Australian Journal of Human Rights
This paper presents the Australian Government's perspective on the individual communications procedures under the International Covenant on Civil and Political Rights (ICCPR), the Convention of the Elimination of All Forms of Racial Discrimination (CERD) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT). It will deal with the Government's approach to pleadings in these matters and explain some aspects of the process, though it will not address the question of the Government's response once the final views of the Committee have been received.
It is now seven years since the Optional Protocol to the ICCPR entered into force in Australia and almost six years since the declarations under Articles 14 of the CERD and Articles 22 of the CAT came into effect. While it is too soon to evaluate fully the individual communications procedure as a mechanism for the implementation of human rights in Australia, it is timely to develop an understanding about the nature of the process. This paper will focus on the Optional Protocol, however, the analysis is equally relevant to the complaints procedures under Article 14 of the CERD and Article 22 of the CAT respectively. It will also offer some practical guidance to those wishing to use the Optional Protocol process.
There have been 29 communications lodged against Australia under the Optional Protocol procedures. The majority of these communications have been lodged with the Human Rights Committee (the Committee), with only three communications lodged with the CERD Committee and two communications lodged under the CAT. Of these 29 communications, there are only four in which the Committee has expressed final views on the merits. In the Toonen case in 1994 and the `A' case in 1997, the Committee found Australia had acted in violation of the complainant's ICCPR rights. In both the third matter, involving a deportation to Iran, and the fourth matter, involving a deportation to Malaysia, no violations were found.
Decisions on the merits are not the only communications in which final decisions have been made. A significant number of communications have been declared inadmissible. Five were not referred to Australia at all and another three were declared inadmissible after consideration of the Government's pleadings in reply. In addition, the CERD Committee in Barbaro v Australia, a complaint concerning discrimination in employment, declared the communication as inadmissible.
There are three instances in which the Committee and the CERD Committee have held a communication to be admissible and so the matter will proceed to the merits stage sometime in 1999. In one instance, the Committee will consider the very important issue of the right to legally aided representation on appeal in a serious criminal matter. The other two communications are before the CERD Committee, one of which concerns discrimination in employment and the other deals with the Government's previous quota on overseas qualified doctors.
There are 10 communications before the Committee that are at the pre-admissibility stage and two communications to the CAT Committee. These are communications that have been registered by the Secretariat in Geneva and forwarded to Australia for the Government's response but there has been no decision made on admissibility. The Government's pleadings have been submitted in all but two of these cases. The rigid distinction between admissibility and merits is no longer entirely relevant. Under the amended Rules of Procedure of the Human Rights Committee adopted in July 1997 the Special Rapporteur for New Communications can now request a State party to address both admissibility and merits in its submissions. Accordingly, Australia has now submitted joint pleadings on admissibility and merits in four cases, including the two cases before the CAT Committee.
The range of the issues raised under the Optional Protocol communications is broad but certain patterns are emerging and communications are consistently arising from the criminal justice system and migration law areas. Communications to date have involved allegations of violations of the right to life and the legality of nuclear weapons; the right to humane treatment and the treatment of a prisoner; the right to a fair trial; incommunicado detention; and, in particular, the issue of access to lawyers for persons held in immigration detention. There are two cases that, in our view, do not raise any issues under the ICCPR -- one concerns the recovery of an overpayment and the other concerns worker's compensation -- as these issues fall outside the scope of the ICCPR. The two cases lodged with the CAT Committee involve proposed deportations of the complainants to States in circumstances that the complainant's allege would result in the violation of their rights under the ICCPR.
Finally, one communication has been withdrawn by the complainant after a remedy was provided. This occurred because, upon investigation, the Department of Immigration and Multicultural Affairs discovered that it had made an error under Australian law and remedied the situation. Clearly, from a government perspective, there is no point in pursuing a matter in these circumstances. However, it must be stressed that it was not a fear of appearing before the CAT Committee that led to a resolution by the Government in favour of the complainant.
Approach of the Australian Government to the development of its pleadings and the role of the State party in the communication procedure under the Optional Protocol
From an Australian Government perspective, an allegation to an international committee that Australia has violated a treaty right is a very serious matter. These are allegations of unlawfulness that subject Australia to international scrutiny. Not surprisingly, this Government, like the previous Government, is sensitive to such claims and will usually exercise its right to contest allegations before the Committee. As in most areas of law, the Government is particularly likely to contest allegations that raise policy issues that are politically sensitive.
