Chapter 9

Trick or Treaty? Commonwealth Power to Make and Implement Treaties

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:

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:

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:

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:

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:

9.15 Mr Burmester, from the Attorney-General's Department, was more adamant that there was no conflict between the two Conventions, stating:

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:

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:

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:

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:

9.22 The Liberal Lawyers Association of Tasmania was also critical of the process of ratification of ILO Convention No 158. Mr Barnett stated:

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:

9.25 The Liberal Lawyers Association of Tasmania added to this criticism, stating:

9.26 In response to such criticisms, Mr Stewart-Crompton, of the Department of Industrial Relations, advised:

9.27 The ACTU also defended the Government's decision to ratify this Convention, stating:

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:

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:

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:

9.34 The use of the World Heritage legislation was of concern to the Liberal Lawyers Association of Tasmania. Mr Barnett stated:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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:

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]


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.


  1. Declaration is an expression of principle which is not binding on countries, whereas a Convention is a binding agreement at international law.
  2. P. Alston, 'Australia and the Convention', in P. Alston and G. Brennan, (eds), The UN Children's Convention and Australia, 1991: p 2.
  3. The Human Rights and Equal Opportunity Commission Act 1986 superseded the Human Rights Commission Act 1981.
  4. Mr K. Baxter, Submission No. 111, Vol 7, p 1466.
  5. 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.
  6. 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.
  7. Mr M. Hogan, Submission No. 141, Vol 9, pp 2104-2106.
  8. Hansard, SLCRC, 1 May 1995, p 25.
  9. 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.
  10. Hansard, SLCRC, 1 May 1995, p 50, per Mr C. Lamb.
  11. 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.
  12. Hansard, SLCRC, 25 July 1995, p. 823, per Professor H. Charlesworth.
  13. 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.
  14. Hansard, SLCRC, 14 June 1995, p 700, per Mr H. Burmester.
  15. Mr K Baxter, Submission No. 111, Vol 7, p 1467.
  16. Hansard, SLCRC, 25 July 1995, p 813, per Ms Martin.
  17. Quoted in: The Hon. Justice M. Kirby, Submission No. 41, Vol 2, pp 344-345.
  18. Mr G. Barnett, Submission No. 133, Vol 8, p 1807.
  19. 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]
  20. Mr A. Handberg, Submission No. 94, Vol 6, p 1215.
  21. Mr G. Barnett, Submission No. 133, Vol 8, p 1807.
  22. Mr R. Stewart-Crompton, Submission No. 146, Vol 9, p 2171.
  23. ACTU, Submission No. 76, Vol 4, p 748.
  24. Department of the Parliamentary Library, 'The World Heritage Convention in Australia', Research Note No. 51, 27 June 1995, ISSN 1323-5664.
  25. Hansard, SLCRC, 14 June 1995, p 699, per Mr W. Campbell.
  26. Dr T. Meagher, Submission No. 108, Vol 7, p 1364. See also Hansard, 15 May 1995, pp 285-286, per Dr T. Meagher.
  27. Dr T. Meagher, Submission No. 108, Vol 7, pp 1364-1366.
  28. Mr C. Evans, Submission No. 74, Vol 4, p 662. See also Hansard, SLCRC, 15 May 1995, pp 335-339, per Mrs Kopke.
  29. Mr G. Barnett, Submission No. 133, Vol 8, pp 1810-11.
  30. Mr G. Barnett, Submission No. 133, Vol 8, p 1810.
  31. Mr R. J. Neumann, Submission No. 101, Vol 6, p 1290 and Mr R.J. Neumann, Submission No. 147, Vol 9, p 2178.
  32. Hansard, SLCRC, 15 May 1995, p 238, per Mr Hames.
  33. Hansard, SLCRC, 15 May 1995, pp 258-60, per Mr Hames.
  34. Hansard, SLCRC, 15 May 1995, p 259, per Mr Perrignon.
  35. Mr R. J. Neumann, Submission No. 101, Vol 6, p 1305.
  36. Senate, Hansard, 31 August 1995, p 790.
  37. Mr D. Baker-Gabb, Submission No. 44, Vol 2, 403.
  38. Mr B. Opeskin and Dr D. Rothwell, Submission No. 73, Vol 4, p 647.
  39. Mr B. Davis, Submission No. 92, Vol 6, p 1119.
  40. Mr R. Farley, Submission No. 3, Vol 1, p 15.
  41. Hansard, SLCRC, 14 June 1995, p 633, per Mr J. Daley.
  42. Dr D. Honey, Submission No. 71, Vol 3, p 587.
  43. Mr S. Hamilton, Submission No. 90, Vol 5, pp 1093-1094.
  44. Department of Foreign Affairs and Trade, 'Environment - Australia's International Agenda', Canberra, No. 13, August 1994.
  45. Senate, Hansard, 1 September 1994, p 757, per Senator Chapman.
  46. Senate, Hansard, 1 September 1994, p 763, per Senator Faulkner.
  47. Senate, Hansard, 22 September 1994, p 1188.
  48. Hansard, SLCRC, 14 June 1995, pp 636-637, per Mr J. Daley.
  49. Hansard, SLCRC, 13 June 1995, pp 581-582, per Mr C. Clark.
  50. Hansard, SLCRC, 13 June 1995, pp 561; 615-616, per Mr J. Pickering.
  51. Hansard, SLCRC, 14 June 1995, p 755, per Mr C. Lamb.