ACTU Submission To The Office Of The Status Of Women On The Development of an Optional Protocol To The Convention On The Elimination Of All Forms Of Discrimination Against Women
D. No. 76/98December 1998
“Without progress in the situation of women, there can be no true social development. Human rights are not worthy of the name if they exclude the female half of humanity. The struggle for women’s equality is part of the struggle for a better world for all human beings, and all societies.”
1.1 The ACTU is committed to the elimination of discrimination against women in Australia and overseas.
1.2 The ACTU values the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), as an international ‘bill of rights’ for women.
1.3 The ACTU believes that the pursuit of laws and mechanisms to eliminate discrimination against women are now part of what Australians expect within a civil society.
1.4 The ACTU therefore encourages the Australian Government to enter into the Optional Protocol (OP) in order to demonstrate the strength of its commitment to the elimination of discrimination against women within Australia.
1.5 Further it is of critical importance that the Australian Government demonstrates its commitment to the elimination of discrimination against women by providing leadership within the international community on human rights matters.
1.6 The ACTU urges the Australian Government to promote a progressive position through bilateral and regional networks, by liasing with like-minded states (the “Friends of the OP”) and by taking an active and progressive role at the forty-third session of the United Nations Commission on the Status of Women in early 1999.
2.The ACTU’s Role in Promoting the Elimination of Discrimination against Women
2.1 The ACTU is committed to the elimination of discrimination against women in Australia and overseas.
2.2 The commitment of the ACTU is expressed in a number of its core policy documents including:
- The Working Women’s Charter;
- Working Women’s Policies (1985, 1989, 1991)
- Equal Employment Opportunities Policy
- Women and Unions Resolution (1997)
- International Affairs Policies (1995),
- International Strategy and Key Objective Resolution (1997)
2.3 Further the ACTU has demonstrated the implementation of these policy objectives in a number of ways including:
- Adopting Affirmative Action mechanisms to promote the involvement of women in union decision making forums;
- Establishment and maintenance of the ACTU’s Women’s Committee;
- Running successful test cases in the Workplace Relations Commission to achieve maternity and parental leave provisions.
- Pursuing the objective of equal pay for work of equal value for women workers through specific test cases in 1969 and 1972 and, subsequent cases for predominantly female occupations such as nurses, childcare workers etc. Most recently running cases under the equal remuneration provisions of the Workplace Relations Act.
- Participating in a number of national inquiries including the Review of the Affirmative Action Act, Pregnancy and Work Inquiry, Senate Inquiry into Childcare funding etc.
- Support for the Australian People for Health, Education and Development Abroad (A.P.H.E.D.A) as the official overseas humanitarian aid arm of the ACTU and in particular support for projects aimed at assisting women overseas;
- Providing support to and lobbying for Government support for various humanitarian aid projects in developing and under-developed countries;
- Working in conjunction with the International Congress of Free Trade Unions, the South Pacific and Oceanic Council of Trade Unions (SPOCTU), and other international labour organisations to whom the ACTU affiliates.
- Being an active participant in the International Labour Organisation (ILO).
2.4 Unions affiliated to the ACTU also contribute to the objective of eliminating discrimination against women through their work to:
- Educate members and employers around issues of Equal Employment Opportunities and Sexual harassment;
- Support individual members experiencing discriminatory treatment or sexual harassment;
- Allocate resources to the training and development of women members;
- Employ designated Women’s Officers/Adviser to develop policy and action in support of Women;
- Support Non Government Organisations (NGO’s) with particular focus on women.
3. The Importance of CEDAW
3.1 The ACTU values the Convention on the Elimination of all forms of Discrimination against Women (CEDAW), as an international ‘bill of rights’ for women.
3.2 The Convention’s particular importance rests in its identification of what constitutes discrimination against women and the requirements for signatory States to set up national action plans to overcome such discrimination.
3.3 In recognising the Convention, States commit themselves to end discrimination in terms of women’s participation in political and public life education and employment and to take action to promote women’s enjoyment of their human rights and fundamental freedoms.
3.4 The ACTU recognises the importance of CEDAW in underpinning Australia’s domestic anti-discrimination laws such as the Sex Discrimination Act and the Affirmative Action Act. More recently, and of particular significance to working women in Australia, it has underpinned the equal remuneration provisions in the Workplace Relations Act.
3.5 Under the Convention mechanisms to achieve the elimination of discrimination require States to:
- Incorporate the principle of equality of men and women into their legal systems, abolish discriminatory laws and adopt appropriate laws which prohibit discrimination against women;
- establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and
- ensure the elimination of all acts of discrimination against women by persons, organisations or enterprises.
