal Government indicated that it would legislate using the external
affairs power to ensure compliance with the provisions of the Convention
before it came into force. The Commonwealth reiterated its preference
for a co-operative approach with the States and Territories but noted
that the ratification of Convention No 158 was a special case necessitated
by the removal or possible removal in a number of jurisdictions of previously
accepted employment conditions. The Commonwealth also reserved the right
to take such action in the future should other special cases arise.
The Minister made this clear in written advice to the State and Territory
Labour Ministers dated 9 July 1993.[22]
9.27 The ACTU also defended the Government's decision to ratify this
Convention, stating:
[T]here are very few exceptions to the practice that treaties are only
ratified where they comply with the law and practice in all jurisdictions
and where all states and territories have formally agreed to ratification.
The two exceptions relating to ILO conventions (Workers with Family
Responsibilities Convention 1981 (No 156) and the Termination of Employment
Convention 1982 (No 158)) are instructive as they indicate both the
unusual circumstances in which exceptions to the rule occur and also
the reasons why it is appropriate for the Executive to have the right
to ratify conventions without veto or limit of either the Commonwealth
Parliament or the States.
The Workers with Family Responsibilities Convention, was ratified without
the support of the Northern Territory and New South Wales Government
(NT has subsequently agreed to the ratification), despite the fact that
the law and practice of all jurisdictions was considered to be in compliance
with the Convention at the time of ratification. As Professor Creighton
has observed, the refusal to agree "seems to have been regarded
as politically motivated".
In relation to the Termination of Employment Convention 1982, its ratification
in 1993 was opposed despite the fact that the legislation enacting law
in pursuance to its obligations under the Convention only deviated from
existing state systems in a number of incidental ways and alleviated
the often tortuous and mindbending litigation that was required to establish
the Australian Industrial Relations Commission's jurisdiction in relation
to unfair dismissal. It would seem that the states were more concerned
with protecting their own jurisdictional patch rather the fundamental
rights of workers. In those circumstances, the actions of the Executive
in ratifying the convention, were absolutely justified and show why
the Executive should have the ability to ratify conventions free of
either parliamentary or state fetters.[23]
Environmental treaties: World Heritage Convention and Migratory Birds
Treaties
9.28 The Committee received a significant amount of evidence criticising
the processes used to enter into environment protection treaties. Some
of the criticism was directed at the domestic processes used for World
Heritage listing and the lack of provision for compensation. Other significant
criticism concerned the process for implementing treaties on the protection
of migratory birds.
9.29 The World Heritage Convention has had a significant impact following
the enactment of the World Heritage Properties Conservation Act.
A convenient summary of that legislation and Convention has been published
by the Department of the Parliamentary Library:
The World Heritage Convention was adopted by the United Nations
Educational, Scientific and Cultural Organisation (UNESCO) General Conference
in November 1972. Australia ratified the Convention in August
1974, and enacted the World Heritage Properties Conservation Act
in 1983....
The Convention obliges contracting states, including Australia,
to identify and protect natural and cultural sites of
outstanding universal value. Contracting states submit suitable properties
to the World Heritage Committee for inclusion on the World Heritage
List.
Included in the Convention definition of 'cultural heritage' are architectural
works, paintings, cave dwellings, and archaeological sites of 'outstanding
universal value from the point of view of history, art or science'.
In order to stop construction of a dam on the Gordon River in Tasmania,
the Commonwealth, in 1983, enacted the World Heritage Properties
Conservation Act ('the Act'). Since then the Act has been used on
a number of occasions. For example, it was used in November 1994 to
halt temporarily the Port Hinchinbrook development near Cardwell in
North Queensland.
Sections 6, 7 and 8 of the Act provide that where the Governor-General
is satisfied that an 'identified property' is being or is likely to
be damaged or destroyed, he may make a Proclamation, activating the
protective provisions (sections 9, 10 and 11) prohibiting certain activities
in relation to that property.
An 'identified property' is defined in section 3A as including, for
example, properties:
- on the World Heritage List;
- subject to Listing; and
- forming part of the cultural heritage or natural heritage and is declared
by the regulations to form part of that heritage.
The Commonwealth Minister for the Environment, Sport and Territories
may give his written consent to activities which would otherwise be
unlawful.
