Launch of Mechanisms for advancing women’s human rights: A guide to using the Optional Protocol to CEDAW and other international complaint mechanisms

Speech by Elizabeth Broderick

Sex Discrimination Commissioner

Australian Human Rights Commission

Australian Human Rights Commission, Sydney

Friday, 19 August 2011

WELCOME AND ACKNOWLEDGMENT

I am so pleased to be able to welcome you all to the launch of Mechanisms for advancing women’s human rights: A guide to using the Optional Protocol to CEDAW and other international complaint mechanisms.

It is wonderful to see so many familiar and new faces, and to know there is such interest in the Guide and today’s panel discussion.

I am proud to be launching the Guide on the traditional lands of the Gadigal people of the Eora nation. I pay my respects to their elders past and present, and to the Aboriginal and Torres Strait Islander peoples here with us today.

Before we begin, I would like to acknowledge and thank our advisory group members:

• Rachel Ball (from the Human Rights Law Centre);
• Louise Edwards (formerly of the National Association of Community Legal Centres); and
• Edwina MacDonald (from Women’s Legal Services NSW and one of today’s panellists).

Putting together a resource like the Optional Protocol Guide and ensuring it will be relevant and useful for women requires a collaborative effort. The Commission is grateful to the advisory group members and their organisations for generously giving their time and expertly steering the development of this Guide.

LAUNCH

I have said many times that Australia has a strong system of law and strong processes for the protection of women’s human rights. Yet, we know they are not perfect and gaps do exist.

These gaps have real and, in some cases, devastating impacts on the lives of women as well as men. They also have negative consequences for the Australian community as a whole.

I heard first-hand about the real life impacts of discrimination against women during my nation-wide ‘Listening Tour’, which I began shortly after I became Sex Discrimination Commissioner. And I continue to hear about them as I carry out my duties as Commissioner.

One story that has stayed with me during my term as Commissioner is that of a woman I will call ‘Jessica’. Jessica wrote on my Listening Tour blog about how she had lived in a violent relationship for 25 years. She said

The violence takes many forms – physical abuse, emotional abuse and financial abuse. ... After watching [my partner] starting to physically abuse our youngest child ..., I feel I must finally find the strength to leave. I have discovered that although we are not married and he has never contributed to the purchase or upkeep of our homes ... the law will allow him to take away a large percentage of the only asset I own. I feel as though I am being punished twice – I have been financially abused by him and now the law allows him to financially abuse me again. I know I am not the only woman in this position.^[1]

I am reminded, also, of ‘Catherine’.

Catherine’s husband assaulted and raped her repeatedly over a period of more than 20 years. He jabbed her with a cattle prod, dragged her by her hair, attempted to choke her and even fired a gun at her. Just last month, he was found guilty on 17 charges, including attempted murder. He represented himself throughout the trial and was permitted to cross-examine his own daughter, who had witnessed many of the violent attacks on her mother.

As Jessica’s and Catherine’s stories show, there are many challenges that still lay ahead in the struggle for gender equality. It is important that we never lose sight of the road we still need to travel in the struggle for gender equality.

But today is not about reflecting on the many challenges that still lay ahead.

It is about reflecting on some of the international mechanisms women can use to seek redress for violations of their human rights, where attempts to redress those violations at the domestic level have been unsuccessful.

International complaint mechanisms, including the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, provide a possible, yet often overlooked, means of redressing violations of women’s human rights.

Unless you’ve used international complaint mechanisms before or work in human rights or a related field, you might be wondering what an Optional Protocol is.

An Optional Protocol is a legal instrument. It enables individuals to seek redress for violations of their human rights that are recognised in an international human rights treaty.

The Australian Government acceded to the Optional Protocol to CEDAW in December 2008. When it did so, it agreed to be bound by the Protocol’s communication and inquiry procedures.

The communication procedure enables women or persons acting on their behalf to submit a complaint to the UN Committee on the Elimination of Discrimination against Women alleging that the Australian Government violated rights in the UN Convention on the Elimination of All Forms of Discrimination against Women.

The inquiry procedure authorises the CEDAW Committee to conduct inquiries into allegations that the Australian Government committed grave or systematic violations of CEDAW.

As well as the Optional Protocol to CEDAW, Australia is also party to a number of other human rights treaties that establish international complaint mechanisms.

The potential of international complaint mechanisms should not be underestimated. Reflecting on the twentieth anniversary of Toonen v Australia – a case we will hear more about today – Navi Pillay, the High Commissioner for Human Rights, had this to say.

The changes that have come about since the Toonen case occurred because a Tasmanian by the name of Nicholas Toonen, aided by the support and advice of his colleagues and friends, complained to the UN Human Rights Committee that a law that criminalised consensual sexual relations between adult men violated his rights to non-discrimination and equality.

In the case of the Optional Protocol to CEDAW, we have already seen women from around the world use its communication and inquiry procedures to obtain redress for violations ranging from femicide to coerced sterilisation.

In a recent case, a Filipino woman, Karen Vertido, succeeded in holding the Philippines accountable for the actions of a judge who relied on gender stereotypes in acquitting the defendant of raping her.

And in a case decided just last week, Brazil was held accountable for its failure to provide timely, non-discriminatory, and appropriate maternal health services that would have prevented the avoidable maternal death of Alyne da Silva, a 28 year old woman.

A number of women have succeeded in obtaining redress for violations of their rights in CEDAW.

One woman received compensation and medical assistance after she was coercively sterilized. Changes in health practices were also made to prevent other women from being sterilized without their full and informed consent.

Several countries have introduced laws regulating gender-based violence against women or have committed to effectively enforcing existing laws, following adverse decisions by the CEDAW Committee. One country responded to a negative decision of the CEDAW Committee by introducing a national strategy on violence against women, building domestic violence shelters and establishing a telephone counselling service.

Yet, despite their potential, there have been no communications or requests for inquiries submitted against Australia under the Optional Protocol to CEDAW. Moreover, few of the communications submitted against Australia under other international complaint mechanisms have been initiated by women.

This is in spite of the gaps we know exist in Australia’s laws and practices for the protection of women’s human rights.

The Commission hopes the Guide will encourage lawyers, advocates and women experiencing violations of their rights to consider international complaint mechanisms as an avenue to seek redress for those violations. The Commission hopes, also, that it will provide practical guidance on how to use those mechanisms to advance women’s human rights.

The Guide consists of five main sections.

• Section 1 provides an introduction to international complaint mechanisms, including the Optional Protocol to CEDAW.
• Sections 2 and 3 outline the communication and inquiry procedures of the Optional Protocol to CEDAW and explain in detail how to use these mechanisms to obtain redress for violations of women’s human rights.
• Section 4 briefly examines some of the other complaint mechanisms that are available to women at the international level.
• Section 5 outlines a number of factors to be taken into account when deciding whether to use international complaint mechanisms.

The remainder of the Guide includes key documents and identifies further sources of information and assistance for women considering using international complaint mechanisms.

^[1] Anonymous, 2008. Freedom from discrimination, harassment and violence. Listening Tour, Australian Human Rights Commission [blog], 25 January 2008. At http://hreocblog.com/2007/11/21/have-your-say-on-freedom-from-discrimination-harrassment-and-violence/#comments [Accessed 8 August 2011].