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Contents
Impactof Recommendation 11: amendment to the Administrative Decisions (Judicial Review) Act 1975. 5
Australia is the only developed nation without a legislative or constitutional Bill of Rights.Australian’s human rights obligations are, in large part, a derivative of the international treaties to which the country has become a party. This is the reason why all Australian governments, that is, the commonwealth, the state, Territory and local governments, need to play a special role in the protection and promotion of human rights.
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When the National Human Rights Consultative Committee was set up, it was expected that it would come with recommendations that would change the human rights landscape in the country. The Committee lived up to all Australians’ expectations by providing various recommendations on how human rights ought to be safeguarded by various Australian governments. Among these recommendations include Recommendation 9 and Recommendation 11.
According to the background paper published by the Commonwealth of Australia (2008, p. 6), the Committee proposed in Recommendation 9 that human rights compliance should be incorporated by the Federal Government into the Australian Public Service Values and Code of Conduct[1]. In Recommendation 11the committee recommended that an amendment to the Administrative Decisions Judicial Review Act 1975 was necessary. The Act, according to this Committee, should be made to reflect the international human rights obligations that Australia has as well as the relevant consideration in matters of the country’s decision making process.
Recommendation 11 was based on the premise that the Australian government was going to act upon recommendation 5, according to which, the federal government was required compile a complete interim list of various rights that should be promoted and protected, regardless of whether there was going to be an enactment of a Human Rights Act or not. The Committee recommended that the list should contain rights emanating whose origin is the International Covenant on Civil and Political Rights. Additionally, the list ought to contain rights that are delivered from the International Covenant on Economic, Social and Cultural Rights. Other items that should be contained in the list include the right to education, the right to the highest possible standard of health and the right to a comfortable standard of living, including clothing, food and housing.
According to Recommendation 5, the government was required to replace the interim list with a definitive list within two years of the publication of the interim list. The definitive list was supposed to contain all the country’s international human rights obligations. The
Australian administrative law contains provisions for many rights and protections. There are many human rights safeguards that the law describes. For instance, any person who is affected by a government decision may enjoy the merit of having the decision reviewed by the same government. Other safeguarded provided for in the country’s federal administrative law include the ability to access the various documents that may be relevant in the case of an administrative decision that is made about an individual within the provisions of the Freedom of Information Act 1982 as well as privacy protections as outlined in the Privacy Act 1988 (Cth).
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The recommendations of the National Human Rights Consultation Committee would change the current law and practice in Australian in various ways. According to Recommendation 9, the functioning of Australian Public Service Values and Code of Conduct would change.
Impact of recommendation 9: the incorporation of human rights compliance in theAustralian Public Service Values and Code of Conduct
The Australian Public Service (APS) is supposed to perform its roles in a professional and impartial manner. This makes the body an important pillar in the enactment of the country’s human rights. In order for human rights compliance to be established in the APS, laws would need to be established in order to provide a legal framework to be followed by public service employees.
The APS is always at the heart of the government’s operations by virtue of being responsive to the government’s programs and policies. Additional, the same body is an important source of information on how the government should implement programs and policies.
The APS is accountable to the parliament, the government and the Australian public. Against this backdrop, integrating human rights compliance into this body is an important step towards entrenching a culture adherence to human rights by making the best use of existing administrative structures to entrench the highest possible human rights standards.
For the Australian government to be able to enact the government’s policies there is need for a certain measure of independence to be maintained. The APS workforce guarantees that not only independence, but also knowledge and experience in the implementation of tasks aimed at fulfilling compliance.
Additionally, APS employees are not required to participate in any party political activities including using office resources and facilities in order to offer support that is political in nature. Although the APS code of ethics may be sound very human-rights friendly in writing, it is not possible to maintain this strictness in practice. This is why the Australian Human Rights Consultative Committee was set up in order to assess the problems that exist in the country’s human rights record. Recommendation 9, if enacted, would make it easy for APS employees to adhere to the human rights provisions just as they are outlined in the professional code of conduct.
The APS code of conduct requires all APS employees to comply with all Australian laws. This includes all laws relating to human right compliance. At the commonwealth level, human right goals cannot be easily realized without the involvement of the APS. Instead of creating a new code of conduct for the implementation of new human right laws, the existing code of conduct for APS employees would be enough. At the local and territory government levels it would be necessary to put in place a new code of conduct for all the government officials who are involved in matters of human rights.
Incorporating human right compliance in the Australian Public Service and Code of Conduct implies increasing the workload of government officials who have to deal with new responsibilities. The government would need to set up new oversight bodies to ensure that all the international human right obligations set up are fulfilled well by employees whose capacity only extends up to the national level. For this reason, the reforms may not bring about improvement in the way the government operates as far as the human rights record is concerned.
