Updated:
12 January 1998The Proposed Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women
Note of appreciation: the NWJC particularly thanks Professor Hilary Charlesworth and Jenny Earle, lawyer with the Women's Legal Centre (ACT & Region) for their work on this submission.
1. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted by the General Assembly in 1979. CEDAW is an important treaty, offering protection against discrimination against women in a wide range of contexts. Australia ratified CEDAW in 1983.
2. Parties to CEDAW undertake an obligation to implement it into their domestic law (article 2). Performance of this obligation is monitored by the Committee on the Elimination of Discrimination Against Women, an elected body of 23 experts. The only monitoring method provided in CEDAW is through a system of periodic reports: parties submit an initial written report to the CEDAW Committee within one year of CEDAW's entry into force for that party and then each 4 years afterwards (article 18).
3. Other human rights treaties offer two further methods of monitoring the performance of states parties. The Convention on the Elimination of All Forms of Racial Discrimination (CERD), the Covenant on Civil and Political Rights (CCPR) and the Convention Against Torture (CAT) all allow, as optional procedures, complaints of breach of treaty obligations to be made, first, by one state against another and, second, `communications' by individuals containing complaints against a state. The complaints are made to the relevant treaty monitoring body: the Committee on the Elimination of Racial Discrimination, the Human Rights Committee and the Committee Against Torture respectively. CAT also contains an inquiry procedure which allows its monitoring committee to investigate systematic torture.
4. While the state versus state complaint procedure has never been invoked under any of the three treaties, the individual communication procedure has been used extensively. It has allowed the three treaty monitoring bodies concerned to develop a very useful jurisprudence on the meaning and scope of the rights set out in their respective treaties. It has also allowed individuals within the jurisdiction of states parties that have accepted the optional complaints procedures to obtain a direct form of redress for their complaints.
Rationale for a CEDAW ‘Optional Protocol’
5. The proposal to develop an optional individual complaints procedure -- or `Optional Protocol' -- for CEDAW should be strongly supported (as it has in the past) by the Australian government. Australia has already accepted the optional state and individual complaints procedures under CERD, CCPR and CAT and there is thus no reason in principle not to support a CEDAW individual complaints procedure. The 1995 Beijing Declaration and Program for Action, to which Australia subscribed, calls for the development of such a procedure. The CEDAW procedure would allow complaints to be taken to the CEDAW Committee only after all relevant domestic remedies have been exhausted. It thus is not a substitute for Australian law, but allows gaps in Australian law with respect to the protection of women from discrimination to be identified and remedied.
6. There are a number of specific advantages in developing an Optional Protocol for CEDAW. These include:
*improving the implementation of CEDAW by identifying concrete examples of breach of the treaty provisions
*encouraging the development of effective national and local remedies for discrimination against women
*broadening and deepening international jurisprudence with respect to discrimination against women which will guide states parties in implementation
*indicating that discrimination against women is taken as seriously as discrimination
on the basis of race, violation of the human rights guarantees under the CCPR and
violation of the prohibition against torture and other cruel or degrading treatment.
7. There has been considerable recent criticism that women's rights have not been taken as seriously as other rights at the international level. Critics have pointed to the under-resourcing of the United Nations institutions that deal with women, the weaker monitoring provisions of CEDAW and the failure of the major human rights institutions to deal adequately with human rights violations against women. Developing an Optional Protocol to CEDAW would go some way to redress the marginalisation of women's rights.
Major issues for the Optional Protocol
8. We consider that the basic requirements for the Optional Protocol are:
*that it be no less strong than the equivalent existing CERD, CCPR and CAT procedures
*that it incorporate useful practices developed under the existing procedures
*that it recognise the particular disadvantages that women may face in using an
international complaints procedure.