Consequently, there is an expectation that the Commonwealth government lawyers will consult widely with relevant State, Territory or Federal agencies, research thoroughly the factual and legal background to the matter, provide a detailed analysis of the relevant international law and produce comprehensive written pleadings in reply. This takes time and resources. There are, however, some particular and distinguishing characteristics of the communication procedure that must be borne in mind when analysing the nature of the process and the Government's approach.
First, unlike the procedure in domestic civil litigation, there is no pre-trial conference and therefore no opportunity to agree on facts and narrow the issues. While some issues can be screened out at the admissibility stage, this still requires comprehensive written pleadings, an examination by the Committee's working group and, ultimately, examination by the Committee as a whole. In other words, in some cases the process may not be as focussed on the key issues as it could be.
Second, there is no provision for oral hearings in which the parties would have an opportunity to respond to each other directly and elaborate points that may otherwise be unclear to the Committee members. This aspect of the process takes on particular significance in communications that raise very complex facts, where there is a lack of familiarity with the domestic legal system or a possible lack of understanding of the particular laws. The absence of oral hearings and the exclusive reliance on written pleadings means that in preparing pleadings, government lawyers must address every point exhaustively and attempt to set out the government's rationale for a particular policy. This usually means including all the relevant background and contextual information to ensure the Committee has as full an understanding of the situation as possible. In domestic proceedings that level of information and elaboration can often be introduced during the oral hearing in response to questions from the bench.
There is an opportunity for the parties, under the Committee's Rule 91.6, to comment on the other party's pleadings, however, the author's comments are generally provided for information only. While Rule 91.6 does serve to elaborate the issues, it is designed to ensure the Committee has all the information it requires rather than being a means to facilitate an on-going exchange or a narrowing of the issues. In fact in some instances, the opportunity to comment has been used by the author to raise fresh allegations. No State party is going to permit allegations -- including a complainant's comments on the government's pleadings -- to go unanswered and this can significantly lengthen the time of the proceedings. In the absence of oral hearings the pressure to respond in writing to every point is even greater.
Third, under Rule 94.1 the Committee may only make its decisions based on the written information made available to it by the individual and the State party concerned. In practice, the Committee is highly dependent on the State party for verification and evidence as to the facts and the accurate interpretation of domestic law. The Secretariat can only play a very limited role in assisting complainants and the Committee has no independent investigative powers. Apart from the Government's interests in pleading a matter thoroughly, it is incumbent upon it to ensure the Committee has all the relevant information. The Committee does have the power to seek additional information from either the State party or the author under Rule 91.4. However, it is very rare that this power is exercised. It is my belief that the Committee finds Australia's pleadings very thorough and rather lengthy.
Fourth, it is open to the Committee to consider breaches of Articles whether or not those Articles have been specifically raised by the complainant. While it is not the role of the State to characterise the allegations for the complainant, the fact that the Committee can make a finding under any ICCPR Article makes it critically important that the Government's pleadings attempt to address every issue. This is particularly difficult, as issues in a communication are not always raised in a coherent manner and sometimes without supporting material or argument. In some cases the Secretariat provides a summary of the communication but this does not set the parameters of the dispute and, in many cases, no summary is provided at all. An example that illustrates the point is the case of Mrs G T v Australia in which the author alleged that a decision to deport Mr T gave rise to a violation of the ICCPR. The author made no argument at all in relation to the right to the protection of family life under either Article 17 or 23 and these issues were not dealt with in the Government's response. The majority of the Committee found no violation of Mr T's ICCPR rights. However, one member of the Committee, Mr Scheinin, dissented from the majority and criticised Australia for not having dealt with Article 17 and 23. He also argued that the Committee was wrong in its decision to consider both the admissibility and merits together and that Australia had effectively determined the scope of the substantive issues to be dealt with by the Committee in its pleadings. This case highlights some of the dangers for applicants of joint consideration of admissibility and merits. The Committee could have identified the additional issue and sought further information under Rule 91.4 and still proceeded to deal with both admissibility and merits. Alternatively, it could have made a separate decision on admissibility and raised the additional issues for Australia's response in further merits pleadings. It chose not to take these actions.
