President speech: Using human rights to inform administrative decision-making

Using human rights to inform administrative decision-making

The Hon Catherine Branson QC

Speech to the Council of Australasian Tribunals, 25 August 2009

Introduction

Good evening.
May I acknowledge the traditional owners of the land on which we meet, and pay my respects to their elders past and present.
Thank you for inviting me to speak to you tonight.
It has been an exciting time to be President of the Australian Human Rights Commission. As you would all be aware, this year the federal government conducted a National Consultation on Human Rights to ask Australians whether and how they think human rights could be better protected in Australia.
Consequently, human rights have been a hot topic, with the consultation reigniting debate about whether Australia needs to have a federal law protecting human rights, a Human Rights Act.
Questions about how human rights should be recognised under the law and what role courts and tribunals should play in enforcing rights have been fiercely debated.
This evening, I have been asked to speak about the relevance of human rights to administrative decision-making. I will begin by sharing my thoughts with you about:
- how human rights can be used to inform administrative and judicial decisions; and
- how human rights Acts, where they do exist, have impacted on decision-making. I will do this principally by looking at emerging examples from Victoria.
I would like this evening to be quite informal, so I will try to limit my speaking time to allow time for questions and discussion at the end.

Connection between human rights and administrative law

Administrative decision-making plays an important role in the protection of human rights. Administrative law and human rights are closely connected in their objectives. They are both concerned with the relationship between the state and the individual. Administrative law is premised upon the protection of individuals against the unlawful or arbitrary exercise of state power; and human rights impose obligations on the state to respect and protect the rights and freedoms of individuals.
It is also the case, of course, that as administrative decision-makers you exercise the power of the state. Like judicial officers you can show respect for human rights not only through your decisions but also through the manner in which you exercise the power vested in you. Simple things such as being respectful of those who come before you can do much to help create a culture in which human rights are respected as a matter of course.
United Nations human rights bodies have repeatedly emphasised that administrative remedies, not only judicial remedies, are an important means of providing ‘effective remedies’ to people whose rights are breached because they are accessible, affordable and timely.^[1]
Administrative decisions can affect virtually every aspects of a person’s life. Many of these decisions involve human rights issues. For example, decisions concerning guardianship, immigration, social security and housing.
Respect for human right underpins every well-functioning democracy, including our own. Absent respect for human rights, the rule of law will break-down. Absent respect for human rights there will be members of our community whose voices are not heard on issues of importance to us all or whose contributions to public debate are not received with appropriate respect.
So what do we mean by ‘human rights’? International law recognises human rights falling into two broad categories – civil and political rights and economic, social and cultural rights. Civil and political rights include such rights as the right not to be arbitrarily detained, the right to a fair hearing, the right to vote, respect for privacy, freedom of speech and freedom of religion and belief.^[2] These rights are often described as requiring the state to refrain from interfering with individual liberty. Economic, social and cultural rights include rights such as the right to an adequate standard of living, the right to education, the right to health care, the right to social security, and the right to take part in cultural life.^[3] These rights are commonly understood as obligations on the state to take positive steps to provide for individuals. One important right that does not really belong to either category is the right to be able to exercise all these rights without discrimination.^[4]
In practice, however, the perceived distinction between civil and political rights on the one hand, and economic, social and cultural rights on the other, is artificial. The realisation of all human rights is necessary for an individual to live with dignity and to enjoy equality. Many civil and political rights cannot be realised unless economic, social and cultural rights are also secured. For example, if a person does not enjoy their economic right to adequate housing, they might have difficulty enjoying various civil and political rights including the right to privacy and the right to vote.
It is important to remember that human rights are not absolute. Although some human rights should not be infringed in any circumstances, such as the right not to be tortured or held in slavery, most human rights can be subject to reasonable limitations. Circumstances may require that different rights be balanced. The right to freedom of speech, for example, is subject to the right of others to privacy and not to be defamed or to be the subject of racial or religious vilification. In extraordinary circumstances, it may also be permissible to suspend or restrict certain rights provided that the limitations are reasonable and can be justified in a free and democratic society.

To understand how particular human rights can be relevant to individual situations that may arise under administrative review, it can be useful to consider cases from the United Kingdom and, in particular, decisions by the European Court of Human Rights.

