EDITORIAL: by Peter WestmoreNews Weekly
Changes needed to preserve our democracy
, September 20, 2003
A timely new warning about the danger to Australia's independence from its accession to international treaties was furnished by the recent decision by the UN Human Rights Committee that a Sydney man, Edward Young, had been discriminated against because the Federal Department of Veterans' Affairs had refused him a war service pension, after the death of his long-time partner, Larry Cains.
Under the terms of the decision, Australia is under an obligation to comply, and has been given 90 days to respond to it.
The Veterans' Entitlement Act grants benefits only to heterosexual spouses or de facto partners of dead veterans clearly because it is intended to assist the children and dependent spouses of war veterans.Rejected
Before taking his case to the UN Human Rights Committee, Mr Young's case was rejected by the Veterans' Review Board, the Human Rights and Equal Opportunities Commission and the Repatriation Commission.
The decisions of each of these bodies are subject to Australian laws which protect individual rights, and if there had been any merit in his case, Mr Young could have appealed to the Australian courts. Instead, he took his case to the UN Human Rights Commission.
Effectively, the UN Human Rights Committee also found that three Australian tribunals discriminated against Mr Young, including the Human Rights and Equal Opportunities Commission which was established to implement Australia's obligations under the UN International Covenant on Civil and Political Rights (ICCPR)!
It is instructive to examine how the UN Human Rights Committee is constituted, and the nature of its deliberations.
It consists of representatives of states which have signed a protocol allowing their citizens to take action against them. According to a statement issued by the UN Secretariat on September 3, the Committee considered a total of 32 cases, over a period of about three weeks. This would have allowed about half a working day on each case, hardly comparable to the time spent by Australian tribunals, under Australian law, to consider this matter.
This case is just the latest in which UN tribunals, under a range of international treaties, have claimed the right to over-ride laws determined democratically within Australia.
They include the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the UN Convention on the Elimination of all Forms of Racial Discrimination; the UN Convention on the Prevention and Punishment of the Crime of Genocide; the Kyoto Protocol; and various ILO Conventions.Treaties' reach
As the former Chief Justice of the High Court of Australia, Sir Harry Gibbs, told the Samuel Griffith Society in November 2000, "There is hardly an area of governmental activity which these treaties do not touch."
The Committees established by the UN to oversee the implementation of these treaties are nominated by the countries who have signed them. In Sir Harry Gibbs' words:
"... in practice this allows a nation to nominate anyone who has not got a criminal record. The nations which win the right to make nominations to Committees need not themselves be notable exemplars of human rights. The Committee which decided against Tasmania ... included representatives from Senegal and Yugoslavia but none from Australia."
It is surely time to end the abuses which currently arise from the operation of these UN bodies. One way would be for Australia to withdraw from those Covenants which allow these bodies to exercise authority over Australia; but this would be unlikely to succeed, given the composition of the Australian Senate, where the balance of power is held by the Democrats and Greens, who strongly support the encroachment of UN power.Alternative
The alternative way forward was suggested by Professor Colin Howard, Emeritus Professor of Law at Melbourne University, who highlighted the fact that these issues have arisen because the Australian Constitution has been interpreted far more widely than the Founding Fathers, and most Australians, ever intended.
Professor Howard suggested a straightforward amendment to section 51 of the Australian Constitution to prevent it being given a meaning and effect that Australians clearly do not want.
Specifically, he suggested a Constitutional amendment which would state that no law would apply unless it had been "made at the request or with the consent of the State."
The Federal Government, and specifically the Prime Minister, would win widespread approval by giving the Australian people the opportunity to vote on this proposal at a referendum.
- Peter Westmore is President of the National Civic Council