Date: 
Wednesday 2 December 2015

Author

Area : Education

 

Introduction

I would like to begin by acknowledging the traditional custodians of this land, the Ngunnawal people, and pay my respects to their elders, past and present.

The Attorney-General’s Department is pleased to be a co-sponsor of this event, and I thank you all for attending. I also thank  Professor Gillian Triggs and Stephanie Foster for sharing their perspectives.

The importance of today’s discussion has been demonstrated by a number of significant human rights anniversaries and debates that have occurred this year.  In the time available to me, I would like to reflect on some of the structures that frame the consideration and implementation of human rights in Australia that are relevant to our work as public servants.

Magna Carta

Australia’s legal culture is underpinned by the rule of law and has strong historical roots.

As Professor Triggs observed, this year is the 800th anniversary of the Magna Carta. 
Its enduring significance relates to the rule of law, that is the principle that all persons and authorities should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and administered by independent courts and tribunals.
The Attorney-General’s Portfolio has a formal role in protecting and promoting the rule of law, which we carry out in a range of ways:

  • Independent drafting by OPC and AGD’s legislative scrutiny role help ensure Commonwealth laws are clear, predictable and accessible
  • Our policy responsibility for courts and tribunals and the laws relevant to their operation ensures laws are publicly adjudicated in independent courts and administrative bodies and that dispute settlement is fair and efficient where parties cannot resolve disputes themselves,
  • Our provision of guidance on criminal, administrative and human rights law ensures that public servants are able to apply these principles, and 
  • The existence in our portfolio of bodies independent of government, such as the DPP, courts and tribunals, the AHRC and law enforcement agencies means disputes and criminal prosecutions are resolved independently of government, human rights issues are highlighted and that public servants and politicians are subject to the law in the same way as other citizens. 

While the Attorney-general’s portfolio has this formal role, public servants from many agencies are involved in the development and application of the law and so need to understand and comply with the rule of law.

Australia’s legal culture is underpinned by the rule of law and has strong historical roots.

As Professor Triggs observed, this year is the 800th anniversary of the Magna Carta. 

Its enduring significance relates to the rule of law, that is the principle that all persons and authorities should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and administered by independent courts and tribunals.

The Attorney-General’s Portfolio has a formal role in protecting and promoting the rule of law, which we carry out in a range of ways:

  • Independent drafting by OPC and AGD’s legislative scrutiny role help ensure Commonwealth laws are clear, predictable and accessible
  • Our policy responsibility for courts and tribunals and the laws relevant to their operation ensures laws are publicly adjudicated in independent courts and administrative bodies and that dispute settlement is fair and efficient where parties cannot resolve disputes themselves,
  • Our provision of guidance on criminal, administrative and human rights law ensures that public servants are able to apply these principles, and 
  • The existence in our portfolio of bodies independent of government, such as the DPP, courts and tribunals, the AHRC and law enforcement agencies means disputes and criminal prosecutions are resolved independently of government, human rights issues are highlighted and that public servants and politicians are subject to the law in the same way as other citizens

While the Attorney-general’s portfolio has this formal role, public servants from many agencies are involved in the development and application of the law and so need to understand and comply with the rule of law.

ALRC Inquiry

The anniversary of the Magna Carta has occurred at a time the Australian Government has renewed its focus on civil and political rights, and promoted the importance of traditional common law rights and freedoms.

In recognition of the enduring importance of these traditional rights and freedoms, the Attorney-General asked the Australian Law Reform Commission to inquire into Commonwealth legislation which may unreasonably encroach upon them.

The ALRC released its interim report in July and its final report is due to the Attorney in December 2015. 

In examining traditional rights and when they may be encroached upon, the ALRC has examined a range of legislation across Government.

In particular, it has drawn out a wide range of provisions –  including those related to secrecy and information disclosure and provisions such as those limiting freedom of movement in areas like environmental regulation, child support and migration laws.

The ALRC has indicated the need for explanatory material to provide adequate justification for encroachment upon fundamental rights and freedoms.

Further, it is also considering the extent to which additional safeguards, including reviews, should be included in legislation that limits rights.

Given the deep analysis and wide consultation undertaken by the ALRC, this review will provide a strong base to investigate further law reform across portfolios.

The celebrations of the Magna Carta and the ALRC inquiry have enlivened public debate about the way we protect rights and freedoms in Australia.

This is a crucial community debate in the current political climate. A climate where complex and seemingly intractable policy problems, such as extremist violence, challenge us to define the acceptable limits on our security and our freedoms.

United Nations

It is also 70 years since the United Nations was established with the signing of the UN Charter in 1945.

Australia has been a long-standing believer in the importance of international law because we recognise the enduring benefit to Australia of participating in a rule based international system.

As part of this, we advance the rule of law internationally by actively promoting adherence to the global rules-based system through international organisations, our bilateral relations and helping to build effective governance and stability in our region.

While Australia does not always agree with the views of the UN and may from time-to-time be justifiably criticised by it, the reaction when this occurs should not be confused with withdrawing from multilateralism.   In fact, Australia has recently reinvigorated its focus on engagement with the UN.

Australia’s candidacy to become a member of the United Nation’s Human Rights Council for the 2018-2020 term reflects a belief in, and a commitment to, the human rights of all Australians and the human rights of all the peoples of the world.

If successful, Australia will have additional opportunities to show leadership on the human rights issues important to both Australians and the international community.