Examples of cases:

The right to education and corporal punishment: Campbell and Cosans v The United Kingdom (25 February 1982) Eur Court HR

This case concerned complaints by two mothers, each of whom had one child of compulsory school age, about the use of corporal punishment as a disciplinary measure in the State schools in Scotland attended by their children.
One mother, Mrs Campbell, had a young son at school and she requested of the school authority that they guarantee that he would not be subject to corporal punishment. The school refused to provide such a guarantee. The other mother, Ms Cosans, had a 15 year old son who attended high school. One day he was told he would receive corporal punishment for taking a prohibited shortcut by walking through a cemetery on the way home. He refused to accept the punishment and was suspended until he was willing to accept it. After three months and several meetings between the parents and the school authority at which the parents expressed their disapproval of corporal punishment, the school said it would lift the suspension provided that the son agreed to abide by all rules and disciplinary regulations of the school. The parents said that they would not allow their son to be subject to corporal punishment and so the school refused to lift the suspension. The parents were warned that they could be prosecuted for not sending their child to school.
The mothers complained that the schools had breached the right to education of their sons and their own rights as parents. Article 2 of Protocol 1 of the European Convention on Human Rights provides that: “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions”.
The Government argued that the internal administration of a school, including disciplinary practices, were not functions in relation to "education" and "teaching" within the meaning of Article 2.
However, the Court disagreed and said that the education of children is the whole process whereby, in any society, adults endeavour to transmit their beliefs, culture and other values to the young, whereas teaching or instruction refers in particular to the transmission of knowledge and to intellectual development. Accordingly, the court held that the rights of the mothers to ensure education conforms with their convictions, had been breached by the schools. The court also held that the son of Mrs Cosans, who had been suspended for almost a year as a result of the policy on corporal punishment, had suffered a breach of his right to education.

The right to non-discrimination on the basis of sex and immigration regulations: Abdulaziz, Cabales and Balkandali v The United Kingdom (28 May 1985) Eur Court HR

The applicants were three women who had migrated to the UK and were lawfully settled. All three had husbands who had applied to remain in the UK with their wives. The men were refused permission to settle permanently. Immigration rules at the time contained strict conditions for husbands or male fiancés who sought to join or remain with his wife or fiancée settled in the UK. This was because the government was concerned about the impact of immigration on unemployment and so they made it more difficult for someone to immigrate to the UK if they were expected to need to work to support a family. These same conditions did not apply to wives who sought to join their husbands.
The government did not dispute that under the immigration rules at the time, it was easier for a man settled in the United Kingdom than for a woman so settled to obtain permission for his or her non-national spouse to enter or remain in the country for settlement. However, it argued that its policy was based on objective and reasonable justifications and was proportionate to the aims pursued.
The court held that there had been a violation of the right not to be discriminated against on the basis of sex under article 14 of the Convention. The court said that although the government’s policy may have been based on a difference between the respective impact of men and of women on the domestic labour market, that difference was not sufficiently important to justify the difference of treatment between men and women.

In Australia, as in many countries, human rights, even though well established in international law, do not become part of our domestic law without the passage of appropriate legislation. The Australia Parliament has enacted a number of statutes which recognise particular human rights but we are unique amongst Western democracies in not having any over-arching protection of human rights – either a constitutional Bill of Rights or a form of Human Rights Act.
Most of you will be aware than I am an advocate for a Human Rights Act for Australia. This is not the occasion for me to expand on the reasons for this. For present purposes it is sufficient, I think, to say that during my professional life I have seen too many instances of the rights of those who do not in the relevant respect form part of the majority in our society being ignored.
However, even without a Human Rights Act I believe that there is considerable scope for Australian decision-makers to take human rights principles into account. Decisions which are informed by human rights principles are likely, for the reasons that I will expand upon, to be better decisions leading to better outcomes for individuals while nonetheless being based on sound legal principle.

