Chapter 6 Optional Protocol to the Convention on the Elimination of All
Forms of Discrimination Against Women
The proposed treaty action is accession to the Optional Protocol to the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Parties to the Optional Protocol recognise the competence of the
Committee on the Elimination of All Forms of Discrimination Against Women (the
CEDAW committee) to receive and consider written complaints about alleged
violations of Australia’s obligations under CEDAW.
These obligations include access to and equal opportunities for women in,
political and public life, education, marriage, social security, health and
The CEDAW committee is a body of experts elected by State Parties to CEDAW, who
serve in their personal capacity. 
Australia has not previously signed the Optional Protocol, which was
adopted on 6 October 1999 and came into force on 22 December 2000. It can accede to the Optional Protocol, however, as it is a party to CEDAW. There
are currently 190 parties to CEDAW and 90 parties to the Optional Protocol.
There are two main facets to the Optional Protocol. The first is the
complaints procedure (Articles 2 to 7) and the second is the inquiry powers of
the CEDAW committee (Articles 8 to 10).
The Optional Protocol allows individuals or groups of individuals to
make complaints (communications) to the CEDAW committee about discrimination
once they have exhausted all domestic legal avenues.
The CEDAW committee can then issue views as to whether a breach of CEDAW has
occurred and make recommendations on methods to address this breach (Article 7).
In relation to the exhaustion of domestic remedies, the Protocol
provides the CEDAW committee with the power to consider a communication where,
in its judgement, ‘the application of such remedies is unreasonably prolonged
or unlikely to bring effective relief’ (Article 4(1)).
Articles 8 and 9 empower the CEDAW committee to conduct confidential investigations
into alleged systemic or grave discrimination, as opposed to individual
discrimination, by a Party unless that Party has made a declaration under
Article 10 that it does not recognise the competence of the CEDAW committee to
Parties to the Optional Protocol are also obliged to:
n Ensure individuals
under their jurisdiction are not subject to ill-treatment or intimidation as a
consequence of communication with the CEDAW committee (Article 11);
n Report annually on
their activities under the Optional Protocol (Article 12); and
n Publicise CEDAW and
the Optional Protocol and facilitate access to information about the views and
recommendations of the CEDAW committee (Article 13).
The Committee notes that as findings are made against State Parties,
this effectively means that if a complaint was made in Australia in relation to discrimination that has occurred in, for example, the workplace or
private sector, the CEDAW committee’s response would be directed at the
Government representatives informed the Committee that the views of the
CEDAW committee are non-binding and can only guide Australia in its
implementation of international law. Australia would not be obliged to conform
to the CEDAW committee’s views if it believed there was a better way to
implement its obligations under CEDAW.
Australia made two reservations to CEDAW in relation to maternity leave
and combat duties for women in the Defence Force. Communication could not be
entered into by the CEDAW committee on issues relevant to these reservations as
Australia is not bound by the obligations in the articles to which the
reservations relate. 
Reasons for Australia to take treaty action
Accession to the Optional Protocol would give women in Australia a greater opportunity to contest the implementation and application of human
rights. It would also increase accountability in promoting gender equality and
non-discrimination between men and women. 
The Government considered that the Optional Protocol would:
n provide women with an
additional mechanism outside Australia’s judicial and political context;
n demonstrate the
Government’s strong commitment to promoting the elimination of discrimination
against women and the standards enshrined in CEDAW; and
n demonstrate the
Government’s priority to addressing global challenges such as the protection of
The Committee received a number of submissions supporting accession to
the Optional Protocol. Many submitters considered that the Protocol was
important to bring CEDAW into line with other major human rights treaties that
contain complaint mechanisms, including the Convention on the Elimination of
All Forms of Racial Discrimination, the Covenant on Civil and Political Rights
and the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment.
The Human Rights Law Resource Centre argued that Australia’s experience as a party to the communication procedures under these treaties:
… makes it clear that international communication mechanisms
do not undermine democracy or introduce a Bill of Rights ‘through the back
The Committee was interested in the international scrutiny that
accession to the Optional Protocol would provide and the example that would be
set for other countries whose anti-discrimination measures may not be as fully established.
