Adam Fletcher replies to reflections from Andrew Byrnes, Lisa Burton Crawford and Harry Hobbs on his book Australia’s Human Rights Scrutiny Regime: Democratic Masterstroke or Mere Window Dressing? To see all posts please click here.

BY ADAM FLETCHER

I would like to thank the editors of AUSPUBLAW for hosting this book forum, and Lisa Burton Crawford, Harry Hobbs and Andrew Byrnes for their valuable insights. After a little background, I will address each post in turn, then attempt to sum up my thoughts after having had some time to reflect on my own conclusions.

The book assesses the first four years of operation of the rights protection regime established under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth). One of the first comments I received on the subtitle – Democratic Masterstroke or Mere Window Dressing – was ‘I am guessing that the answer is not that this is a masterstroke.’ Overall, the book concludes that the regime is somewhere in between, having produced some very useful work, but so far failing to live up to its potential.

To date, governmental attitudes towards human rights have prevented the scrutiny regime from making a real impact. After several years in Canberra advising the Howard and Rudd Governments on their human rights obligations, it was always my suspicion that such attitudes would prove formidable obstacles to an exclusively parliamentary rights protection scheme, and unfortunately my four-year study only confirmed this suspicion.

In Chapter 2 of the book I address the arguments of those who are sceptical of bills or charters of rights. Although I am in favour of such instruments, I acknowledge that some of the critics have valid concerns about potential anti-democratic tendencies and effects on constitutional balances of power. The federal rights scrutiny regime represents a legal experiment designed (ostensibly, at least – see Crawford’s post) to prove that Parliament, in cooperation with the executive branch, can protect Australians’ rights adequately without judicial involvement. If it were doing so, it would indeed be a democratic masterstroke. So far though, it is not having a significant moderating effect on governmental excesses threatening Australians’ rights, some of which are highlighted below. As Crawford notes, the regime was intended to create a rights dialogue between Parliament and the executive. What it has created, unfortunately, is perhaps best characterised as a dialogue des sourds.

At times during my years of research into the scrutiny regime, it felt as though I were the only person outside Canberra reading its output, so it came as something of a relief when Crawford’s article with George Williams was published in 2013. Williams’s later article with Daniel Reynolds, along with Shawn Rajanayagam’s in 2015, similarly reassured me that the regime was more than a mirage. Nevertheless, the relatively low level of academic engagement with the regime is notable, and reflects its lamentably low general public profile as noted by Crawford (and detailed in Chapter 5 of the book).

Hobbs draws an apposite comparison with the Uluru Statement from the Heart; one I have drawn myself in human rights classes. The Government’s dismissive attitude to the Voice to Parliament proposal very much reminded me of some of the Ministerial responses to the Parliamentary Joint Committee on Human Rights (PJCHR) that I studied. When it came to, for example, potential breaches of economic, social and cultural rights, the PJCHR received responses ranging from dismissive to openly hostile (for details please refer to the second Appendix in my book).

Hobbs also recounts his own experience working in the committee secretariat, which is largely consistent with my impressions. Hobbs’s insight into the politicking over the language in the PJCHR’s reports, as well as its fight for survival, adds a valuable dimension. I had actually hoped to include more such ‘behind the scenes’ information in my book, but the PJCHR declined to allow me to interview serving members or the secretariat, which was disappointing (the book does incorporate the views of public servants and former PJCHR members).

Byrnes’s post emphasises the iterative change over several years that has seen the public servants working on Statements of Compatibility and correspondence with the PJCHR becoming more familiar with human rights discourse, and an admirable level of engagement (in that failures to respond to the PJCHR’s requests for information are rare). I interviewed several public servants for the book in 2014-15, who broadly confirmed this observation. However, I agree with Byrnes that further research is needed into progress years later (especially with the demise of human rights training for public servants, and public service policies undermining institutional memory).

In preparing chapters for forthcoming volumes, I have recently had the opportunity to revisit and update my research. To my dismay, some of the extreme rights-limiting legislation passed in the 44th Parliament, which I identify in the book’s Conclusion, has been supplemented in the 45th Parliament with laws that impose severe restrictions on vulnerable recipients of government allowances; provide for the calling out of the Australian Defence Force, and allow it to use lethal force, domestically; extend the operation of ASIO questioning and detention powers, despite official reports that they are already disproportionate; and provide powers to undermine encryption, which is crucial to digital security, covertly, as well as to search computers anywhere in the world. This list is by no means comprehensive – PJCHR reports detail many more pieces of concerning legislation introduced in recent years (summaries can be found in the Annual Reports). Some of the powers contained in these laws are frankly terrifying, and the PJCHR has been able to do little more than document them, despite its assiduous reporting (thanks largely to the efforts of its secretariat and legal advisers, who are a real strength of the regime).

In addition, as Byrnes notes, it was disheartening to see Government members disavowing one of the PJCHR’s own reports on a particularly cynical and disproportionate immigration Bill in 2016, and specifically disparaging the legal advice that forms the core of the PJCHR’s work.

Byrnes is of the view that the PJCHR is more of a curate’s egg than window dressing. Despite my findings of a downward trend, I too retain some optimism. It remains my hope that the scrutiny regime can return to the ‘golden era’ of 2012-13 that I identify in the book (p 180). With a Chair and members willing to champion its reports, both in Parliament and in public, along with some of the technical reform suggestions I have made (covered in the other posts), I believe the regime can make at least as useful a contribution to rights protection as its UK counterpart. Having said that, there is a gulf between the attitudes of (most) UK and Australian politicians when it comes to human rights law. The same might be said of those holding high judicial office in each country.

Since the advent of the scrutiny regime, the Commonwealth has taken some notable steps forward for human rights (eg passage of the NDIS Act, legalising same-sex marriage and ratifying the Optional Protocol to the Convention against Torture), but also several steps backward (eg displaying unwarranted hostility towards the PJCHR, the Special Rapporteur on Torture and the President of the Australian Human Rights Commission; introducing extraordinary legislation such as that described above and plumbing new depths in cruel treatment of asylum seekers).

As Byrnes observes, even a charter of rights would not necessarily prevent a determined government from passing legislation at odds with Australia’s international human rights obligations. However, it would help with redress for violations, and contribute to a cultural shift, as we have seen at the state and territory level. Ultimately, only leaders who give human rights due consideration alongside economics and security can drive the changes we need to see in Canberra. Here is hoping the next generation of politicians has more respect for the scrutiny regime, and Australians’ wishes for better human rights protection generally.

Adam Fletcher is a Lecturer in the RMIT Graduate School of Business and Law.

Suggested Citation: Adam Fletcher, ‘Book Forum on Adam Fletcher’s Australia’s Human Rights Scrutiny Regime: Democratic Masterstroke of Mere Window Dressing?’ on AUSPUBLAW (24 April 2019) <https://auspublaw.org/2019/04/book-forum-adam-fletcher/>.