Using human rights in statutory interpretation

Let us begin by looking at how human rights can be used in statutory interpretation. Statutory interpretation is a core function of courts and tribunals.
As I have mentioned, there are a number of federal and state laws which have sought to incorporate into domestic law aspects of major human rights instruments. For example:
- federal and state anti-discrimination laws implement the right to non-discrimination and equality
- privacy laws protect aspects of the right to privacy
- employment laws protect various employment-related rights such as the rights to fair wages and conditions of work and not to be discriminated against on a number of specific grounds; and
- laws governing civil and criminal procedure protect important procedural rights such as the right to a fair hearing.
The High Court and the Federal Court have identified several principles for the interpretation of statutes such as these which enact treaty obligations.
The first principle is that where the provision of a treaty is transposed into the statute, the assumption is that the language of the statute should carry the same meaning as in the treaty.^[5] For example, this principle has been applied to the interpretation of the term ‘refugee’ under the Migration Act which has the same definition as under the Convention on Refugees.^[6]
The principles which govern the construction of a treaty are not identical with those that govern the construction of a statute. Articles 31 and 32 of the Vienna Convention on the Law of Treaties^[7] set out the international rules for treaty interpretation. The High Court has recognised the applicability of these rules in Australia and made it plain that treaties should be given a broad, contextual interpretation “unconstrained by technical rules of [domestic] law, or by [domestic] legal precedent”, considering the objects and purpose of the treaty.^[8] It is legitimate to seek assistance from the jurisprudence of specialist international courts, tribunals and specialist UN Committees when interpreting treaties^[9].
Furthermore, courts have supported the principle that statutes that are intended to give effect to an international human rights treaty should be beneficially construed.^[10] For example, in IW v City of Perth, the High Court considered whether a local council which refused to grant planning approval for a drop-in centre for people with AIDS had breached anti-discrimination laws. The Court was required to decide whether the giving of planning approvals by the Council was a ‘service’ for the purposes of anti-discrimination legislation. The majority said that because the anti-discrimination law is designed to give effect to human rights, the term ‘service’ should be construed broadly. Although, in the end, the court did not form a majority view about whether this case fell within the definition.
Unfortunately, the number of statutes which expressly implement human rights obligations, or which transcribe treaty provisions, is small. Legislative protection of human rights in Australia is ad hoc – the law protecting only a limited number of human rights and usually only limited aspects of those rights. As a result, the utility of these particular interpretive principles is somewhat limited.
Australia also has well-established principles relating to the use of international agreements as aids to the interpretation of statutes, even when those agreements are not referred to in the statute.^[11]
For example, you would be familiar with the principle that where legislation is ambiguous, courts should favour an interpretation that accords with Australia’s international obligations.^[12] And also the related principle that courts should not interpret legislation as intending to interfere with fundamental rights and freedoms, unless such an intention is clearly manifested in unambiguous language.^[13]
Although both these principles have been regularly applied by the courts, the manner in which they been applied has varied. As it appears to me, this variation commonly arises from differences in opinion about when a statute is to be considered ambiguous. Some judges have commented that ambiguity should not be narrowly construed.^[14] Others have adopted a narrow and strict approach to the notion of ambiguity.^[15]
This divergence of opinion was clearly illustrated in the majority and minority judgments of the High Court in Al-Kateb v Godwin.^[16] In Al-Kateb v Godwin the High Court was asked to decide whether the Migration Act^[17] authorised the indefinite detention of an unlawful non-citizen when there is no real prospect of his removal from Australia. By the slimmest of majorities (four judges in favour; three against), the High Court said that it did.
Mr Al-Kateb argued that the High Court should interpret the Migration Act in a way which was consistent with Australia’s obligations under the International Covenant of Civil and Political Rights which protects the right to liberty and prohibits arbitrary detention. One of the clearest indicators that detention is arbitrary is that the person being detained has no idea when they will be free again.
Mr Al-Kateb’s legal submissions relied on those two principles of statutory construction that I mentioned earlier: that courts should only assume Parliament intends to interfere with fundamental rights if it does so in unambiguous language; and that where the meaning of a law is ambiguous, the Court should interpret the law consistently with Australia’s international treaty obligations.
The majority of the High Court found that the plain words of the Migration Act required Mr Al-Kateb to be detained until he could be removed from Australia notwithstanding that there was no reasonable prospect of his removal in the foreseeable future. Because the majority decided the words were unambiguous, they did not consider the human rights of Mr Al-Kateb.^[18]
In contrast, the minority – Gleeson CJ, Kirby J and Gummow J – did not believe the words of the Migration Act provided an unambiguous authorisation for indefinite detention of Mr Al-Kateb. Instead, they interpreted the Migration Act in a way which protected the right of Mr Al-Kateb not to be arbitrarily detained.^[19] They concluded that the power to detain was intended to be ancillary to the power to remove from Australia with the consequence that the law did not require his ongoing detention in circumstances where there was no real prospect of his removal from Australia.
As most of you will know, Mr Al-Kateb, who is now lawfully resident in Australia, was kept in immigration detention for years without any idea of when or whether he would be free again. He paid a big price for the position in Australia being that it is‘not for the courts ... to determine whether the course taken by Parliament is... contrary to human rights’.^[20]
The principle that Parliament should be presumed to legislate in accordance with, not contrary to, fundamental rights is based on a recognition of the long-standing and central place which fundamental rights hold within the common law.
There is a passage from the judgment of Lord Hoffman in the case of Simms^[21] which discusses this issue in the context of the English ‘principle of legality’, the nearest equivalent of our fundamental rights principle. He said:

... the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

The principle of legality may be somewhat stronger than the principles recognised by Australian courts. In Australia, courts seem more cautious in their application of these interpretive principles for fear of overstepping their judicial role.
It was therefore encouraging to read the address by French CJ to the Australia and New Zealand Scrutiny of Legislation Conference, in which he expressed support for the view that common law rights, such as the freedom of movement and speech, are more than merely residual liberties, existing only insofar as the law does not curtail them.^[22] Rather, he said, fundamental rights are essential elements of the common law and their importance under the common law justifies the interpretation of legislation and the common law in a way which ensures their protection.

The doctrine of legitimate expectation

I will now turn to another area where human rights are able to be used to inform administrative decision-making — that is the doctrine of legitimate expectation.
In the case of Minister for Immigration and Ethnic Affairs v Ah Hin Teoh^[23], the High Court held that ratification of an international treaty may give rise to a legitimate expectation that administrative decisions will be made in conformity with relevant treaty provisions.
To quote Mason CJ: ‘Ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention.’^[24] If a decision-maker does not intend to act consistently with human rights obligations, the persons affected should be given notice and an opportunity to be heard on the issue.^[25]
The application of this doctrine in the case of Teoh meant that Australia’s ratification of the Convention on the Rights of the Child created a legitimate expectation that decision makers would abide by the provisions of the treaty — in particular, that the best interests of the child would be a primary consideration in a decision about whether a father should be deported from Australia, leaving behind his children who were Australian citizens.
However, application of the Teoh principle has been fairly limited. Subsequent decisions have confined the scope of the principle to providing an entitlement to procedural fairness and not to a substantive outcome.^[26] Furthermore, I am not aware of it having been applied in relation to international obligations other than those under the Convention on the Rights of the Child.^[27]

Using human rights to inform the exercise of discretion

Potentially the most significant area in which human rights can administrative decision-making is in the exercise of discretionary judgments.
There are many occasions when administrative and judicial decision makers are granted the power to choose between several different courses of action. Quite often the exercise of discretion is directed by guidelines or principles. For example, the new Ministerial Direction under the Migration Act for decisions about whether to cancel or refuse a visa under s 501 of the Migration Act on character grounds states that, in exercising their discretion whether to refuse or cancel a visa, decision-makers must consider relevant international obligations under treaties including, but not limited to, the Convention on the Rights of the Child, the ICCPR, and the Convention against Torture.^[28] In other cases the exercise of discretion is not expressly directed in this way. For example,Social security legislation gives the Secretary a discretion in certain circumstances not to recover on behalf of the Commonwealth certain overpayments of entitlements.^[29]
Other instances of discretionary decision-making in this sense include all decisions that require consideration of what is ‘fair’ or ‘just’ or ‘reasonable’ in the circumstances. Indeed, since no administrative decision should be made capriciously, it may be that all decisions which call for an element of judgment and where the factors to be taken into account are not exhaustively specified are decisions to which consideration of human rights are potentially legitimate.
The relevance of human rights to the exercise of discretion has received relatively little judicial analysis. In delivering the Brennan Lecture in June of this year, French CJ said that the application of international obligations to the exercise of discretionary powers under statute is still a matter of debate.^[30] He referred to the judgment of Gummow J in Minister for Foreign Affairs and Trade v Magno, which identified the question of whether regard may be had by a decision-maker, exercising a discretionary power under a domestic law, to international agreements or obligations, even though the agreement or obligation is not imported into that domestic law and the law is not ambiguous.^[31] The question, Gummow J said, was a difficult one to answer and, at the time, remained unresolved.
However, there are several examples of decisions from different jurisdictions in Australia which support the view that human rights obligations are a relevant consideration in exercising discretionary powers. A large proportion of these decisions concern the criminal law — an area in which discretionary powers clearly invoke human rights principles concerning the deprivation of liberty and procedural fairness.^[32] Cases in other areas have concerned, among other things, contractual disputes, extradition and family law matters.^[33]

