Paid parental leave punt

Only a few days out from the delivery of the May budget media reports suggest that the Government is still ducking and weaving around the calls for paid parental leave. But there may be a way of forcing them to face the issue.

Australia has long been a signatory to the Convention for the Elimination of All Discrimination Against Women (CEDAW). In December 2008 it acceded to the Optional Protocol to that Convention. The Protocol contains a procedure for a person to lodge a complaint with the CEDAW Committee claiming that her rights under the CEDAW treaty have been violated. The communications procedure entitles individuals or groups of individuals, who fulfil certain preconditions, to submit communications or petitions in which they claim to be victims of violations of any of the rights set forth in the Convention by a State party.

Having signed the Optional Protocol under the Convention for the Elimination of All Discrimination Against Women (CEDAW) - the complaints mechanism for the CEDAW - what the Government seems to have overlooked is its potential exposure to an action under that Convention by or on behalf of Australian women exasperated by the likely failure of the Rudd Government to make good its promise to introduce paid parental leave.

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. It defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination.

When signing or ratifying an international treaty, a country can make a reservation to one or more provisions of that treaty. This is a unilateral statement which effectively excludes the country from any obligation related to that provision, although it remains open to the country to remove its reservations when it wishes to commit to those rights.

Australia has two reservations to CEDAW. One relates to paid maternity leave.

On one view Australia's reservation does restrict the availability of the Optional Protocol procedures to potential complainants. But on the other hand, when considering a claim relating to the provisions of CEDAW that are the subject of a reservation, the Committee on the Elimination of Discrimination against Women, the body which deals with complaints, itself examines the reservation to determine whether it is incompatible with the object and purpose of CEDAW.

The Committee (PDF 46KB)considered the issue of reservations at its 41st session and discussed the case of Kennedy v Trinidad and Tobago, in which a State Party's reservation was set aside.

Is Australia's reservation inconsistent? If it is put to the test it may well be found to be.

In response to the Howard government's Combined Fourth & Fifth Periodic Report, the CEDAW Committee has already expressed its clear concerns (PDF 48KB)about the lack of a national system of paid maternity leave.

We are yet to receive the Committee's response to the Rudd Government's combined 6th and 7th Periodic Report. Prepared in October 2008, it postdates and lends the lie to the Prime Minister's September comment that “It's time to bite the bullet” on paid parental leave because it maintains Australia's paid maternity leave reservation.

Salma Khan, a Former Member & Chairperson of the CEDAW Committee, has said that “reservations” are meant to be temporary. When Australia ratified CEDAW 25 years ago, the Australian Government expressly refused to agree to provide paid maternity leave for Australian women.