The Act enables the Commonwealth to prevent damage to an 'identified
property'; it does not allow the Commonwealth to assume the management
of that property. The Act does not transfer ownership to the Commonwealth.[24]
9.30 As Mr Campbell, from the Attorney-General's Department, has noted,
the Federal Parliament saw fit to pass the World Heritage Properties
Conservation Act, so complaints about its application are not cases
where the executive has acted without the consent of the Parliament, through
legislation. He also noted that the external affairs power in s. 51(xxix)
is not the only constitutional power which supports the legislation. The
corporations power in s. 51(xx) (amongst others) also supports the legislation,
and was considered by the High Court to be sufficient in itself to prevent
the construction of the Franklin Dam.[25]
Cultus Gold NL
9.31 Dr Tim Meagher, provided evidence to the Committee concerning the
failure to compensate a company which had mining leases in an area which
was nominated for World Heritage listing.[26] Details of the case appear
in Figure 3.
Figure 3: Extract from Submission Number 108, by Dr Tim Meagher[27]
Cultus Gold NL had obtained mining leases in regard to an alluvial tin
deposit in Queensland. There was also potential for a substantial ore
body at depth, for which further exploration was required.
The proposed mining operation had received environmental approvals to
proceed, in accordance with Queensland statutory process. Leases containing
pristine rainforest, or other environmentally significant components had
been relinquished in that process. The only areas to be explored and developed,
had been intensively mined at the turn of the century by alluvial diggers,
who had "high-graded" the area. No pristine rainforest was to
be affected.
Remnants of old workings are conspicuous throughout the area, and the
company had established a substantial exploration and development camp
in the area.
The Commonwealth subsequently included the Cultus Gold NL mining leases
in the nomination of the area for World Heritage Listing. The "North
Queensland Wet Tropics" nomination (Daintree) was subsequently accepted.
Cultus Gold was the only mining operation in the proposed World Heritage
Area.
Correspondence on the matter with the Commonwealth Minister for Environment
began in 1987. Senator Richardson's press statement of 11/12/87 had indicated
that mining could continue...
The company wrote to the Minister's Department on 16/2/1989,..., confirming
previous discussions, seeking to find a way to cooperate in development
of the leases, or to alternatively retire and be reasonably compensated.
....
As the letter of 9/3/89 stated, Senator Richardson agreed to consider
ex gratia compensation, and appointed the firm of Price Waterhouse to
assess the company's claim. This matter was confirmed by Senator Richardson
in his subsequent letter of 28/11/89. I understand that the company's
calculation of $2.5 million was accepted by Price Waterhouse. In the meantime
the company had written unanswered letters to Senator Richardson dated
30/3/89, 30/5/89, 26/9/89 and 2/11/89....
The Company wrote further unanswered letters trying to resolve the matter
dated 8/12/89, 8/1/90, 30/1/90, 16/2/90. On 12/4/90 Cultus Gold NL wrote
to the new Minister Hon. Ros Kelly.
Hon Ros Kelly's reply of 28 May... is a remarkable letter, which deserves
close reading. In essence it states that notwithstanding the independent
evaluation for compensation made by her office, "It is not Commonwealth
policy to compensate mining companies where their activities are found
to be incompatible with Australia's natural or cultural heritage".
Hon. Ros Kelly relied on the well known and frequently discussed fact,
that provided she did not prohibit mining of the leases entirely, the
Commonwealth was not obliged to [give] compensation. However it was certain
that the "allowable" mining would be uneconomic. Under those
circumstances the Commonwealth had not made an "acquisition"
in terms of the Constitution, or the World Heritage Properties Conservation
Act 1983. Thus compensation does not have to be paid. This "set up"
is the one that causes most of the fear and concern in regard to the World
Heritage Properties Conservation Act 1983, and thus the fear of misuse
of treaties by the Executive in general. The Cultus Gold NL case, as outlined
above is a classic example that it really can and did happen.
The only significant asset of the company was its China Camp deposit.
The Company was liquidated and the shareholders lost their funds.
Shark Bay
9.32 Another example of the concern raised about the processes used in
relation to the listing of areas under the World Heritage Convention,
was the submission received by the Committee in relation to the listing
of the Shark Bay area. The Chairman of the Land Use Committee of the Pastoralists
and Graziers Association of Western Australian gave the following example
of what his organisation saw as the failure of both the Federal and State
Governments to take into account the views of the local community:
Shark Bay listing was a further example of how far the Federal government
was prepared to go to satisfy the conservation movement - at the expense
of a local community.