Examples of cases:

In Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70, the Federal Court considered the appeal of a man who was refused bail after being arrested in Australia pending extradition for offences relating to the growth and distribution of cannabis under US law. At the time of the appeal, he had already been in custody for 11 months. The man was a joint citizen of Australia and Holland and regularly travelled between both countries. Under the Extradition Act, French J had to decide whether there were special circumstances justifying his release from remand. French J said that decision necessarily involves making a value judgment about the range of circumstances favouring the grant of bail.^[34] In his view, that judgment was to be made with reference to the purpose of the law and what he called ‘broader community standards’.^[35] In assessing ‘broader community standards’, French J remarked: ‘it can never be regarded as anything other than a special circumstance that a person should have to spend a year in prison unconvicted of any offence’.^[36] He also referred to article 9 of the ICCPR which protects the right not to be arbitrarily detained and commented that this article ‘serves as an indication of the value placed by Australia, as part of the international community, on the liberty of the individual and the presumption in favour of that liberty. That presumption must, of course, give way to specific statutory provisions. But where those provisions do, as in the case of the Extradition Act, allow for normative judgments... then the presumptions arising under the common law and in relevant international instruments may be taken into account.’^[37]
In Walsh v Department of Social Security (1996) 67 SASR 143, a married couple with three children were charged with offences of failing to disclose their earnings under the Social Security Act. Both parents were sentenced to 3-4 months imprisonment and both appealed against the severity of their sentences in the Supreme Court of South Australia. The judge, the late Perry J, reviewed the sentencing decision and found that although the sentences were well within the sentencing discretion of the lower court, it was necessary to have regard to the fact that the sentences would result in three young children being without both parents for several months. The relevant sentencing provisions expressly stated that regard could be had to the effect of sentencing on family or dependents. However, in addition to these provisions, Perry J referred to Australia’s international obligations under ICCPR and the CRC which emphasise the importance of protection of the family and the rights of children. These international instruments, he said, ‘underscore the importance of the [sentencing provisions under the Crimes Act], which, where possible, should be construed and applied consistently with them.’^[38]

I agree with the view of Kirby J, expressed extra-curially, that international standards may lend legitimacy to the views of judges when carrying out their judicial functions, particularly in the case of ambiguity or discretion.^[39] Exercising discretion invariably involves a certain degree of normative judgment by the decision maker. I am inclined to believe that where there is discretion, it is preferable to exercise it in accordance with internationally accepted human rights principles rather than subjective values or opinions.
Just as human rights are recognised as useful principles for resolving ambiguity or uncertainty in interpretation of statutes and the common law, I believe that human rights are also useful principles for resolving the uncertainty inherent in discretionary decisions.

The impact of a Charter of Rights on administrative decision-making

It would be reasonable to assume that, for the most part, when making administrative decisions, Australian official will act in accordance with Australia’s international human rights obligations to the extent that they are familiar with them, However, there is no general legal obligation upon a decision-maker to give proper consideration to human rights when making a decision.
It is the Commission’s view that Australia needs a federal statutory Human Rights Act to help to create a stronger human rights culture throughout government and the community. A Human Rights Act would:
- require government officials to consider human rights at the early stages of the development of law and policy (which should help prevent human rights problems from arising)
- require Parliament to consider whether new legislation protects human rights, and if not, publicly explain any decision to create or maintain such legislation (which should help improve transparency and accountability in policy and law-making processes)
- it would require courts to interpret laws consistently with human rights and providing remedies where appropriate (while not giving courts the power to strike down legislation – Parliament would have the final say)

and

it would require public authorities to consider and respect the human rights of the individuals with whom they are dealing when making decisions (which should discourage the application of ‘one-size-fits all’ policies and encourage solutions which take into account the diversity of the Australian community).
I would like to take a few minutes now to consider what impact a statutory Human Rights Act would have administrative decision-making processes and administrative review. In doing so, we are fortunate to have emerging experience from Victoria and the ACT which are currently finding their feet with their own human rights Acts.