The Attorney-General’s Department and the Office for Women advised that the
Government was prepared to have its domestic remedies critiqued at an
international level and that:
… the government does see part of the justification for its
becoming party to the optional protocol is to set just an example to other
countries. The government engages other countries on a regular basis on a range
of human right issues. It has a number of ongoing bilateral human rights
dialogues with other countries in our region wherein human rights issues are
raised with them, including the sort of issues that are dealt with under the
convention. It would be fair to say that the government would regard its
standing to do that to be enhanced by its becoming a party to the optional
The Pacific region is one area where the Government is working to
support countries to become a party to the Optional Protocol.
A number of submissions provided support for the inquiry powers of the
CEDAW committee. Amnesty International Australia
[t]he inquiry procedure allows the Committee to focus
attention on widespread practices affecting women such as lack of equal
opportunities in education, politics or the work place; sexual exploitation; or
abuses that cross borders and involve multiple governments such as in
trafficking or violence against women in situations of armed conflict. It
provides for an in-depth examination of the underlying causes of discrimination
against women and can focus on abuses that would not normally be submitted to
the Committee by means of the individual complaints procedure.
In evidence, Government representatives indicated that the Government did
not intend to make a declaration under Article 10 so would recognise the
competence of the CEDAW committee to undertake inquiries.
The NSW Council for Civil Liberties argued that there should be a
statutory mechanism within Australia to ensure that CEDAW committee findings
are addressed. This view was echoed by
the Human Rights Law Resource Centre.
Accession to the Optional Protocol was also supported on the basis that
the jurisprudence contributed by the CEDAW committee would benefit and inform
national courts and lawmakers as well as other international human rights
The obligation under Article 13 to promote public awareness and
understanding of CEDAW and the Optional Protocol was considered important:
For women to be able to claim their human rights and
fundamental freedoms, it is important that they know what those rights and
Opposition to the Protocol
The Committee received a number of submissions from concerned parties
opposing Australia’s accession to the Optional Protocol.
The key issues raised in these submissions were:
n allowing complaints
to be considered by a UN Committee could undermine Australian domestic law and
n the present
mechanisms within Australia to protect women’s rights and deal with complaints
n the Optional Protocol
could lead to increased liberalisation of Australian laws; and
n the CEDAW committee
lacks neutrality and has a particular ideological focus.
One submitter argued:
Our democratically established laws are made and upheld by
Australians, who take human rights abuse and the rights of Australian women
very seriously. This treaty deals with matters which should be decided in the
Australian parliament and courts. There should be no final appeal to an United
Similarly, another participant stated:
It would be imprudent for Australia to sign away the very
serious issue of women’s human rights to an external ideological committee with
an unimpressive record.
Access to the CEDAW committee
The Committee questioned how realistic it is to expect that many women
would be able to make a complaint to the CEDAW Committee without some form of
assistance. The Committee was informed that complaints could be made by other
parties on behalf of an individual, such as a lawyer or non-government
organisation. The Office for Women is
also producing an information package on CEDAW, which will include information
about the Optional Protocol.
The Government considered that as Australia has been a party to CEDAW
for 25 years, it could expect that there would be relatively few communications
from individuals or groups in Australia.
CEDAW committee investigations to date
The Committee notes that the CEDAW committee has considered 10
communications made against State parties in the last eight years with
violations found in four cases. In each of these cases,
while the countries in question accepted some of the recommendations, available
evidence suggests that none of the recommendations were fully implemented.
The Sex Discrimination Act 1984 implements Australia’s obligations under CEDAW. As the Optional Protocol does not introduce any
substantive new obligations, no implementing legislation or policy changes
would be required.
Relevant Commonwealth Ministers and agencies and State and Territory Governments
were consulted about the Optional Protocol and have provided support for
accession. Submissions received by the Government as part of its public
consultation process also supported accession to the Optional Protocol.
This included the four women’s secretariats funded by the Department of
Families, Housing, Community Services and Indigenous Affairs, which represent
38 different non-government organisations.
Conclusions and recommendation
While the Committee concurs with the view that the Optional Protocol
will provide an additional mechanism to protect women’s rights outside the
domestic remedies available through Australia’s sex discrimination laws, the
Committee has some concerns about how far the CEDAW committee can actually
effect change given the relatively few investigations that have been undertaken
in the past eight years.
The Committee considers, however, that accession to the Protocol will
demonstrate Australia’s commitment to human rights and allow international
scrutiny of this commitment to take place. It therefore supports binding treaty
action being taken.
The Committee supports the Optional Protocol to the
Convention on the Elimination of All Forms of Discrimination Against Women
and recommends that binding treaty action be taken.