Case: Queensland v The Commonwealth [1989] HCA 36 ; (1989) 167 CLR 232 at 239
Outcome: cited
Giving effect in this context means giving legal effect, creating legally enforceable, rights, duties, powers and privileges: cf Re Pacific Coal Pty Ltd; Ex Parte Construction, Forestry, Mining and Energy Union [2000] HCA 34 ; (2000) 203 CLR 346 at [209] , [211]. The Convention, being an international instrument, does not apply of its own force as part of Australian domestic law enforceable in Australian courts: Secretary of State for India v K B Sahaba (1859) 13 Moo PCC 22 at 75, 15 ER 9 at 28-29, cited in Queensland v The Commonwealth [1989] HCA 36 ; (1989) 167 CLR 232 at 239. The terms of the Convention do not directly prohibit or mandate conduct by individuals. By the Convention States Parties undertake to take measures, including legislative measures, which will help to eliminate discrimination against women. For example, by Article 2(b) "States Parties ... undertake: (a) ... (b) To adopt legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women." 36 That the definition does not extend to discrimination against all persons, male or female, simply on the ground of marital status, and is confined to discrimination against women, is confirmed by an example of the construction given by the international community (as to the admissibility of such material see Queensland v The Commonwealth , above, at 240). The UN Committee on the Elimination of Discrimination against Women on 31 July 1995 issued, in the course of its third periodic reports of States Parties to the Convention, the report of the United Kingdom Government. An annexure is a document entitled "Commentary on UK Reservations and Declarations, Statement entered by the United Kingdom on 7 April 1986". At page 126, under the heading "Article 1" there is quoted an earlier reservation of the UK which was in these terms: " With reference to the provisions of the Sex Discrimination Act 1975 and other applicable legislation, the United Kingdom's acceptance of Article 1 is subject to the reservation that the phrase "irrespective of their marital status" shall not be taken to render discriminatory any difference of treatment accorded to single persons as against married persons, so long as there is equality of treatment as between married men and married women and as between single men and single women. " It is then said: " This statement clarifies the UK's understanding of this Article. The UK Government still believes that it is an accurate statement of the Article's meaning. However, the Government accepts that there is no need for this still to be explicitly stated. On this basis the UK Government wishes to withdraw the statement. " 37 Article 2 provides (emphasis added): " States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: (a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realisation of this principle; (b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; (c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; (d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation; (e) To take all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise; (f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women; (g) To repeal all national penal provisions which constitute discrimination against women. " Read together with the Preamble and the definition of " discrimination against women ", the obligations undertaken in Article 2 are clearly confined to acting (and refraining from acting) in relation to disadvantage suffered by women as compared with men. 38 Article 3 requires States Parties to take all appropriate measures, including legislation, in all fields, in particular in the political, social, economic and cultural fields, to ensure the full development and advancement of women for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms " on a basis of equality with men ".