Changes to statutory interpretation

Let’s first look at the impact of a Human Rights Act on statutory interpretation.
The ACT and Victorian human rights acts contain special interpretive provisions which require courts to interpret other legislation in a way that is compatible with the rights set out in the Act, so far as it is possible to do so consistently with the purpose of the legislation being examined.^[40]
The Honourable Justice Spigelman AC has described the introduction of these special interpretation provisions as the most significant statutory change to the law of statutory interpretation in Australia.^[41]
Certainly, an important feature of this type of interpretive obligation is that it applies to all laws, whether or not enacted before the interpretative provision itself and regardless of whether an individual judge thinks the ordinary meaning of the law is ambiguous.
However, I tend to agree with French CJ when he said that the operation of an interpretive Charter is much like the way in which common law rights and freedoms currently inform the interpretation of statutes.^[42]
Contrary to the suggestions of critics that the interpretive obligations contained in human rights Acts in the ACT and Victoria turn judges into law-makers, human rights acts do not authorise courts to give laws a meaning which is inconsistent with their purpose.^[43] This is contrary to the interpretive provisions under the UK Human Rights Act which contain no limitation on purpose.
In practice, I believe there have been no cases so far, in Victoria or the ACT, in which a court has made a declaration of incompatibility on the basis that a law was not able to be interpreted consistently with human rights.^[44] There have been a small number of decisions which have engaged the interpretive provisions and found that a law was not inconsistent with human rights in the Charters.
However, it is still early days and the courts are yet to identify a preferred approach for the application of the special interpretive provisions. Even in the UK and New Zealand, where human rights Acts have been in place for many years, courts continue to debate the best approach to interpretation under a Human Rights Act.

Changes to administrative decision-making

Let’s now move to considering the impact of a Human Rights Act on the process of administrative decision-making.
According to human rights practitioners in Victoria, the ACT and the UK, the greatest impact of human rights Acts has been on the decision-making processes of public authorities.
Taking the example of the Victorian Charter — this Charter imposes obligations on public authorities to respect human rights by making it unlawful for them to act in a way that is incompatible with a human right. It is also unlawful for a public authority to fail to give proper consideration to a relevant human right in making a decision.
In making decisions, a public authority would need to interpret and apply laws and regulations in a way that is compatible with human rights. However, a public authority’s actions or decisions would be lawful if the legislation expressly required the authority to act in a way that was inconsistent with human rights.
There are many stories of aged care facilities, mental health care providers, schools and other public authorities amending their practices to ensure they respect the rights of their clients.
This experience has shown that obligations on public authorities to respect human rights can have a significant impact on the lives of individuals and can lead to the prevention of human rights abuses.

The implications of a Human Rights Act for courts and tribunals

What does the duty on public authorities mean for courts and tribunals?
First, it means that where courts and tribunals are considered ‘public authorities’ for the purposes of the Human Rights Act, they will be required to act compatibly with human rights.
The definition of public authority excludes courts and tribunals, except when they are acting in an administrative capacity. According to recent decisions in Victoria, activities which are considered to fall within the definition of ‘administrative capacity’ include those ‘operational’ aspects of tribunals, such as employment of staff and treatment of customers at a registry.^[45] ‘Administrative capacity’ has also been found to include tribunal functions which involve an exercise of ‘administrative power’, for example, the review of mental health treatment orders.^[46] Therefore, in carrying out these administrative functions, tribunals and courts are bound by a Human Rights Act in the same way as any other public authority to respect human rights.
The second way in which a tribunal can be impacted by the obligations on public authorities is in conducting merits review of the actions and decisions of public authorities. Since merits review asks the reviewer to ‘stand in the shoes’ of the original decision-maker, the reviewer of a decision by a public authority is required to take human rights into account in the same way as the primary decision-maker.

