Conventions to which australia is a signatory

Australia has signed and ratified:. For example:. These treaties, which Australia has voluntarily entered in, set out in clear terms Australia's international human rights obligations. Under international law, Australia is bound to comply with their provisions and to implement them domestically.

The Law Council uses these instruments to evaluate Australia's human rights performance, particularly when assessing the appropriateness of proposed legislative or policy reforms. The Law Council strongly encourages the Australian Government to follow up in a timely and effective manner to concluding observations and recommendations of United Nations Human Rights Council and international human rights treaty bodies, in accordance with relevant reporting guidelines and with the participation of human rights and civil society organisations.

Professor Cheryl Saunders argues that:. The presence of a Treaties Council should promote wider dissemination of treaty texts which in turn should promote greater public debate and consultation. Certainly there would be increased scrutiny of treaties prior to Australia being bound than currently exists.

The Treaties Council would be in an informed position and would be able to make recommendations to Parliament regarding treaty texts being considered by the Executive Government. The disadvantages are again that this would: curtail the freedom of the Executive to negotiate and sign treaties; cause some delays in the process of treaty-making; duplicate some of the existing, informal procedures for consultation.

Parliament could legislate to require treaties to be tabled after signature but prior to ratification. In theory, the Executive already follows this procedure which is called the Ponsonby Rule.

However, in practice there is often little opportunity for Parliamentary debate and until the 21 October when the Government changed its practice, ratification had already occurred before the treaty was tabled.

One outcome of adopting this sort of procedure is that it would change the status of ratified treaties in Australian domestic law. Justice Evatt is of the opinion that the more parliamentary involvement you have prior to ratification the more likely it is that a treaty will be self-executing once ratified, although of course an amendment to the Constitution would be required in Australia to achieve this.

By self-executing, Justice Evatt is referring to the possibility that the treaties will be part of Australian domestic legislation without implementing legislation. This would involve approving the text of a redefinition of the External Affairs power and then submitting that text to a referendum.

If approved then the Constitution could be amended to restrict the operation or extent of the External Affairs power. This issue has been canvassed by the Constitutional Commission in their report. If it were possible to suitably redefine the External Affairs power then the advantage would be that the Government would no longer have the legislative power to enact legislation that is otherwise unconstitutional.

An amendment to the Constitution of this type does not prevent the Executive from entering into international treaties and committing Australia. It merely prevents Parliament from enacting federal implementing legislation that would otherwise be unconstitutional. Therefore, the amendment would not answer the criticisms of the current system where Australia can be bound without Parliamentary involvement.

Perhaps the greatest difficulty with this proposal is that it is very difficult to agree on a suitable amendment that guarantees to redefine the External Affairs Power to promote certainty in its scope whilst maintaining the balance between State powers and Federal powers.

Quite clearly, the External Affairs power is one of the fundamental powers in the Constitution and it is necessary for the Government in power to have some sort of authority to deal with matters external to Australia. Without such a power, Australia would have difficulty functioning as a sovereign state at the international level. Even if a suitable redrafting of the External Affairs Power were to be agreed upon, there are other arguments against utilising this mechanism to alter the treaty-making procedure.

For example, there is an argument that for the Commonwealth to enact legislation implementing treaty obligations is more efficient in terms of resources than for each State and Territory to enact its own legislation. To quote Sir Anthony Mason:. Although of course a number of Australia's treaty obligations are left to the States to implement and so in practice there is a degree of State autonomy. The option of redefining the External Affairs power does not seem to attracted much academic support.

Apart from the above considerations, the practical difficulty with this option is that, from an historical perspective, proposed changes to the Constitution have been largely unsuccessful when put to a referendum. Of the forty-two proposals for amending the constitution put to a referendum since Federation, only eight have been accepted. A further two proposals relating to military conscription were also rejected.

The increasing range of international multilateral instruments covering important and universally recognised areas of human rights, environmental protection and the division of global resources are clearly intended to benefit humanity. Australia gains benefits from aspiring to the sorts of ideals that are contained in those instruments. Nevertheless, the underlying principle that the Executive should not be able to increase its constitutional powers by ratifying instruments is a serious consideration.

