Communication under the Optional Protocol to the
International Covenant on Civil and Political Rights
To the Human Rights Committee,
c/o Office of the UN High Commissioner for Human Rights,
Palais Wilson,
52 Rue des Pacquis,
1211 Geneva, Switzerland
Care Of:
Petitions Team
Office of the High Commissioner for Human Rights
United Nations Office at Geneva
1211 Geneva 10, Switzerland
Information Concerning the Author:
Surname:
First name:
Nationality: New Zealander
Date of birth:
Place of birth:
Address:
I am submitting this communication on behalf of my daughter – who is {insert age here}, and is therefore unable to submit a communication on her own behalf.
Information Concerning the Alleged Victim:
Surname:
First name(s):
Nationality:
Date of birth:
Place of birth:
Address: Same as above
State Concerned
Australia
The Complaint
1. I and my husband are New Zealand nationals. We have resided permanently in Australia since {enter date here} under a bilateral agreement between Australia and New Zealand known as the Trans-Tasman Travel Arrangements. This bilateral agreement allows Australians and New Zealanders to live and work on an open-ended basis in each other’s countries.
2. Our {son / daughter} was recently born in Australia; however, she did not automatically acquire Australian citizenship by birth. In contrast, a child born in Australia to parents who are Australian nationals would automatically acquire Australian citizenship by birth. I allege that this difference in treatment based on nationality is arbitrary given that my husband and I are lawfully residing in Australia on an open-ended basis.
3. I wish to complain that the denial of automatic conferral of Australian citizenship by birth to my daughter represents an unreasonable and disproportionate distinction based on the nationality of her parents. As a result, I wish to complain that Australia has breached her human rights under article 26 of the Covenant.
Exhaustion of Domestic Remedies
4. In CERD/C/75/D/42/2008 the Committee for the Elimination of all forms of Racial Discrimination concluded that Australia does not offer a remedy for discrimination on ground of nationality at the Federal level:
6.5 As for the State party's contention that the author also had a number of judicial instances before which he could have sought remedy, the Committee reiterates that domestic remedies need not be exhausted if they objectively have no prospect of success. This is the case where under applicable domestic law, the claim would inevitably be dismissed, or where established jurisprudence of the highest domestic tribunals would preclude a positive result. Taking into account the clear wording of the decision of the Full Court of the Federal Court of Australia in the Macabenta case, which excluded nationality as a recognized discrimination ground within the Racial Discrimination Act (1975), the Committee concludes that there were no effective remedies that the author could have pursued. As the Committee sees no other impediment to admissibility, it proceeds to the consideration of the case on its merits.
5. In C v Australia the Committee determined that neither the Australian Human Rights Commission nor the Commonwealth Ombudsman offer effective remedies in terms of the Optional Protocol[1].
7.3 As to the question of exhaustion of domestic remedies, the Committee notes the State party's argument that the certain administrative remedies (the Commonwealth Ombudsman and HREOC) have not been pursued by the author. The Committee observes that any decision of these bodies, even if they had decided the author's claims in his favour, would only have had recommendatory rather than binding effect, by which the Executive would, at its discretion, have been free to disregard. As such, these remedies cannot be described as ones which would, in terms of the Optional Protocol, be effective.
6. In its concluding observation on Australia issued on the 7 May 2009 the Committee noted that Australia has not implemented its obligations under the Covenant[2]:
8. The Committee notes that the Covenant has not been incorporated into domestic law and that the State party has not yet adopted a comprehensive legal framework for the protection of the Covenant rights at the Federal level, despite the recommendations adopted by the Committee in 2000. Furthermore, the Committee regrets that judicial decisions make little reference to international human rights law, including the Covenant. (art. 2)
7. Therefore, there are no domestic remedies available to exhaust at the Federal level concerning discrimination based on nationality in terms of article 26 of the Covenant.
Signed: …………………………………………………
Dated: ………………………..