Example: Kracke v The Mental Health Review Board

I think it is helpful to consider the recent decision of the Victorian Civil and Administrative Tribunal (VCAT): Kracke v The Mental Health Review Board.^[47]
This case was a merits review of a decision by the Mental Health Review Board to confirm the involuntary and community mental health treatment orders of Mr Kracke. Mr Kracke had a diagnosed mental illness and was required to take psychotropic medication fortnightly by injection. Mr Kracke’s treatment orders were supposed to be regularly reviewed by the Mental Health Review Board. However, the Board failed to conduct the reviews on time, with delays of up to a year. Mr Kracke argued that that the Board had breached several of his rights under the Victorian Charter, including the right to a fair hearing and the protection from medical treatment without consent.
In deciding the case, Justice Bell gave extensive consideration to the role of tribunals under the Charter.
He said that the function of conducting reviews of mental health treatment orders is an exercise of administrative power. Therefore, in conducting (or rather failing to conduct) the reviews of Mr Kracke’s treatment orders, the Mental Health Review Board was acting in an administrative capacity and was a public authority for the purposes of the Charter. This meant that the Board was bound to act compatibly with all the human rights in the Charter.
Justice Bell also held that in reviewing the decision of the Board, VCAT was also a public authority for the purposes of the Charter because it was standing the shoes of the decision-maker. So VCAT was bound by the Charter to give proper consideration to relevant human rights in making its decision.
Ultimately, Justice Bell found that the Mental Health Review Board had breached Mr Kracke’s right to a fair hearing by failing to conduct reviews of his mental health treatment orders within a reasonable time. However, this did not affect the validity of the treatment orders because the limitations on his rights that the treatment orders imposed, even without the review safeguards, were justified.
It is worth noting one final point regarding the application of the Charter to courts and tribunals. Under the Victorian Charter, courts and tribunals are required to comply with the Charter of Rights to the extent that they have functions under the sections of the Charter that outline the human rights to be protected.^[48]
On this issue, Justice Bell held that the effect of this provision is that the Charter also applies to courts and tribunals to the extent that they have functions of applying or enforcing human rights that relate to court and tribunal proceedings. Accordingly, courts and tribunals are required to respect rights which are relevant to their proceedings, which could include the right to a fair hearing (s 24), the right not to be arbitrarily detained (s 21(7)) and the rights of children in the criminal process (s 23).
As I mentioned earlier, this is very much an emerging area of law in Australia and it is likely that these principles will be subject to further revision. The Victorian Charter has been raised in proceedings relating to orders made under the Mental Health Act, public housing, superannuation and pensions, to name a few. I expect that we are only beginning to see its potential.

Conclusion

Before I finish, I would like to comment that during the course of the National Human Rights Consultation, I perceived a great deal of trepidation among governments and public servants about the idea of introducing a federal human rights Act. Understandingly, they are likely to feel that such changes are a little threatening. However, this has caused me to reflect back on the time when Commonwealth administrative laws were comprehensively overhauled. These changes evoked quite a similar reaction among the public service. But now we regard the AAT and the ADJR Act proudly as initiatives that continue to represent world best practice in administrative law.
I believe that a human rights Act that required the executive, legislature and judiciary to act compatibly with human rights would have a significant impact on the protection of human rights in Australia.

