Australians are subject to the Queen of England.
Australia is a member state of the United Nations.
Australia is a member of the Q20.
Australian may also be prosecuted in the International Criminal Court. For example, 'there is little doubt that in theory Australian soldiers could be charged and prosecuted before the ICC.' A domestic prosecution excludes the ICC from futher involvement because of its rule against double jeopardy.
Australia is signatory to various international agreements and statutes, which we are therefore subject to. Some of these are:
- United Nations Convention on the Rights of the Child
- Protocol on Environmental Protection to the Antarctic Treaty
- Convention for the Protection of the World Cultural and Natural Heritage
- International Convention on the Elimination of All Forms of Racial Discrimination
- UN Convention on the Elimination of All Forms of Discrimination against Women(CEDAW)
- Treaty on the Non-Proliferation of Nuclear Weapons
- Comprehensive Nuclear Test-Ban Treaty (CTBT)
- Convention on Nuclear Safety
- United Nations Convention Relating to the Status of Refugees
- UN Convention against Transnational Organised Crime
- Protocol against the Smuggling of Migrants by Land Sea and Air
- United Nations Framework Convention on Climate Change (UNFCCC)
- Kyoto Protocol
- Convention on the Rights of Persons with Disabilities
- Watercourses Convention
- Convention on the Law of the Sea
- Convention on Contracts for the International Sales of Goods (1980)
- Convention against Torture
- Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea
- Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
- Convention on Biological Diversity
- Joint Convention on the Safety of Spent Fuel Management and the Safety of Radioactive Waste Management
- Convention against Corruption
The United Nations (UN) has put in place many treaties, conventions and protocols over its history. These are intended to address issues of international significance and to put down in writing the universal agreements or standards that should be upheld. Many of these conventions are uncontroversial in Australia and are unlikely to be breached, but might be controversial or breached in other parts of the world.
An example of this might be the United Nations Convention on the Rights of the Child, which seeks to set out the civil, political, economic, social and cultural rights of children. It was adopted into international law in 1989 and came into force in 1990, after being ratified by the required number of nations. The Convention acknowledges that every child has certain basic rights, including the right to life, his or her own name and identity, to be raised by his or her parents within a family or cultural grouping and have a relationship with both parents, even if they are separated. It is monitored by the Committee on the Rights of the Child. Most UN member states have ratified this Convention.
In Australia these rights would generally not come into question, but in countries (usually developing countries) where children are put into the workplace or used as soldiers, these conventions on children's rights need to be enforced so that children around the world have equal rights, access to justice and economic and personal security.
Governments agree to treaties in the first instance. Treaties are then 'ratified'. Ratification is the process of adopting an international treaty by a country's legislature, constitution or other nationally binding document (such as an amendment to a constitution). A convention must be ratified by a certain number of countries before it becomes binding at international law. It is important to understand that this does not mean that it has any legal binding in the internal law of any given country.
A convention only becomes binding at law in a country when it is implemented into the law. Implementation comes through the passage of legislation which sets down as domestic law the provisions of the convention or treaty. An example of this would be the Antarctic (Environmental Protection) Legislative Amendment Act 1992 (Cth), which implemented the international Protocol on Environmental Protection to the Antarctic Treaty, which was opened for signature in 1991 and came into force in 1998. It is the choice of the parliament whether to do this at all, so some conventions may never become binding at law in a country. They act more as guidelines for countries to follow or as official agreements about the universal standards for the treatment of people or environments.
One historical example of the implementation of a convention with great effect on the internal issues of a country is the Franklin Dam case. In the 1980s there was widespread opposition to the construction of the Franklin Dam, which would have drowned the Franklin River valley as part of a hydroelectricity project. The dispute became a federal issue the following March, when it was campaigned on by the victorious government of Bob Hawke.
A legal battle between the federal government and Tasmanian State government followed the Hawke victory. In a landmark High Court decision, it was ruled that the Hawke Government had the power to overrule Tasmania in the Franklin Dam case because Australia was a signatory to a World Heritage agreement, so this issue fell under the Commonwealth's powers over 'external affairs'. Section 51 (xxix) of the Constitution allows the federal government to make laws based on treaties signed with other countries, and thus the federal government could make laws which would overrule the State of Tasmania.
The Convention for the Protection of the World Cultural and Natural Heritage was passed by the UN in 1972 and was ratified and entered into force in 1975. During the 1983 Franklin Dam dispute the federal government passed the World Heritage Properties Conservation Act 1983 (Cth) to implement the Convention. This law ended the Tasmanian government's plans. See animation
This case is of particular significance as it effectively established that under the external affairs power of Section 51 (xxix) the federal Government has the scope to enact legislation on any matter which is covered by an international convention or treaty. While this greatly enlarges the scope of federal power, it also brings about responsibility for following the provisions of international conventions or treaties.