This would continue the long history of engagement Australia has had with the UN human rights system.

Over the years, Australia has assisted in the development of human rights treaties and has then ratified them. This signals Australia’s willingness to be bound by these obligations which provide an enduring reference point for the expectations of the Australian community in their interaction with Governments.

Universal Periodic Review / government agenda

Australia engages with the UN through appearances before bodies that oversee the implementation of human rights treaties and the Human Rights Council where Australia’s human rights record is examined by the international community.It is important that Australia engages constructively with these processes. Our role as public servants is to make recommendations to Government that are honest from the perspective of compliance with international human rights obligations and to provide information and reasoning to support Government’s decisions in these fora.

On 9 November, Australia will be examined as part of the UN Human Rights Council’s Universal Periodic Review (or UPR).

This process aims to improve the human rights situation in all countries and address pre emptively issues of concern about human rights.

  • The Human Rights Council reviews the human rights records of all 192 member states once every four years.
  • Some of you may have been consulted in the preparation of Australia’s National Report, submitted earlier this year, and I extend AGD’s thanks to you.

In preparation for our engagement with the UPR process, we can reflect on Australia’s achievements since our first appearance in 2011.

A range of Departments from across Government contributed to Australia’s achievements – particularly in relation to the protection of LBGTI people’s rights to be free from discrimination, the rights of people with disabilities, continuing advocacy for the abolition of the death penalty and the appointment of the National Children’s Commissioner.

There is also a huge amount of work occurring at the moment to promote gender equality through economic empowerment, participation in leadership and ending violence against women.

For example, the National Pay Strategy seeks to address pay equity. In addition, the Government’s support of the BoardLinks Programme aims to identify women for Australian Government board appointments. These are practical initiatives to promote equality.

Australian governments have renewed national focus on ending violence against women and children, work which must continue to be done by the public service across all jurisdictions.

A final example is the commitment to hold a referendum to recognise Aboriginal and Torres Strait Islanders in the Australian Constitution as Australia’s First Peoples.

Public servants are key to the implementation of all of these policy actions. 

The Human Rights (Parliamentary Scrutiny) Act

Our political system is based on Parliamentary supremacy.The Commonwealth parliamentary scrutiny model preserves Parliament’s role in the making of laws and promotes what the ALRC refers to as an appropriate culture of justification where governments seek to limit human rights for policy objectives.

The model aims to draw the Parliament’s attention to human rights risks in proposed legislation, but leaves it to the Parliament, being made up of democratically elected representatives, to determine how to proceed with such legislation.

It is almost 4 years since the Human Rights (Parliamentary Scrutiny) Act passed the Australian Parliament.

As Professor Triggs has noted, this Act introduced the requirement for Statements of Compatibility with human rights to be tabled for new legislation.

It also required the establishment of a new committee, the Parliamentary Joint Committee on Human Rights.

Over this period, the Committee has had three Chairs – each of whom has brought their own style to its work. 

During this time the way the Committee concludes its assessment of compatibility of legislation has changed. At times, the Committee has split on the compatibility of legislation. It has concluded that some legislation is not compatible. It has further concluded that insufficient information has been provided for it to determine compatibility.

However, all Chairs have held Ministers and private members to a high standard in the provision of additional information and reasoning in justifying limitations on rights. 

Both Statements of Compatibility and Committee reports are public, which facilitates Parliamentary and community scrutiny of legislation, and transparency in the law making process.

  • In particular, it encourages a dialogue between Parliament and the Executive, your Ministers, about human rights considerations.

However, there are challenges for the Parliamentary Joint Committee.  The first and most significant is the sheer volume of legislation – both Bills and legislative instruments – coming through the Parliament. Combined with the pace of much legislation, this raises issues for the

Committee as to how best ensure that human rights are considered in a timely way so that this consideration can form part of Parliament’s consideration of the legislation.

The second challenge is the need for the Parliamentary Joint Committee to understand the policy context and objectives of legislation in order to undertake the assessment of compatibility. This is where the Committee can leverage off other Committees undertaking similar examinations of legislation and the evidence before those Committees.

These changes to process have impacted on the responsibilities of public servants in formulating policy and preparing legislation.

Public servants have been required to engage with Australia’s human rights obligations on a regular basis.

In doing so, we have contributed to transparency in the formation of legislation, more robust debate, and legislation that is mindful of the people it affects.

Public servants have engaged positively with the Statement requirement, assisting Ministers to respond to the Committee’s requests for information and advising Ministers in response to any recommendations made.

AGD’s observation is that generally, they have done so in a matter consistent with the APS Values relating to professionalism, accountability and responsive provision of advice.

  • Statements always accompany proposed legislation as required and are of an increasingly high quality.

Further, Departments are really engaging with questions from the Committee.

It is now clearly expected that public servants understand and shape the relationship that policy and legislation has with human rights.

The Attorney General’s Department has been a partner in this process. We will continue to provide support and to ensure that our resources are relevant and targeting the issues raised by the Committee.

Further, the International Human Rights Law Branch within AGD is available to provide legal advice on international human rights law on a billable basis.  It can also assist with Statements of Compatibility.

Conclusion

Human rights shape our work as public servants and will continue to do so.

The rights and freedoms established in our common law, as well as the APS Values and Code of Conduct, reflect and support the basis of our representative democracy.

I look forward to following the continuing dialogue about human rights within the APS, the Australian Parliament and the international community.

I encourage you to do the same.