^[1] Human Rights Committee, General Comment on the Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 26/05/2004, UN Doc. CCPR/C/21/Rev.1/Add.13; Economic and Social Council, General Comment on the Domestic Application of the Covenant, 3/12/1998, UN Doc. E/C.12/1998/24.
^[2] ICCPR, articles 9, 14, 25, 17, 19, 18.
^[3] ICESCR, articles 11(1), 13, 12(1), 9, 15(1)(a).
^[4] ICCPR, article 2; ICESCR, article 2.
^[5] Applicant A v Minister of Immigration and Ethnic Affairs (1997)190 CLR 225, 230-231.
^[6] Applicant A v Minister of Immigration and Ethnic Affairs (1997)190 CLR 225, 230-231.
^[7] Minister of Foreign Affairs and Trade v Mango (1992) 37 FCR 298, [303]-[305].
^[8] Pilkington (Australia) Ltd v Minister of State for Justice and Customs (2002) 127 FCR 92 at [26]
^[9] AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140, [14]-[16].
^[10] IW v City of Perth (1997)191 CLR 1 at 22-23, 27, 39, 41-42 and 58.
^[11] The Banco [1971] P 137 at [151] per Lord Denning MR.
^[12] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38, per Brennan, Deane and Dawson JJ; Salomon v Cmrs of Customs and Excise [1967] 2 QB 116.
^[13] Coco v R (1994) 197 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ.
^[14] Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J.
^[15] Al-Kateb v Godwin (2004) 219 CLR 562.
^[16] Al-Kateb v Godwin (2004) 219 CLR 562 at 590.
^[17] Migration Act 1958 (Cth) (‘Migration Act’), s 189, s 196, s 198.
^[18] Al- Kateb, 581 per McHugh J; 642-643 per Hayne J; 661 per Callinan J; see also 662 per Heydon J agreeing with Hayne J ‘subject to reserving any decision about whether s 196 should be interpreted in a manner consistent with treaties to which Australia is a party but which have not been incorporated into Australian law by statutory enactment’.
^[19] Al-Kateb, 577 per Gleeson CJ citing Coco v The Queen (1993) 173 CLR 427; 607 per Gummow J, 616 per Kirby J.
^[20] Al-Kateb, 595 per McHugh J.
^[21] R v Secretary of State for the Home Department, ex parte Simms [2002] 2 AC 115 at 131.
^[22] French CJ, ‘Adding Value to Law Making’, Australia and New Zealand Scrutiny of Legislation Conference, Canberra, 6 July 2009.
^[23] Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.
^[24] Minister for Immigration and Ethnic Affairs v Ah Hin Teoh, 291-2 per Mason CJ and Deane J.
^[25] Minister for Immigration and Ethnic Affairs v Ah Hin Teoh, 291-2 per Mason CJ and Deane J; 302 per Toohey J.
^[26] Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1.
^[27] A. Duxbury, ‘The Impact and Significance of Teoh and Lam’ in Australian Administrative Law: Fundamentals, Principles and Doctrines, eds. Groves, M., Lee, H.P., Cambridge University Press, 2007, p305; Department of Immigration and Ethnic Affairs v Ram (1996) 69 FCR 431.
^[28] Minister for Immigration and Citizenship, Direction 41 – Visa refusal and cancellation under s501, 3 June 2009.
^[29] Social Security Act 1991 (Cth), ss 1237-1237AAD.
^[30] French CJ, ‘Oil and water? International Law and Domestic Law in Australia’, The Brennan Lecture, Bond University, 26 June 2009, para 30.
^[31] Minister for Foreign Affairs and Trade v Magno (1992) 112 ALR 529 at 534-535.
^[32] W. Lacey, Implementing Human Rights Norms: Judicial Discretion and Use of Unincorporated Conventions, 2008, Presidian Legal Publications, p155.
^[33] W. Lacey, Implementing Human Rights Norms: Judicial Discretion and Use of Unincorporated Conventions, 2008, Presidian Legal Publications, p166.
^[34] Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 74.
^[35] Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 74.
^[36] Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 74.
^[37] Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 75.
^[38] Walsh v Department of Social Security (1996) 67 SASR 143.
^[39] Kirby J, ‘The Role of the Judge’, Australian Law Review, 1988, vol 62, p514 at p526.
^[40] Human Rights Act 2004 (ACT) s 30; Charter of Human Rights and Responsibilities 2006 (Vic) s 32(1). For example, s 32(1) of the Victorian Charter states: ‘So far as is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.
^[41] The Hon Justice J Spigelman AC, Statutory Interpretation and Human Rights, 2008 McPherson Lectures, University of Queensland, 11 March 2008.
^[42] French CJ, ‘Adding Value to Law Making’, Australia and New Zealand Scrutiny of Legislation Conference, Canberra, 6 July 2009.
^[43] This is consistent with s 15AA of the Acts Interpretation Act 1901 (Cth) which provides that: ‘[i]n the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose of object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object’.
^[44] Victorian Human Rights and Equal Opportunity Commission, Emerging Change: The 2008 Report on the operation of the Charter of Human Rights and Responsibilities, 2008; ACT Human Rights Commission, Submission to the National Human Rights Consultation, 2009.
^[45] Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646, [255]-[333].
^[46] Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646, [255]-[333].
^[47] Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646.
^[48] Charter of Human Rights and Responsibilities Act 2006 (Vic), s 6(2); Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646, [236]-[254].

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Using human rights to inform administrative decision-making

The Hon Catherine Branson QC

Speech to the Council of Australasian Tribunals, 25 August 2009

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