In the mid 1980s the Burke State government invited the Shark Bay community
and associated industry and interest groups to formulate a management
plan for their region.
The original draft region plan for Shark Bay contained no major reference
to World Heritage listing and enjoyed strong local support.
However that plan was strongly opposed by the conservation lobby during
the public response process as not going far enough. A recommendation
was subsequently added in the final draft for the State Government to
assess the "advantages and disadvantages" of World heritage
listing for Shark Bay....
Despite undertakings to the State Parliament that the Government would
not support the nomination of Shark Bay without local support, and despite
the unanimous rejection of World Heritage listing by two fully attended
public meetings in Shark Bay, the State eventually bowed to federal
pressure to nominate the region.[28]
Bender's Quarry and World Heritage Management
9.33 Mr Barnett of the Liberal Lawyers Association of Tasmania illustrated
the concerns he saw in the use of the World Heritage legislation by giving
evidence about the closing of Bender's Quarry. He submitted:
A good Tasmanian example of the inadequate management procedures for
World Heritage and the use and abuse by the Federal Labour Government
of the many and varied International Treaties was the Bender's Quarry
case.
On 20th August 1992 the Federal Government, unilaterally, without notice
to the owner or the community, closed down Bender's Quarry in Tasmania's
south-west World Heritage area, and denied any legal liability for the
payment of compensation for the loss of this business. The quarry had
operated continuously for 40 years. The Minister for the Environment,
Mrs Ros Kelly MHR, was purportedly acting pursuant to her obligations
under the World Heritage Convention.
The very fact that the Federal Government denied any legal liability
for the payment of compensation for the loss of the business was nothing
less than an act of treachery and could be described as an abuse of
human rights - the human rights of the workers, the owner, the farmers
et cetera, that relied on the limestone, and the members of the community
that relied on an ongoing and productive activity. The Federal Government
had signed an agreement earlier in November 1988 to pay compensation
to the owner if the quarry was ever closed. If the Minister was to legitimately
act on her purported obligations under the Convention, then she should
also have had the responsibility to offer compensation to those affected.[29]
9.34 The use of the World Heritage legislation was of concern to the
Liberal Lawyers Association of Tasmania. Mr Barnett stated:
With respect to World Heritage concerns, whether one agrees or disagrees
with the listing, the Government's consistent proclivity to act unilaterally
without due consideration of the economic, social and community impact
of decision, has highlighted the need for reform of both the World Heritage
listing and management procedures as well as Australia's ratification
procedures of International Treaties.[30]
The Creery Wetlands and the Protection of Migratory Birds
9.35 A further complaint was made to the Committee by Cedar Woods Properties
Ltd, concerning its proposals to develop a property, part of which is
included in the 'Creery Wetlands' near Mandurah in Western Australia.[31]
9.36 In 1990, the Commonwealth nominated an area for protection under
the Convention on Wetlands of International Importance Especially as
Waterfowl Habitat, which was made at Ramsar in 1971 and is known as
the 'Ramsar Convention'. Cedar Woods submitted that it acquired
its property in 1992 on the basis that it bordered the nominated area,
but was not included within it, because it was private property at the
time of the listing.
9.37 Cedar Woods stated that it applied for State Government approval
to develop the land, and that approval was given by the Environmental
Protection Agency, subject to certain conditions.[32] Cedar Woods also
needed the land to be rezoned by the Mandurah City Council before it could
proceed. The Council held a 'referendum' of ratepayers. It appears that
the Council did not give approval for the rezoning of the land.[33] Cedar
Woods alleged that this outcome was influenced by announcements made by
the Federal Minister, the Hon. R. Kelly, that she would use the external
affairs power to prevent the development from proceeding.[34]
9.38 Cedar Woods claimed that its development will satisfy the spirit
and intent of the Ramsar Convention as well as the Japan Australia
Migratory Bird Agreement (JAMBA) and the China Australia Migratory
Bird Agreement (CAMBA).
9.39 Cedar Woods made the following submission to the Committee:
We submit to you that there is a need to legislatively proscribe the
Commonwealth Environment Minister's ability to publicly threaten the
use of the External Affairs power, without demonstrating adequate cause.