Finally, many communications raise issues of State and Territory law and practice. To facilitate consultation with State and Territory counterparts, in July 1995 the Standing Committee of Attorneys-General adopted the Co-operative Arrangements Regarding International Human Rights Communications and Reports (the Co-operative Arrangements). The Co-operative Arrangements have assisted consultation yet the international procedure is still quite novel to many of the State agencies. Negotiating the sensitivities of the Federal-State relationship requires time and skill. Sometimes it is a painful process of education in which there needs to be a negotiation through the sensitivities of particular agencies or personnel to ensure that all the relevant information is provided. The Public International Law Branch draws the factual material from the relevant agency and then develops the analysis of the ICCPR and general principles of international law that apply to the communication in order to draft the pleadings. It is the professional responsibility of government lawyers in this Branch to exercise an independent assessment of the matter and advise the Government accordingly. There is no blanket policy that every admissibility point available will be argued and that every issue in every communication will be defended. Some points are conceded and, as referred to above, one case was withdrawn because a remedy was provided. The ability to combine admissibility and merits in one single set of pleadings also makes it more likely that admissibility points will be more easily conceded in the future.
There have been a number of communications that were very poorly pleaded, including some drafted by legal counsel. While the communication process is intended to be accessible to individuals, the complainant must still discharge the evidential burden to satisfy the Committee that the claim is substantiated. The onus is on the individual and/or their representative to substantiate their claim with sufficient statements of all the relevant facts and supporting evidence. Just as importantly, the onus is on the complainant to plead their case convincingly. Yet there is often very little detail given in the communication as to the rights protected by the ICCPR. Thus sweeping claims -- such as the claim that the criminal justice system is corrupt -- that purport to raise issues under numerous articles leave government lawyers with the difficult task of identifying the relevant international law issue(s) and yet the claim cannot be ignored. Similarly, interpretations of ICCPR rights need to be pleaded clearly if the communication is to have any prospect of success.
The most difficult cases are those in which the facts may give rise to an issue but the complainant has not raised any particular concern or argument in relation to that issue or referred to any specific Article of the ICCPR. This occurs in communications drafted by legal counsel as well as unrepresented persons. For example, a deportation case may raise an issue under the ICCPR in relation to the return of a person to a State where there is a serious risk of a violation of his or her ICCPR rights. The same case may also raise ICCPR issues in relation to the domestic proceedings prior to the final decision in Australia but these issues may go unidentified in the communication. In these cases, the Government effectively has to make the case for the complainant so that it can respond to (nearly) all the issues. If an issue goes unaddressed there may be further delay and the possibility of adverse comment as happened in Mrs GT's case referred to above.
As regards the standard of communications, there are two principal practical aspects. First, the official model communication form published by the United Nations Centre for Human Rights is deceptively simple. Representatives of complainants must examine the fact situation in detail to identify all the international law issues in order to maximise the effective use of the Optional Protocol. Second, in order to argue that a ICCPR right applies to the situation, it requires more than a mere assertion that the particular right applies. This is particularly important where allegations raise significant questions of interpretation of these rights. Counsel should make use of the international materials available, such as the Committee's previous views, general comments and, in some cases, the concluding observations of the Committee in relation to a State's report may also be relevant. These materials are now generally readily available on the United Nations internet website. Reference should also be made, where relevant, to the extensive jurisprudence of the European Court of Human Rights (the European Court). While the decisions of the European Court are not binding on the Committee, it is a useful source of guidance and persuasive authority. It is comprehensive body of international human rights law and, as many of the Committee members are from European States, the Committee can be influenced by the European jurisprudence.
Aside from the Government's interest in defending its position, the Government takes the view that, in the long term, it is better to have a legal point fully argued before the Committee and the Committee views clearly reasoned on those legal points as a matter of public record. Nevertheless, despite the generally poor standard of communications so far, the Government does not take advantage of poorly pleaded cases or withhold relevant information from the Committee. This is not just a question of personal or professional legal ethics but relates to the obligation to act in good faith. Also the role of the State party under the Committee's Rules of Procedure is to provide `written observations and statements' and not just a defensive reply. In other words States are obliged to ensure that the Committee has all the relevant information to assist it in forming its views.