3.6 The elimination of discrimination and the development of laws and public mechanisms to promote this elimination are of particular importance to the ACTU, it’s affiliated unions and to the Australia working women whom these unions represent.
3.7 Further the pursuit of laws and mechanisms to eliminate discrimination against women are now pat of what Australians expect within a civil society.
Despite this expectation constant vigilance is required in Australia, as elsewhere in the international community, to ensure gender discrimination is truly eradicated. Statistics regarding women’s pay rates, participation in management, and public and political institutions indicate that gender equality remains an objective for Australian women rather than the reality.
4. The Need for an Optional Protocol (OP)
4.1 The ACTU notes that whilst the CEDAW is the second most ratified international treaty, the number of reservations is of concern. This highlights the need for effective monitoring of its implementation.
4.2 An OP is complimentary to an existing treaty. It is designed to enhance the existing treaty and does not impose additional obligations upon States.
4.3 In this case the proposed OP alters the treaty’s monitory processes to ensure that States can be held to their obligations under CEDAW. Given that both the decision to sign the original treaty and to enter into the OP itself are both optional, signatory States should have no difficulty in maintaining their obligations.
4.4 An OP of the nature being proposed will have many benefits. It will:
- Improve on, and add to, existing enforcement mechanisms for women’s human rights;
- Improve States’ and individuals’ understanding of CEDAW particularly through the proposed communications procedure;
- Stimulate steps to implement CEDAW as States become concerned about complaints;
- Stimulate changes to discriminatory laws and practices where they exist;
- Enhance the existing mechanisms for the implementation of human rights within the UN; and
- Provide greater public awareness of human rights standards relating too discrimination against women through requirements to publicises the OP and its procedures.
4.5 This OP is not without precedent. The International Covenant on Civil and Political Rights (ICCPR) also has complimentary OP’s which provide for similar communication and complaints procedures.
4.6 Support for the OP has been garnered from a number of CEDAW States Parties and from NGO’s and women’s organisations from around the world. Importantly the CEDAW Committee itself also supports and is calling for an OP.
4.7 The ACTU therefore encourages the Australia Government to enter into the OP in order to demonstrate the strength of its commitment to the elimination of discrimination against women within Australia.
4.8 Whilst in Australia more blatant forms of discrimination are rare (but nevertheless still do occur) the problem of systemic and indirect discrimination remains a reality. Australia can learn from counties that have better records in the field of discrimination than our own and can provide guidance to others that have not developed anti-discrimination mechanisms.
4.9 In many other countries women’s human rights and freedoms are abused and discrimination is common place. This includes situations in countries who are signatory to CEDAW. In supporting a strong OP and encouraging others to sign up to this OP Australia can assist the women in these countries by providing a channel for their complaints to be heard.
4.10 The ACTU notes that drafting of the OP will be finalised at the forty-third session of the United Nations Commission on the Status of Women (CSW) early in 1999.
4.11 In an effort to address reporting procedure deficiencies and to improve the effectiveness of CEDAW the ACTU strongly urges the Australian Government to support an OP to the Convention and to take an active and progressive role in the ongoing negotiations associated with the drafting of this OP.
4.12 In particular the ACTU urges the Australian Government to promote a progressive position through bilateral and regional networks and by liaising with like-minded states (the “Friends of the OP”).
5.Content of the Optional Protocol
5.1 The ACTU notes that a substantial amount of the text of the OP was agreed at the forty-second session of the United Nations Commission on the Status of Women (CSW 42) and therefore does not wish to comment at this stage on this agreed text.
5.2 In this submission the ACTU wishes to concentrate on the following central areas:
- Standing (to make a complaint
- Inquiry procedure
5.3 Standing (Article 2)
5.3.1 The draft protocol allows individuals, groups and organisation to have standing to make communications regarding a violation/s of a right/s set forth in the Convention.
5.3.2 Under the current proposal and individual or groups of individuals may submit a communication on their own behalf. This provision is not controversial and is in accord with First Optional Protocols to the ICCPR, Convention Against Torture (CAT) the Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Rights of Migrant Workers (MWC).
5.3.3 Further the proposal also allows for organisations to be able to make a communication. This provision is essential in order to ensure that individuals at risk or that those who do not have sufficient literacy are able to have complaints dealt with.