Major damage is caused to property holders by the sabre-rattling technique
that has been adopted by Environment ministers. We submit to you, that
this is an abuse of the External Affairs power that requires remedy.[35]
9.40 The Committee notes that on 31 August 1995, the Minister for the
Environment, Sport and Territories, Senator Faulkner, announced that there
had been a resolution concerning the Creery Wetlands. He stated:
I am pleased to confirm that I received a letter from Cedar Woods Properties
Ltd this morning. The company has given me an assurance that it will
fully protect the important areas within the Creery wetlands at Mandurah
in south-west Western Australia. I strongly welcome the assurance that
it has given. Cedar Woods has also agreed to enter into negotiations
for a memorandum of understanding with the State and Commonwealth Governments
and the Mandurah City Council to manage these important wetlands for
the long term. This is a far better outcome than the Commonwealth being
forced to unilaterally list the area with the Ramsar convention.[36]
9.41 The Committee also received evidence from the Royal Australasian
Ornithologists Union supporting Australia's adherence to treaties which
protect indigenous and migratory birds:
Australia's entry into international treaties and the subsequent use
of the external affairs power to implement them, often at the expense
of individual State autonomy, has undoubtedly been controversial. But
those treaties which are of relevance to the preservation of indigenous
and migratory Australian birdlife have been important in facilitating
the research, education and regulative mechanism necessary for their
survival.[37]
Improvement of consultation on world heritage listing
9.42 Not all the evidence received by the Committee in relation to world
heritage listing was critical of the process. Academic commentators, for
example, have observed that the Commonwealth has taken a more cooperative
approach towards the management of the World Heritage sites listed under
the World Heritage Convention:
Another area of change in relation to World Heritage sites in Australia
is that the Commonwealth has adopted a more cooperative approach towards
management of the listed areas. This has not resulted in the Commonwealth
abdicating responsibility for protecting the listed areas. Rather, a
more cooperative approach has been taken instead of relying solely on
Commonwealth management under Commonwealth legislation. A number of
Commonwealth-state management plans have now been adopted for the various
World Heritage sites, and in some instances state legislation controls
certain activities within the areas.[38]
Convention and Basel Convention on Hazardous Waste
9.43 The Australian Chamber of Commerce and Industry raised significant
concerns about the decision to ratify the United Nations Framework
Convention on Climate Change. The Chamber noted:
Commerce and industry notes with interest media reports (Australian
Financial Review, 19 August 1994) of the economic costs of Australia's
adherence to international treaties on climate change, for example.
According to economic modelling undertaken in the private sector, adherence
to the Climate Change Convention could reduce Australian national output
by up to 1.5 percent, or nearly $7 billion, annually, while acquitting
our undertakings under the Basel Convention on Hazardous Wastes could
impact adversely upon exports valued at $2.8 billion.[39]
9.44 Australia ratified the Basel Convention on the Control of Transboundary
Movement of Hazardous Wastes and their Disposal on 5 February 1992,
and also has obligations under OECD Council Decision C(2)39/FINAL on trade
in recoverable hazardous waste. Australia's implementing legislation is
the Hazardous Waste (Regulation of Exports and Imports) Act 1989.
9.45 Mr Rick Farley, then Executive Director of the National Farmers'
Federation, raised concerns regarding the economic impact of Australia's
ratification of the Basel Convention on the Transboundary Movement
of Hazardous Wastes:
A particularly graphic example of how large Australian interests can
be damaged through environmental protection treaties occurred in March
this year when the parties to the "Basel" Convention on the
Transboundary Movement of Hazardous Wastes decided to ban, from the
end of 1997 the export of secondary materials for recycling or re-use
from developed countries to non-OECD countries. No opting-out discretion
was allowed for developing countries in need of such materials as feedstock
to their expanding industries, and no consideration was given to the
environmental benefits of recycling those many metals and plastics that
can be safely recycled.
If the ban is confirmed after 1997, Australia stands to lose actual
exports to countries in our region of hundreds of millions of dollars,
and developing countries may find they need to manufacture more virgin
materials or use more of them in manufacturing. The likelihood that
both the Convention and the 1994 ban resolution are technically in breach
of the GATT's liberalised trade guarantees gives industry little hope
that Australian Governments can have the situation successfully reviewed
and rectified (even assuming it so wished). At the root of these problems
was Australia's action in becoming party to the original Convention
despite, and without understanding the implications of the treaty's
wide and general definition of "hazardous wastes". This definition
may come to embrace many recyclable metals and possibly chemicals, plastics
and even glass and paper. Such materials will, however, continue to
be freely traded by most of Australia's OECD competitors because of
the common market wall behind which the European Union countries trade
freely among themselves.[40]
9.46 Mr John Daley, of the Victorian Department of Premier and Cabinet,
criticised the failure to consult with the States over the Basel Convention
until it was too late. He stated:
[I]n the Basel Convention, the Commonwealth looked at it and said 'That
is fine; it does not concern the States - not a problem,' and the States
were basically not consulted over it until the Commonwealth had ratified
and then the whole thing became very public. It had obviously gone in
a way which was not quite expected internationally and all of a sudden
Australia was bound by this thing, the States had not really been consulted
over it and the action was all over.[41]
9.47 A number of industry groups expressed concern at the implications
of the decision to enter environmental treaties and questioned whether
the decisions were, on balance, in the national interest.
