Australia's Ratification of the International Covenant on Civil and Political Rights: Endorsement or Repudiation?

Abstract

ON August 13, 1980 Australia ratified the International Covenant on Civil Political Rights, fourteen years after it was adopted by the United Nations and four years after it came into force.' This ratification is a reflection of the particular difficulties federal States encounter where the subject-matter of a treaty lies wholly or partly within the jurisdictional competence of the constituent federal units. In order to overcome this constitutional impediment to treaty participation the Commonwealth and States agreed at the October 1977 Premiers' Conference on certain procedures to facilitate the ratification and implementation of treaties. 2 The Commonwealth agreed to consult with the States before deciding to legislate to adopt or implement a treaty that affects a legislative area traditionally regarded as being within the responsibilities of the States. 3 Ratification of the International Covenant on Civil Political Rights was possible only after extensive consultative discussions between the Commonwealth and State Ministers at the Meeting of Ministers on Human Rights. Indeed the Attorney-General has described the ratification as an important achievement the area of the Government's Federalism Policy. 4 Ratification was achieved on the basis of extensive reservations and declarations limiting Australia's international obligations relation to specific provisions of the Covenant.5 The first of these reservations represents an attempt to conform, at least spirit, with the agreement reached at the Premiers' Conference to insert a federal clause treaties involving matters governed by State law. While the International Covenant does not include a federal clause, Article 2(2) requires that a State shall give effect to the rights recognised the Covenant in accordance with its constitutional processes. Australia purports to advise that its constitutional process is that of a