The communications procedure is designed to be readily accessible to individuals without legal representation and that is appropriate. However, the reality is that the nature of the process requires communications to be dealt with on the written submissions alone and so the Government adopts an exhaustive approach in its pleadings. Some might argue that the Government has adopted an unnecessarily adversarial approach, taking long periods of time to develop its replies and thereby causing delay in the system. New rules that permit joint submissions on admissibility and merits will, hopefully, speed up the process and reduce some of the burden on the Secretariat. Nevertheless, from a government perspective the process is an adversarial one. For a government to be accused of violating an individual's rights under a treaty is a serious matter and this Government, particularly in areas of sensitive public policy, will almost always defend its position before the human rights treaty committees. Finally, I think that, in addition to the question of implementation of the ICCPR, issues of education and reform of the individual communications process should be high on the agenda of practitioners and academics interested in achieving a workable and effective international human rights system.
Status of Current Communications against Australia\t(as at 29 October 1998)
AdmissibilityICCPR Communication 832/1998 (disability discrimination in education)
ICCPR Communication 802/1998 (right to a fair trial)
ICCPR Communication 776/1997 (migration law -- deportation)
ICCPR Communication 772/1997 (migration law -- access to lawyers)
ICCPR Communication 762/1997 (criminal law -- delay in prosecution)
ICCPR Communication 751/1997 (workers' compensation)
ICCPR Communication 737/1997 (recovery of overpayment)
ICCPR Communication 723/1996 (prisoner's treatment)
ICCPR Communication 681/1996 (criminal law -- fair trial and parole)
ICCPR Communication 646/1995 (defence policy/nuclear weapons)
CAT Communication 102/1998 (migration law -- deportation)
CAT Communication 106/1998 (migration law -- deportation)
Merits\t\tICCPR Communication 545/93 (legal aid on appeal and parole)
CERD Communication 8/1996 (quota on overseas trained doctors)
CERD Communication 6/1995 (racial discrimination in employment)
Final decision taken\t\t
GT -- ICCPR Communication 706/1996 (deportation -- merits -- no violation)
ARJ -- ICCPR Communication 692/1996 (deportation -- merits -- no violation)
A -- ICCPR Communication 560/93 (merits -- violation Articles 9.1, 9.4, 2.3)
Toonen -- ICCPR Communication 488/1992 (merits -- violation Article 17)
Perera -- ICCPR Communication 536/1993 (fair trial -- inadmissible)
X -- ICCPR Communication 557/93 (family law -- inadmissible)
Werenbeck -- ICCPR Communication 579/1994 (fair trial -- inadmissible)
Ramsey -- ICCPR Communication 655/1995 (residency/citizenship -- discontinued as remedy provided)
Barbaro -- CERD Communication 7/1995 (employment discrimination -- inadmissible)
Declared inadmissible without referral to Australia\t\tA and LS -- ICCPR Communication 490/1992 (debt recovery/fair trial)
JL -- ICCPR Communication 491/1992 (legal practice admission)
KL B-W -- ICCPR Communication 499/1992 (Chelmsford deep sleep therapy)
Lang -- ICCPR Communication 659/1995 (neighbourhood dispute)
Jarman -- ICCPR Communication 700
[*] Jane Hearn is a government lawyer in the International Human Rights Section of the Public International Law Branch of the Commonwealth of Australia Attorney-General's department. She has been in her present position since October 1994. Prior to going into law and joining the Department Jane had 10 years experience working as a social welfare worker and advocate in community based organisations in Sydney. The Public International Law Branch of the Attorney-General's Department is responsible for preparing the Australian Government's submissions in communications under the international human rights complaints mechanisms and for the preparation of Australia's reports under the International Covenant on Civil and Political Rights, the Convention Against Torture and the Convention on the Rights of the Child. The views presented are those of the author and do not necessarily represent those of the Attorney-General's Department or the Government.
 This paper reflects the position as at October 1998.
 Australia acceded to the Optional Protocol to the ICCPR on 25 September 1991 and the Optional Protocol came into force for Australia on 25 December 1991. Australia lodged declarations with the United Nations on 28 January 1993 accepting the complaints procedure under Article 14 of the CERD and Article 22 of the CAT. Those declarations took effect immediately.