9.48 Dr David Honey, President of the Liberal Party of Western Australia,
stated:
It is a matter of grave concern to a major wealth producing State like
Western Australia, that the Commonwealth through environmental treaties
may have potentially imposed unrealistic and crippling burdens on mining
and other industries. Conventions on Biological Diversity, Hazardous
Wastes, and Greenhouse Gases risk binding Australia to standards that
are appropriate for European OECD countries but irrelevant to our conditions.
Too wide definitions put at risk sensible and economic exports of waste
materials.[42]
9.49 The Department of the Environment, Sport and Territories in its
submission to the Committee recognised that industry had concerns with
the ratification of the Convention and the extent of consultation with
affected parties. The Department stated:
In 1989 industry was concerned about the range of materials covered
by the Convention but these concerns were addressed by adopting a very
restrictive definition of waste in the domestic legislation. The merits
of the Basel Convention and the Australian Act were fully debated in
the Parliament during passage of the Act.
It subsequently became clear that the restrictive definition of waste
had resulted in Australia failing to meet its obligations under the
Convention, and that amendment of the Act would be necessary. Industry
again expressed great concern about the range of materials covered and
this was discussed in a series of five round table meetings with DEST
and other officials. The meetings were held in Canberra in November
1993, Melbourne in December 1993 and January 1994, and Canberra in March
and April 1994.
In June 1994 the government agreed to amend the Act and DEST set up
formal Policy Reference Groups with industry, environment NGOs and States
and Territories. These groups are now debating proposed amendments to
the legislation.
Industry remains concerned about the scope of the Act and the Convention,
and to meet this concern DEST is also establishing a Technical Group
to provide technical advice on a range of issues, including those relating
to the definition of wastes. This group of experts will report through
the Policy Reference Groups. It includes experts on hazardous waste
drawn from State Governments.[43]
Desertification Convention
9.50 The International Convention to Combat Desertification in those
Countries Experiencing Serious Drought and/or Desertification, Particularly
in Africa ( the 'Desertification Convention') was signed on
behalf of Australia in Paris on 14 October 1994. It has not yet been ratified.
9.51 The Department of Foreign Affairs and Trade has described the Convention
in the following terms:
The objective of the convention as stated in Article 2 is to combat
desertification and mitigate the effects of drought. As the central
element of the strategy to achieve that objective, affected developing
countries are required to prepare, make public and implement national
action programs.
Affected developed countries like Australia may also choose to prepare
national action programs under the convention if they tell the secretariat
that they intend to do so. In preparing their programs, affected countries
may use and build on existing relevant successful plans and programs.
Parties are also obliged to adopt integrated approaches and strategies
to combating desertification, including in cooperation with appropriate
organisations.[44]
9.52 On 1 September 1994, the Coalition, through Senator Chapman, moved
that the Desertification Convention be referred to the Senate Standing
Committee on Rural and Regional Affairs for inquiry and report.[45] The
Government rejected the proposed reference. Senator Faulkner stated on
behalf of the Government that there had been significant consultation
in the negotiation stage, with representatives of the National Farmers'
Federation and the Australian Conservation Foundation on the Australian
negotiating delegation, and that 'the Government does not see any need
to revisit these issues'.[46]
9.53 The Australian Democrats also voted against the reference, preferring
their own proposed reference of the Desertification Convention
to the Senate Standing Committee on Environment, Recreation and the Arts.[47]
Both motions were lost, so the Desertification Convention was not
referred to a Senate Committee.