5.3.4 It is also essential that organisations be able to make a communication in circumstances where there is no specifically identifiable victim (eg. trafficking in women) but where the phenomenon is occurring and is not being addressed. In many circumstances ‘class actions’ under this provision will be the only way in which substantive human rights abuses of women in some countries will be able to be communicated.
5.3.5 It is proposed that Communicants (individuals, groups, or organisations) who are seeking to have a matter dealt with would be required to have a ‘sufficient interest’ in the matter.
5.3.6 This notion of ‘sufficient interest’ before granting standing is one that is reflected in Australian constitutional and administrative law principles and should therefore propose no difficulty to the Australian Government.
5.3.7 Recognition of desperate personal, economic and political circumstances of women in a number of countries and the growing constructive role that Non Government Organisations (NGO’s) play requires a provision that enables organisations to represent individuals and to bring ‘class’ type actions.
5.3.8 The Australian Government is therefore strongly urged to support a provision that caters for this recognition.
5.3.9 Article 2 also makes provision for communications to be on the ground of a violation of the rights set forth in the Convention either through and act or by virtue of a failure to act on behalf of the State Party.
5.3.10 This right to bring forward a communication on the grounds of inaction by a State Party has proved to be controversial.
5.3.11 The ACTU urges the Australian Government to support a provision that allows for communications in circumstances where State Parties fail to act. This provision is particularly directed towards underlying systemic discrimination within communities and will require State Parties to take positive steps to address issues of systemic discrimination. A provision such as this will ensure that State Party’s are not able to hide behind notions of ‘religion’ or ‘culture’ as a justified reason to discriminate against women and therefore infringe their human rights.
5.4 Inquiry Procedure (Article 10)
5.4.1 The proposed Inquiry procedure allows for the CEDAW Committee To Initiate Inquiries Into The Status Of Women In A State Party’s jurisdiction where it becomes aware of a serious and or systemic violation by a State Party to the protocol rights set out in the Convention.
5.4.2 A major weakness in the current monitoring procedures for CEDAW is that the Committee relies on reports compiled by State Parties as it main source of information. The OP rectifies this by allowing communications to be made from other sources. The Inquiry procedure further enhances the ability of the Committee to ensure that CEDAW is implemented.
5.4.3 The ACTU urges the Australian Government to support, and advocate for, the Inquiry process. The process poses no threat to the autonomy or sovereignty of States. It is expected that it will be sparingly and sensitively.
5.4.4 Further the Australian Government should oppose either opting in or out clauses as they seriously weaken the effectiveness of this provision.
5.5 Reservations (Article 20)
5.5.1 Whilst it may be customary to allow for reservations to international treaties it the ACTU’s view that there is no place for reservations within Optional Protocol.
5.5.2 The protocol is by its very nature optional. There is no point in having a protocol which looks good on the surface but which in reality has no effect.
5.5.3 As this matter goes to the heart of the credibility of the OP the Australian Government is urged to advocate a strong position in opposition to reservations.
5.6 The ACTU notes that there are a number of other matters unresolved in the draft OP. The ACTU has had the benefit of reading the submission of the Women’s Rights Action Network Australia with respect to these matters and supports the views expressed within this submission.
6.Reservations to the Convention
6.1 The ACTU notes that the issue of reservations (to the Convention) was most recently discussed in January 1997 and notes the conclusion from those discussions that State Parties should be encouraged to object to those reservations that are perceived to be contrary to the object and purpose of the Convention.
6.2 The ACTU encourages the Australian Government to join with State parties such as Germany, Finland, Mexico, the Netherlands, Norway, Portugal and Sweden who have objected to the reservations of other States. These Governments have argued that the ‘wide and often vague and indeterminate reservations of particularly those States which make reservations on the basis of religious law are incompatible with the object and purpose of the Convention’.
6.3 The ACTU supports the Government initiative to modify the existing reservation to the Convention on the Elimination of all Forms of Discrimination Against Women on the Employment of women in combat and combat related duties in the Australian Defence Force.
6.4 Finally the ACTU strongly urges the Australian Government to investigate removing the remaining reservation on the introduction of maternity leave with pay. The Government should support the achievement of paid maternity leave in recognition of the fact that:
- Women are an integral part of the paid workforce;
- Childbearing plays a role in sustaining society;
- The ability of a household to maintain relative living standards depends on the number of people in, and the nature of paid employment;
- Women’s attachment to the workforce is vital for their economic security and maternity leave can be the link between time in and time out of the workforce. Paid maternity leave supports this and provides income support at a crucial time.