 A list of the communications as at 29 October 1998 appears as an appendix at the end of this article. Communications that have not yet been finally determined appear by reference to the communication number only.
 Nicholas Toonen v Australia Communication No 488/1992 CCPR/C/50/D/488/1992; A v Australia Communication No 560/1993 CCPR/C/59/D/560/1993.
 ARJ v Australia Communication No 692/1996 CCPR/C/60/D/692/1996.
 Mrs GT v Australia Communication No 706/1996 CCPR/C/61/D/706/1996. The alleged victim was the author's husband (T). The majority of the Committee found no violation of T's Covenant rights, although there were three dissenting opinions.
 AS and LS v Australia Communication No 490/1992 CCPR/C/47/D/490/1992; JL v Australia Communication No 491/1992 CCPR/C/45/D/491/1992; KLB-W v Australia Communication \tNo 499/1992 CCPR/C/47/D/499/1992; Lang v Australia Communication No 659/1995 CCPR/C/58/D/659/1995; and Jarman v Australia Communication No 700/1996T CCPR/C/ 58/D/700/1996.
 Perera v Australia Communication No 536/1993; X v Australia Communication No 557/93 CCPR/C/57/557/1993; and Klaus Werenbeck v Australia Communication No 579/1994 CCPR/C/59/D/579/1994.
 Barbaro v Australia Communication No 7/1995 CERD/C/51/D/7/1995.
 ICCPR Communication No 545/93, held admissible by the Committee on 14 March 1996. \tThe allegations concern the provision of legal aid for an appeal in a serious criminal matter under Article 14(3)(d) (right to publicly funded legal assistance) and the imposition of a non-parole period under federal sentencing laws under Article 15(1) (retrospective application of a heavier penalty).
 CERD Communication No 6/1995 (employment) and CERD Communication No 8/1996 (quota system). It is expected that the final views on both cases may published by the end of 1999.
 ICCPR Communications Nos 776/1997 (deportation); 772/1997 (detention incommunicado); 762/1997 (delay in the prosecution); 751/1997 (workers compensation); 737/1997 (recovery of an overpayment); 723/1996 (treatment of a prisoner); 681/1996 (fair trial and parole); 646/1995 (legality of nuclear weapons); 802/1998 (right to a fair trial); and 832/1998 (disability discrimination in education).
 CAT Communications Nos 102/1998 (migration law -- deportation) and 106/1998 (migration law --deportation).
 See Rules of Procedure CCPR/C/3/Rev 5, 11 August 1997. New Rule 91 para 2.
 Tony Ramsey v Australia Communication No 655/1995.
 In an individual opinion by Mr Scheinin in Mrs GT v Australia he expresses his disagreement with the decision that the matter be dealt with jointly on admissibility and merits. In his view the case raised an issue under Articles 17 and 23(1) in relation to the alleged victim's right to protection from arbitrary interference with family and the State's obligation to protection of the family as the fundamental group unit of society. Under Rule 91.4 the Committee could have sought submissions from Australia on this issue and did not do so.
 Rule 91.4 states: `The Committee, a working group established under Rule 89, para 1, or a special rapporteur designated under Rule 89, para 3, may request the State party or the author of the communication to submit, within specified time limits, additional written information or observations relevant to the question of admissibility of the communication or its merits.'
 At the time of writing the Government response to the final views of the Committee in this case is still under consideration.
 <http://www.un.org> and the United Nations High Commissioner for Human Rights Internet site: <http://www.unhchr.ch> . There are also useful textbooks which provide commentaries on the various treaties and the United Nations Centre for Human Rights in Geneva produces a study series that collects the relevant sources of international law dealing with particular subjects, for example, in relation to discrimination and disabled persons, pre-trial detention and the cultural heritage of indigenous people.
 The principle of pacta sunt servanda is enshrined in Article 26 of the Vienna Convention on the Law of Treaties that entered into force on 27 January 1980. Article 26 states `Every treaty in force is binding upon the parties to it and must be performed by them in good faith'.
 Rule 91 of the Human Rights Committee Rules requires the State party to provide a written reply with `explanations or statements' and `information or observations'.