9.54 Perceptions vary on how effective consultation on the Convention
has been. The States considered that the Desertification Convention
was an example of successful consultation. Mr Daley, from the Victorian
Department of Premier and Cabinet, observed:
[O]ne of the recent success stories of international treaties has been
the Desertification Convention... The States were quite intricately
involved in the negotiation of that treaty and in particular there was
an adviser to the delegation from New South Wales. What I have been
told about that experience was that, because there was a State person
there who actually dealt with desertification programs from day to day
and who knew how the whole exercise would work on the ground, the Australian
delegation was much better informed than it would have otherwise been,
had a much greater impact on the international negotiating process than
it would have otherwise had and the ultimate international outcome was
a lot better than it might have otherwise been.[48]
9.55 In contrast, some members of the public who appeared before the
Committee, expressed concern about the impact of the Convention and that
information on the Convention was not reaching them. Mr Cec Clark[49]
and Mr John Pickering[50] were both concerned about the ramifications
of the Convention for Australia's defence and for Australia's primary
industry. They also expressed the view that there was insufficient consultation
on treaties generally, and that information on treaties was not accessible
to the public.
9.56 Mr Lamb, from the Department of Foreign Affairs and Trade, agreed
that more could be done to explain the ramifications of treaties. He stated
that the Department was considering whether it could 'produce documents
at the time of tabling that illustrate better for people exactly what
the words were and what they meant.' He considered that this could be
particularly useful in the case of the Desertification Convention.[51]
Conclusion
9.57 These case studies raise various issues. The first is that much
more needs to be done in publicising and explaining treaties to the public
as well as to industry and community groups. Many of the misconceptions
that abound in relation to the Convention on the Rights of the Child
and some of the environmental treaties may be dispelled if there was sufficient
explanatory material available to the community.
9.58 The second issue is that during the negotiation process there should
be serious consultation with those who have practical experience in the
areas dealt with by treaties. People with relevant experience could include
representatives of the States, industry, trade unions and community groups.
This is essential to ensure that Australia does not enter into a treaty
without being fully aware of its consequences. Improved Government consultation
in relation to entry into and implementation of treaties would also ensure
that any problems with unforeseen consequences of treaties would be minimised.
The issue of consultation is discussed further in Chapter 12.
9.59 A third issue is that in cases in which legislation is necessary
to implement treaties, the legislation should in some way address the
consequences of executive acts related to the treaty.
9.60 An example of an 'executive act' arising out of environmental treaties
is the listing of land by the responsible Minister. One consequence of
such an executive act is the possible devaluation of the property listed
because restrictions may be placed on the way the land can be used. An
issue that arises for owners of land that is listed under such environmental
treaties is whether compensation should be paid and, if so, in what circumstances
and according to what criteria.
9.61 In such cases, the Committee suggests that the policy decisions
concerning whether compensation is payable and the criteria upon which
listing should be made, could be provided for in the legislation that
implements the treaty. This would ensure that the general community would
be aware of the way in which the Government intends to address the consequences
of executive acts arising out of the Government's adherence to a treaty.
Endnotes:
- Declaration is an expression of
principle which is not binding on countries, whereas a Convention is
a binding agreement at international law.
- P. Alston, 'Australia and the Convention',
in P. Alston and G. Brennan, (eds), The UN Children's Convention
and Australia, 1991: p 2.
- The Human Rights and Equal Opportunity
Commission Act 1986 superseded the Human Rights Commission Act
1981.
- Mr K. Baxter, Submission No. 111,
Vol 7, p 1466.
- Joint Committee on Foreign Affairs,
Defence and Trade, A Review of Australia's Efforts to Promote and
Protect Human Rights, AGPS, Canberra, 1994: p 44.
- See, for example: Where rights
are wronged: a critique of Australia's compliance with the United Nations
Convention on the Rights of the Child, National Children's Bureau
of Australia, 1993; Professor H. Charlesworth, 'Implementation of Australia's
Human Rights Treaty Obligations', Conference paper presented at, Australia
in a Global Context: The United Nations and Law-Making for the Twenty-First
Century, University House, Canberra, May 1995.
- Mr M. Hogan, Submission No. 141,
Vol 9, pp 2104-2106.
- Hansard, SLCRC, 1 May 1995,
p 25.
- Professor D.W. Greig, Submission
No. 112, Vol 7, pp 1511-12; see also comments in Hansard, SLCRC,
14 June 1995 at p 624, per Mr J. Daley.
- Hansard, SLCRC, 1 May 1995,
p 50, per Mr C. Lamb.
