Compliance with obligations arising under both international and domestic human rights laws requires effective monitoring systems.
Currently, Australia is subject to periodic review by UN treaty bodies established under each of the ICCPR, ICESCR, CAT, CRPD, CEDAW and CERD. These reviews provide an opportunity for a comprehensive analysis of the state of human rights in Australia and for a constructive dialogue as to how best to promote and protect these rights between the Government and independent international human rights experts. Australia has also accepted the jurisdiction of a number of UN human rights treaty bodies to hear and determine individual complaints regarding Australia.
In addition, the Special Procedures of the UN Human Rights Council may issue findings and recommendations on Australia under either country or thematic mandates.
However, while international scrutiny and accountability are important aspects of the promotion and protection of human rights, there are currently no formal domestic mechanisms to independently monitor and report on the implementation of the recommendations of UN treaty bodies or Special Procedures.
In light of this, the Human Rights Law Resource Centre has made a Submission to the Australian Government proposing that effective parliamentary and executive mechanisms be established to monitor implementation of and compliance with Australia’s human rights obligations.
In particular, the Centre considers that the Government should establish a Joint Parliamentary Committee on Human Rights to lead parliamentary engagement with and understanding of human rights issues and to monitor and report on the implementation of the Concluding Observations and Views of UN treaty bodies and the recommendations of the Special Procedures of the UN Human Rights Council.
This recommendation is consistent with the recent Concluding Observations of the UN Human Rights Committee on Australia, where the Committee stated:
“8. The Committee notes that the Covenant has not been incorporated into domestic law and that the State party has not yet adopted a comprehensive legal framework for the protection of the Covenant rights at the Federal level, despite the recommendations adopted by the Committee in 2000. Furthermore, the Committee regrets that judicial decisions make little reference to international human rights law, including the Covenant. (art.2)
The State party should: a) enact comprehensive legislation giving de-facto effect to all the Covenant provisions uniformly across all jurisdictions in the Federation; b) establish a mechanism to consistently ensure the compatibility of domestic law with the Covenant; c) provide effective judicial remedies for the protection of rights under the Covenant; and d) organize training programmes for the Judiciary on the Covenant and the jurisprudence of the Committee.
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10. While acknowledging the measures taken by the State party to reduce the likelihood of future communications regarding issues raised in certain of its Views, the Committee expresses once again its concern at the State party’s restrictive interpretation of, and failure to fulfill its obligations under the First Optional Protocol and the Covenant, and at the fact that victims have not received reparation. The Committee further recalls that, by acceding to the First Optional Protocol the State party has recognized its competence to receive and examine complaints from individuals under the State party’s jurisdiction, and that a failure to give effect to its Views would call into question the State party’s commitment to the First Optional Protocol. (Article 2)
The State party should review its position in relation to Views adopted by the Committee under the First Optional Protocol and establish appropriate procedures to implement them, in order to comply with article 2, paragraph 3 of the Covenant which guarantees a right to an effective remedy and reparation when there has been a violation of the Covenant.”
The position in Australia with respect to the role of parliament in the implementation of Concluding Observations and Views of treaty bodies can be contrasted with monitoring and implementation mechanisms developed in other jurisdictions, including South Africa, the Netherlands and the United Kingdom.
In the United Kingdom, for example, the work of the Joint Parliamentary Committee on Human Rights includes:
- scrutinising Government responses to adverse judgments by the European Court of Human Rights; and
- scrutinising the Government’s reports to the UN treaty bodies, the Concluding Observations of those treaty bodies, and the Government’s implementations of the recommendations contained therein.
The Council of Europe has recommended the model and modalities of the UK Joint Parliamentary Committee on Human Rights as a model for other member states.
In South Africa, all national reports submitted under human rights treaties are debated in parliament. In the course of debate, parliament holds public hearings, calls in ministers and requests documents and reports from a wide range of departments and citizens’ groups. Members of parliament are included in national delegations to the treaty bodies, ensuring that they better understand the treaty bodies’ recommendations.
In the Netherlands the law requires the government report to Parliament every four years on the implementation of the CEDAW before presenting its report to the Committee on the Elimination of Discrimination against Women. The concluding comments of the Committee are also presented to Parliament.
