Page 2533 - Week 12 - Wednesday, 15 November 1989
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same as a treaty. This is a United Nations treaty. After a treaty is signed by the Commonwealth Government it would, one or two years later, be ratified. At that time it would become law in Australia. The situation is - and I note that the Chief Minister makes the point - that there are some grave confusions about whether or not UN conventions are valid law in this country.
According to Dr David Mitchell, eminent constitutional lawyer, the provisions of section 47 of the Human Rights and Equal Opportunity Commission Act 1986 enable the Minister to bring into Australian law the full weight of a UN convention simply by gazetting it in the Government Gazette. Thus we could see a UN convention overriding the laws of the ACT Legislative Assembly, quite possibly other Federal laws and possibly even the Australian constitution itself. All this could occur without due parliamentary debate, at the discretion of a Minister acting in collusion with senior bureaucrats.
Most members of parliament in Australia, and I do not exclude this Assembly, are basically blissfully unaware of the problems of UN treaties or conventions. Unfortunately what usually happens is that unless a member of parliament, or his staff, can go through and understand every detail of these conventions or the government gazettal, and understand their implications, things could be introduced into law that are of grave concern to all Australians and that have not had due public or parliamentary process and debate.
These United Nations conventions can be introduced under the external affairs powers of the Australian constitution. On page 10 of the August issue of the Institute of Public Affairs journal, there is an article by Professor Colin Howard, the Hearn professor of law at the University of Melbourne entitled "The explosive implications of the external affairs power". It says:
The legislative power of section 51 (xxix) was included in the Constitution to enable the national government to deal appropriately with other national governments on matters of legitimate national concern which arose in the international arena. It has been turned into an instrument of domestic political coercion manifestly contrary to both the word and the spirit of the very Constitution in which it appears.
There is currently confusion about the rights of the child convention within the Government and within governmental department areas. The information officer of the Human Rights and Equal Opportunity Commission in its Sydney office indicated recently that the convention was to be signed by the Federal Government in December.
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