- Hansard, SLCRC, 1 May 1995,
p 52, per Mr H. Burmester. The Family Court of Australia, in Marriage
of Murray and Tam (1993) 16 Family Law Reports 982, also noted at
999-1000 that the two Conventions could be read together.
- Hansard, SLCRC, 25 July
1995, p. 823, per Professor H. Charlesworth.
- For examples of public concern
see: Hansard, SLCRC, 15 May 1995, p 249, per Mr S. Gethin; and
Hansard, SLCRC, 13 June 1995, p 581, per Mr C. Clark.
- Hansard, SLCRC, 14 June
1995, p 700, per Mr H. Burmester.
- Mr K Baxter, Submission No. 111,
Vol 7, p 1467.
- Hansard, SLCRC, 25 July
1995, p 813, per Ms Martin.
- Quoted in: The Hon. Justice M.
Kirby, Submission No. 41, Vol 2, pp 344-345.
- Mr G. Barnett, Submission No. 133,
Vol 8, p 1807.
- See: Department of Foreign Affairs
and Trade, Negotiation, Conclusion and Implementation of International
Treaties and Arrangements, Canberra, August 1994, which states at
para. 56:
The Minister for Foreign Affairs cannot recommend to Executive Council
that Australia become party to a treaty where the Federal or State legal
position would be at variance with obligations to be assumed under the
proposed treaty when it enters into force for Australia.[emphasis added]
- Mr A. Handberg, Submission No.
94, Vol 6, p 1215.
- Mr G. Barnett, Submission No. 133,
Vol 8, p 1807.
- Mr R. Stewart-Crompton, Submission
No. 146, Vol 9, p 2171.
- ACTU, Submission No. 76, Vol 4,
p 748.
- Department of the Parliamentary
Library, 'The World Heritage Convention in Australia', Research Note
No. 51, 27 June 1995, ISSN 1323-5664.
- Hansard, SLCRC, 14 June
1995, p 699, per Mr W. Campbell.
- Dr T. Meagher, Submission No. 108,
Vol 7, p 1364. See also Hansard, 15 May 1995, pp 285-286, per
Dr T. Meagher.
- Dr T. Meagher, Submission No. 108,
Vol 7, pp 1364-1366.
- Mr C. Evans, Submission No. 74,
Vol 4, p 662. See also Hansard, SLCRC, 15 May 1995, pp 335-339,
per Mrs Kopke.
- Mr G. Barnett, Submission No. 133,
Vol 8, pp 1810-11.
- Mr G. Barnett, Submission No. 133,
Vol 8, p 1810.
- Mr R. J. Neumann, Submission No.
101, Vol 6, p 1290 and Mr R.J. Neumann, Submission No. 147, Vol 9, p
2178.
- Hansard, SLCRC, 15 May 1995,
p 238, per Mr Hames.
- Hansard, SLCRC, 15 May 1995,
pp 258-60, per Mr Hames.
- Hansard, SLCRC, 15 May 1995,
p 259, per Mr Perrignon.
- Mr R. J. Neumann, Submission No.
101, Vol 6, p 1305.
- Senate, Hansard, 31 August
1995, p 790.
- Mr D. Baker-Gabb, Submission No.
44, Vol 2, 403.
- Mr B. Opeskin and Dr D. Rothwell,
Submission No. 73, Vol 4, p 647.
- Mr B. Davis, Submission No. 92,
Vol 6, p 1119.
- Mr R. Farley, Submission No. 3,
Vol 1, p 15.
- Hansard, SLCRC, 14 June
1995, p 633, per Mr J. Daley.
- Dr D. Honey, Submission No. 71,
Vol 3, p 587.
- Mr S. Hamilton, Submission No.
90, Vol 5, pp 1093-1094.
- Department of Foreign Affairs and
Trade, 'Environment - Australia's International Agenda', Canberra, No.
13, August 1994.
- Senate, Hansard, 1 September
1994, p 757, per Senator Chapman.
- Senate, Hansard, 1 September
1994, p 763, per Senator Faulkner.
- Senate, Hansard, 22 September
1994, p 1188.
- Hansard, SLCRC, 14 June
1995, pp 636-637, per Mr J. Daley.
- Hansard, SLCRC, 13 June
1995, pp 581-582, per Mr C. Clark.
- Hansard, SLCRC, 13 June
1995, pp 561; 615-616, per Mr J. Pickering.
- Hansard, SLCRC, 14 June
1995, p 755, per Mr C. Lamb.
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