9. We support a broad standing provision in the Optional Protocol. While the CERD, CCPR and CAT procedures require a person to be a `victim' of the alleged violation, we consider that there should be broader language in the CEDAW Optional Protocol. Many of CEDAW's provisions impose a duty on states parties to take particular action, and it is not appropriate to refer to `victims' of the failure to take action. We endorse the proposal on standing made in the 1997 Chairperson's draft (article 2):
an individual, group or organisation claiming to have suffered from a violation of any of the rights in the Convention or claiming to be directly affected by the failure of a State party to comply with its obligations under the Convention
and
an individual, group or organisation that has sufficient interest in the matter
10. Although the second category of persons with standing is likely to be controversial, we encourage the Australian government to support it. It will allow a complaint to be brought if the person most directly affected is unable to lodge a complaint. The category is also consistent with Australian law on standing.
11. The 1994 Maastricht draft included an inquiry procedure along the lines of that contained in CAT. The 1997 Chairperson's draft retained this feature. We support the inclusion of an inquiry procedure. It is a creative way of examining systemic discrimination against women, which may not be appropriately dealt with by a complaints procedure.
12. We support the inclusion of an obligation on states parties to implement the Committee's views on a communication or at the end of an inquiry. The outcomes of existing UN communications procedures are not considered formally binding, and failure to implement is a significant problem.
13. We urge the Australian government to ensure that no reservations are permitted to the Optional Protocol. If reservations were allowed, states parties would be able to limit the provisions of CEDAW about which complaints or inquiries are possible. Given that CEDAW itself has more reservations than any other human rights treaty, it would considerably weaken the force of the Optional Protocol if reservations could be made to it.
14. We support the current draft of Article 14 which provides that the States must publicise and make widely known the Committee's views and recommendations. In our view, confidentiality of the communication should be at the complainant's option. The confidentiality of other communications procedures means that they lose much of their political utility.
15. An Optional Protocol to CEDAW is a significant and worthwhile development. It will
allow CEDAW to have much greater impact on women's lives around the world. Australia has
always been a strong supporter of CEDAW and it should take the lead internationally in
ensuring the strongest draft possible.
List of endorsements to end of Dec. 1997
Endorsements to the submission of the National Women’s Justice Coalition dated 7 November 1997 to the Minister for the Status of Women on the Optional protocol to the Convention on the Elimination of All Forms of Discrimination Against Women to the 30 December 1997
The submission is specifically endorsed by the Optional Protocol Network and by the following organisations and individuals:
Organisations
Association of Non-English Background Speaking Women of Australia
Australian Education Union
Australian Federation of University Women
Australian Lawyers for Human Rights
Australian National Committee on Refugee Women
Australian Women’s Health Network
Association of Women Educators
Australian Women Lawyers
Federation of Community Legal Centres (Victoria)
Human Rights Council of Australia
Geelong Community Legal Service
International Women’s Development Agency
Lesbians on the Loose Magazine
Maternity Alliance
National Association of Community Legal Centres
National Association of Services Against Sexual Violence
National Council for the Single Mother and Her Child
National Council of Women of Australia
National Legal Aid
National Network of Aboriginal Women’s Legal Services
National Network of Women’s Legal Services
National Women’s Media Centre
Network of Women in Further Education
NSW Aboriginal Women’s legal Resource Centre
NSW Women Lawyers Association
NSW Women’s Legal Resource Centre
Northern Territory Working Women’s Centre
North Queensland Combined Women’s Services Inc.
North Queensland Women’s Legal Service Inc.
Older Women’s Network
Soroptimists International of the South West Pacific
Top End Women’s Legal Service
United Nations Association of Australia Status of Women Network
Union of Australian Women
University of Queesland Student Union
Victorian Women Lawyers Association
Women’s Electoral Lobby Inc.
Women’s Electoral Lobby, Tasmania
Women's Electoral Lobby WA
Women’s Financial Network
Women’s Health Special Interest Group, Public Health Association of Australia Inc.