Several High Court decisions have substantially increased the extent to which Australians are affected by the provisions of international treaties. The domestic significance of treaties was reinforced in 1995, when the High Court handed down its decision in The Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995). In this case the court blocked a deportation order made against a Malaysian man convicted of drug trafficking.
The court held that the effect of the deportation on the man's children had not been properly considered, and in such cases, the United Nations Convention on the Rights of the Child obliges Australia to give paramount consideration to the best interests of children. The court stated that there was a legitimate expectation that all government decisions would be made in accordance with the terms of international treaties. The court felt that Australia must signal that we regard treaties as effectual and binding agreements.
Another example of the Australian government's implementation of a UN convention is in the area of racial discrimination. In New York in 1966 the UN passed the International Convention on the Elimination of All Forms of Racial Discrimination, and it was ratified in 1975. In the light of this convention, the Labor government of Gough Whitlam passed the Racial Discrimination Act 1975 (Cth), which made it illegal to use racial criteria for any official purpose, such as hiring or dismissal of employees. This effectively implemented the provisions of the UN convention.
In a similar way, the implementation of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) led to several legislative milestones in Australia. The convention was signed in New York in 1979 and ratified in 1983. As of the year 2000 there were 165 states party to CEDAW.
The UN created CEDAW as a way of recognising that despite various international human rights conventions already in existence, extensive discrimination against women continues to exist. It is aimed at promote equal rights for women and at improving the status of women by eliminating gender based discrimination. CEDAW recognises that discrimination against women violates the principles of equal rights and is an obstacle to the equal participation of women in political, social, economic, community and cultural life.
Australia's commitment to the full implementation of CEDAW and to the actualisation of the rights of women was reflected in such legislative milestones as the passing of the Sex Discrimination Act of 1984 (Cth) (and its Amendment of 1995), the Human Rights and Equal Opportunity Act of 1986 (Cth) and its amendments, and the review of the Affirmative Action (Equal Employment Opportunity for Women) Act of 1986 (Cth). In administrative terms, the convention led to initiatives such as the establishment of the Office of the Status of Women and the Office of the Sex Discrimination Commissioner.
Australia is a signatory party to other important international conventions which have been implemented to varying degrees in legislation. The issues covered by these conventions - issues such as nuclear energy, climate change and refugees - are broad and complex and change with the political circumstances of any given moment. As such, they are not so simple to implement as, say, the conventions on anti-discrimination or the rights of children.
During the Cold War and afterwards, Australia has been active in signing on to the various nuclear security treaties. Australia is a signatory to the Treaty on the Non-Proliferation of Nuclear Weapons, signed in 1968 and entering into force for Australia in 1973. Australia is also a signatory to the Comprehensive Nuclear Test-Ban Treaty (CTBT) opened for signature in 1996 and coming into force in 1998. We are also a signatory to the Convention on Nuclear Safety, signed in 1994 and entering into force for Australia in 1997.
The United Nations Convention Relating to the Status of Refugees sets out to define who is a refugee, and lays out the rights of individuals who are granted asylum and the responsibilities of nations that grant asylum. The convention also specifies which people do not qualify as refugees, such as war criminals.
Article 1 of the Convention provides the definition of a refugee:
A person who is outside his/her country of nationality or habitual residence; has a well-founded fear of persecution because of his/her race, religion, nationality, membership in a particular social group or political opinion; and is unable or unwilling to avail himself/herself of the protection of that country, or to return there, for fear of persecution.
This convention was passed at a special UN conference in 1951, and was initially intended to apply only to European refugees in the wake of World War II. In 1967, a UN Protocol was approved expanding the convention's scope and removing any geographical and time limits. There are now 145 signatories to either or both the convention and protocol.
Within the refugee context Australia has also joined the UN Convention aimed at strengthening the fight against transnational organised crime and people smuggling. In 2004 Australia ratified the UN Convention against Transnational Organised Crime and the Protocol against the Smuggling of Migrants by Land Sea and Air. Australia was active in the negotiation of these treaties and is among the first Western countries to ratify them.
Australia has taken what some see as a controversial stance on the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol, an agreement made under the UNFCCC. The countries that ratify this protocol commit to reduce their emissions of carbon dioxide and other greenhouse gases. They can alternatively engage in emissions trading if they maintain or increase emissions of greenhouse gases. The Kyoto Protocol covers more than 163 countries around the world and over 65 percent of global greenhouse gas (GHG) emissions. Notable exceptions include the United States and Australia. The Australian Government, under John Howard, has refused to join the protocol, arguing that it would cost Australians jobs, and that Australia is already doing enough to cut emissions. In 2005, Australia was the world's largest emitter of greenhouse gases per capita.