Clearly there has been a degree of concern expressed on this issue. This paper presents the options available if a change to the current system were contemplated. All options have their advantages and their disadvantages. However, it seems as though the reinstatement of the Ponsonby Rule would be the simplest method and the establishment of a Treaties Council would facilitate the most community discussion.

Care would need to be taken not to interfere with Australia's role in the negotiation process of major international treaties. Also, delays between signature and ratification should be avoided where possible. There is also an argument for adopting a separate regime for those treaties that deal with human rights or matters of an urgent nature, in order to avoid delays. Whether or not any change to the current system is required is really a political issue and whatever the outcome, Australia should hope to maintain its international reputation and strive to have the best possible domestic legislation.

The American Constitution makes external affairs an exclusively federal power. The President is able to conclude foreign treaties with the advice and consent of the Senate. Ratification of foreign treaties is a legislative act. However, once such treaties are ratified article VI 2 states that they become part of the 'supreme Law of the Land' and equal to acts of Congress and even to the Constitution itself.

A self-executing treaty is one that is sufficiently clear and precise in its terms that courts can apply it as if it were a statute. If a given treaty is not sufficiently clear and precise then domestic implementing legislation will be required. Interestingly, Congress is able to subsequently alter or repeal a treaty. This leads to the bizarre situation whereby Congress can repeal a treaty but the United States as a whole remains accountable to other treaty parties!

The American system has not always worked smoothly with some extensive delays between signature and ratification resulting in treaties hanging in limbo for many years. If Australia adopted a system of parliamentary ratification 41 then the treaty would become law upon ratification by Parliament.

A change to the Constitution would be required to achieve this. The NDA provides a national framework and key areas for reform of government support to services for people with disability.

It specifically outlines the respective roles and responsibilities of the Commonwealth and state and territory governments. The Disability Discrimination Act Cth DDA includes a broad definition of disability and prohibits both direct and indirect discrimination against people on the basis of disability across a range of areas.

The objects of the DDA include:. Amendments to the DDA were proposed in the course of the project to consolidate existing Commonwealth anti-discrimination laws into a single Act. These include:. At the time of writing, the AHRC had not yet released its final report. The inquiry is due to report in September National Reduction of Seclusion and Restraint Project—a national project which will analyse the use of seclusion and restraint in the context of mental health.

It aims to identify what factors drive current practice and changes in service delivery to evaluate how these factors can lead to best practice. The pilot will develop, trial and independently evaluate a supported decision-making framework for people with disability, their families, carers, advocates and service providers in NSW. At the time of writing this Issues Paper it was unclear what the terms of reference for the review will include.

To the contrary, health, discrimination and human rights legislative and service regimes that exist around Australia, particularly in the ACT, demonstrate the commitment of our society to inclusiveness. National strategies and action plans on health and disability highlight the importance of liaising with those from a CALD background. To suggest in their very first contact with Australia that people with a disability are not valued contradicts these aims and goals.

The Cabramatta Community Centre observed: We note that Australia sought to exclude the migration health requirement from its obligations under the United Nations Convention on the Rights of Persons with Disabilities, where these requirements are based on legitimate, objective and reasonable criteria, through the declaration that was made upon ratification Before considering the significance of the Disability Convention for the current inquiry, it is useful to establish what general obligations are imposed on Australia, and other treaty signatories, under international law.

While treaty obligations vary, and the debate about the relationship between international and domestic law continues, three practical obligations can be considered to apply: the Vienna Conventions on the Law of Treaties provides that treaties are governed by international law not domestic law; State Parties must ensure their domestic law permits them to meet their treaty obligations; and a State Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

While not domestically enforceable, treaties may impose obligations on a State Party to ensure their domestic laws are consistent with, and do not impose obstacles to, compliance.

There is thus potential for international treaties to influence the formation and administration of domestic law and to aid its statutory interpretation. Mr Teoh, a Malaysian national married to an Australian citizen with whom he had children, was refused permanent residency on a drug trafficking charge and was to be deported under the Migration Act In the judgment on the case, the majority determined that there had been a breach of natural justice, as the Immigration Department had failed to invite Teoh to make a submission on whether a deportation order should be made, contrary to its obligations.