Impactof Recommendation 11: amendment to the Administrative Decisions (Judicial Review) Act 1975
The Recommendation 11 would lead to the introduction of a human-rights based judicial review at the national level. Such a recommendation would be internationally acceptable. Additionally, it would put an end to pressure by the Commonwealth to put a strong human rights framework that safeguards the interests of all Australians.
At the superficial level, it becomes easy to develop a powerful case for a national approach to bill of rights in Australia. Constitution rights decisions would be greatly affected by an amendment to the judicial review, whichever the nature of the amendment. Unfortunately, this matter is not as simple as it sounds. Without carefully worded human rights legislation at the national level, there is a high possibility of decision making to produce a sense of unsystematic unfairness on the part of the government.
The amendments made to the judicial review would have a very significant effect on the level human rights performance in Australia. However, this is not the main issue; the main issue is whether this performance would end up being better or worse if considered in additional to the Recommendation 5.
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Some of the benefits that would arise as a result of amendment to the Judicial Review Act include efficiency in human rights record at the national level and enhanced international human rights legitimacy and authority including the development of a very predictable and stable regional and international policy environment. Additionally, the international diplomatic capital would be enhanced, through enhanced policy effectiveness and coherence. If enacted in the right manner, diverse, cross-cutting international networks would be established with states that are leaders in matters of safeguarding and promoting human rights.
A comprehensive legislation is the best bet for the Australian government in her pursuit of long-term, far-reaching human rights policy changes that are consistent with local judicial provisions. Meanwhile, the legislation would not only lead to uniformity across the country’s jurisdiction; it would ensure that all covenant provisions are put in place across all levels of government. Additionally, a system would be put in place whereby Australian international human rights are consistent and compatible with domestic laws. In this case, whenever there are conflicts between domestic laws and human rights provisions, the latter provisions would take precedence.
The lack of a Human Rights Act remains one of the factors that continue to isolate Australian law from a fully-fledged development of an international and comparative jurisprudence. It is against the thought of such a consideration that one would consider supporting amendments to the Judicial Review Act.
The National Human Rights Consultation Committee rightly states that over time, the Australian common law has continued to develop through the assistance of a very large body of cases that are considered by courts through other common law systems, notably the systems that exist in the United Kingdom, New Zealand and Canada. All these countries have formed unique forms of human rights charters. There is a growing concern that these charters are exerting an influence on the respective jurisprudences’ common laws, meaning that within a short time, these jurisprudences will not be good sources of Australian common law. This situation would lead to an intellectual isolation of sorts.
Another reason why the amendments proposed in the National Human Rights Consultation Committee report ought to be adopted is that if Australian parliament does not facilitate such amendments, the judiciary will find itself unable to play crucial roles in human-rights related important debates that continue to take place today in many jurisdictions both at the local and international level.
However, the effectiveness of Recommendation 9 is dependent upon the extent to which the Australian government implements Recommendation 5. Here, the committee proposed that the federal government should compile a complete interim list of all rights that should be promoted and protected. Again, the composition of this list determines greatly the extent to which efforts at creation of a Human Rights Act in the country bear fruits.
The Committee went as far as to propose the contents of the interim list, which according to Recommendation 5, would have to be replaced by a definitive list after two years. I support such reforms because they would change the current law and practice both at the national level and at the international level. Specifically, the Australian Judiciary would be better equipped with ways of increasing outcomes in human right-related cases when the Judicial Review Act is passed. This would lead to the creation of a ‘vicious circle of promotion and protection of human rights.
Conversely, failure to promote efforts aimed at protecting human rights at home would put Australian in a position whereby the country lags behind in the performance record relating to the promotion of the rights of indigenous peoples. Today, the world is becoming rapidly globalized; as this continues to happen, the line between national and international human rights frontiers continues to blur more and more. Since there are very many international human rights that a developed country such as Australia cannot afford to abandon, it is prudent that any review towards harmonization of local and international law reforms is a welcome gesture both by Australian government leaders and administrative law scholars.
In conclusion, although Australia has a relatively good human rights promotion and protection record, it is yet to reach perfection. It is important that the nation adopts Recommendation 9, which proposes the incorporation of human rights compliance by the federal government into the Australian Public Service Values and Code of Conduct.
Additionally, the performance of Australian jurisprudence would improve if the government acted upon Recommendation 11, which requires that the Administrative Decisions Judicial Review Act 1975 be amended. The implementation of these two recommendations would lead to improvement in performance in the judicial processes both locally and internationally in fulfillment of the country’s human rights obligations and responsibilities.
References
Commonwealth
of Australia, 2008, National human rights consultation Background Paper, The
Australian Government, Attorney General’s Department.
- Commonwealth of Australia, 2008, National human rights consultation Background Paper, The Australian Government, Attorney General’s Department.
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