Women’s Information Referral Exchange, Victoria
Women's International League for Peace and Freedom
(Australian Section)
Women Into Politics
Women’s Legal Centre ACT & Region
Womensport Australia
WomenSport International
Individuals
Sumegha Agarwal, NSW
Rebecca Albury
Carol Andrades, ACT
Dr Jane Arthur, Cambridge, England
Jo Barrett, NSW
Graeme Barry, QLD
Carol Benda, ACT
Professor Sandra Berns, Faculty of Law, Griffith University
Assoc. Professor Greta Bird, School of Law and Justice, Southern Cross University, NSW
Sarah Brasch, ACT
Alison Brookes, Deaking University, VIC
Lois Boswell, NSW
Raylee Burns, QLD
Elaine Butler, University of Adelaide, SA
Dr Colleen Chesterman, UTS, Sydney
Natasha Cica, Cambridge
Catherine Cole, NSW
Emma Cooper, NSW
Kathy Corbiere, QLD
Dr Louise Crossley, NSW
Nicole Cosgrove, NSW
Maureen Cummuskey, ACT
Jan Darlington, QLD
Dr Margaret Davies, School of Law, Flinders University SA
Kristin Dawson, NSW
Kate Deacock, NSW
Caroline Denigan, Victoria
Greg Dodd, NSW
Jenny Earle, ACT
Dr Particia Easteal, Faculty of Law, ANU
Kate Eastman, NSW
Rhonad Fadden, NSW
Deborah Foskey, ACT
Beth Gaze, Law Faculty, Monash University
Christina Gillgren, WA
Professor Regina Graycar, Faculty of Law, University of Sydney
Nancy Griffiths, ACT
Astrid Guder, NSW
Robin Gurr, NSW
Judith Homeshaw, TAS
Diana Hopkinson, SA
Dell Horley, NSW
Mirvette Hussein, NSW
Linda Innes, VIC
Carol Johnson, ACT
Anna Lise Johnston, NSW
Angela Jones, NSW
Kate Jorgenson, ACT
Ruth Jost, NSW
Hayley Katzen, NSW
Miranda Kaye, Law School, Sydney University
Lorna Kaino, Edith Cowan University, WA
Mary Kenny, WA
Diana Langmead, Faculty of Education, Deakin University
Kate Lawrence, University of Adelaide, SA
Margaret Lawson, NSW
Toni Lawson, Queensland
Yumi Lee, NSW
Maggie L’Estrange, SA
Madi Maclean, NSW
Sarah McCormick, Charles Sturt University, NSW
Sarah Maddison, NSW
Kirsty Magarey, NSW
Marilyn McHugh, University of NSW
Betty McLellan, Townsville
Vicky Marquis, NSW
Val Marsden, WA
Sonia Marsic, ACT
Denise Newton, NSW
Kris Newton, NSW
Rebecca Nissim, NSW
David Nowland, QLD
Dianne Otto, Law School, Univeristy of Melbourne
Rebecca Peters, NSW
Bob Phelps, VIC
Penelope Pitcairn, University of NSW
Kristine Plowman, ACT
Gillian Polack, ACT
Roger Pye, NSW
Kim Raffaele, ACT
Frances Ralston, QLD
Padma Raman, Victoria
Janet Ramsay, NSW
Alexander Reilley, Law School, Murdoch University
Senator Margaret Reynolds, QLD
Helen Rhoades, VIC
Pearl Rozenberg, Faculty of Law, University of Sydney
Kim Rubenstein, Law School, University of Melbourne,VIC
Mehera San Roque, NSW
Viki Rutter, TAS
Ariel Salleh, NSW
Kristin Savell, Cambridge University, UK
Marian Sawer, ACT
Madge Sceriha, QLD
Dr Jocelynne A Scutt, VIC
Louise Shortus, NSW
Frances Staden, ACT
Associate Professor Julie Stubbs, Faculty of Law, University of Sydney
Angela Taft, VIC
Valerie Thompson, ACT
Deb Tyler, ACT
Ruth Venables, QLD
Adrian Waterman, ACT
Baarbara Watroba, VIC
Rosemary Webb, ACT
Phillipa Weeks, ACT
Diane Westerhuis, QLD
Dr Ania Wilczynski, Faculty of Law, University of Sydney
Gai Wilson, Deakin University, VIC
Terri-ann White, University of Western Australia
Kirsty Windeyer, ACT
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National Women's Justice Coalition
email: nwjc@nwjc.org.au