The Teoh case thus established a principle that Government and its agencies will act in accordance with the terms of a treaty, even where those terms had not been incorporated into Australian law. Many submitters considered that this puts Australia at odds with its international obligations to ensure domestic legislation is free from discriminatory provisions. Many submitters raised perceived inconsistencies between the Health Requirement and the Disability Convention.

In particular, it was held that the Health Requirement is at odds with the certain articles of the Disability Convention, namely 4, 5 and Briefly: Article 4 which provides fundamental protections against discrimination in obliging signatories State Parties to: …undertake to ensure and to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention; …take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities.

However, in relation to the Disability Convention, the United Nations Human Rights Committee General Comment Non-Discrimination also provides that: …not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the covenant.

Many submissions cited the cases of Drs Moeller and Abdi and Mr Kayani as exemplars of the failure to provide equal and fair treatment for people with disability under the current migration health requirement, in contravention of Articles 5 and Cynthia Sierra Muir wrote about her struggle to keep her sister Carmen, her legal ward, from being sent back to Spain. As discussed earlier, Carmen had no family in Spain but was refused permanent Australian residency because of her intellectual impairment.

Some legal experts also supported the view that Article 18 demands equal treatment of people with a disability under migration law. The Committee sought clarification from the Law Institute of Victoria in relation to Article The LIV notes that international law does not confer on non-citizens a general right to enter a foreign country and Article 18 of the UN Disabilities Convention does not confer any such right.

A country is therefore entitled to refuse entry to non-citizens on the basis of legitimate, objective and reasonable criteria. In applying the proportionality test, however, LIV did not think the migration criteria compatible with Article 5 in that the health criteria are applied in a blanket way, and not balanced proportionately against the right to equal treatment. Dr Saul believes that the current migration arrangements fail to meet equal protection obligations under the Disability Convention.

In his evaluation Dr Saul applied various tests to determine consistency between obligations under the Disability Convention and the Migration Act exemption under s 52 of the Disability Discrimination Act The focus of this assessment was primarily, but not exclusively, the migration Health Requirement.

Consideration in particular was given to obligations under Disability Convention Articles 4, 5 and It was the opinion of Dr Saul that Article 18 in itself does not guarantee freedom of movement given Government priorities to safeguard public health. There may thus be differential treatment compared with other visa applicants… Indirect discrimination may potentially arise where [Migration] Act sets standards of health requirements which the disabled do not or cannot meet.

In particular: Failure to take into account the benefits as well as the costs of admitting people with a disability may cast doubt on whether protection of the health system alone is a sufficiently reasonable and objective policy to justify differential treatment on the basis of disability.

Castan Centre for Human Rights Law and Rethinking Mental Health Laws Federation Fellowship stated: A provision that differentiates applicants based on whether they have a disease or condition is a distinction on the basis of disability. It impairs those visa applicants who have disabilities from obtaining immigration status on an equal basis with others, as they have to meet additional criteria that are inherently hard to meet for a majority of people with long-term impairments.

According to the CRPD this constitutes discrimination. Ethnic Disability Advocacy Centre identified indirect discrimination as the consequence of the costing measures: Indirect discrimination against refugees and migrants with disability occurs because the threshold of the health test is set too low to adequately balance the interests of non discrimination against people with disability with the preservation of scarce health resources.

Thus, in some cases the health assessment may lead to discrimination that is not proportionate to the policy objective of preserving health resources for all Australians. The real issue is the balancing process between the costs and the benefits. Given Australia has a developed framework which prohibits discrimination under Australian law in the Disability Discrimination Act DDA , the Committee next evaluates the effect of the migration exemption for the treatment of people with a disability under the Health Requirement.

As outlined in Chapter 2, the DDA makes disability discrimination unlawful and aims to promote equal opportunity and access for all people with disabilities within Australia. Part 2, Division 5 of the DDA currently provides for a number of exemptions to the Act including for defence peace keeping purposes, superannuation and insurance and, at s 48, on the basis of infectious diseases to protect public health.

However, s 52 also exempts the application of the DDA to Migration law and regulations so that: Divisions 1, 2 and 2A do not: affect discriminatory provisions in: the Migration Act ; or a legislative instrument made under that Act; or render unlawful anything that is permitted or required to be done by that Act or instrument.