Andrew Byrnes provides the first post in our book forum on Adam Fletcher’s Australia’s Human Rights Scrutiny Regime: Democratic Masterstroke or Mere Window DressingTo see all posts please click here. Click through for posts by Lisa Burton Crawford and Harry Hobbs, as well as Adam Fletcher’s reply.

BY ANDREW BYRNES

Introduction

Adam Fletcher has written an excellent book on the Australian Parliamentary Joint Committee on Human Rights (PJCHR) and the human rights scrutiny regime of which it is a central feature. Yet the reader may come away feeling that, despite the optimism inherent in the recommendations he offers for the improvement of the PJCHR’s work, the task may be a rather forlorn one and may not repay the effort and resources needed to implement them. While Fletcher sees some positives in the operation of the PJCHR system so far (and indeed there are some), its failure to make any significant dents in legislation involving significant breaches of human rights, the institutional tensions and structural barriers built into the system, and the likely lack of political commitment and resources to substantially change the situation that Fletcher dissects, seem formidable obstacles to bringing about significant improvement.

Despite these limitations Fletcher concludes that the PJCHR-based scrutiny regime has nonetheless made worthwhile contributions. He notes the large body of rigorous human rights analysis contained in the Committee’s reports and that, following PJCHR comments, a small number of amendments have been made to Bills and Ministers have undertaken to address issues in any future review or amendment (a promise that may reassure perhaps only the incessant optimist). Nonetheless, his overall assessment is that the impact of the regime falls well short of what many may have (un)reasonably hoped for from the PJCHR process.

Evaluating the regime

In evaluating the performance of the scrutiny regime Fletcher does not adopt a simple input-output measurement, looking to see how many amendments to draft legislation have been made following the Committee’s consideration of Bills. Rather he adopts the broader approaches proposed in other literature which recognise that there are other measures of the impact of such bodies and that at least some of the impact of such a procedure may be invisible, that its impact may be diffuse and difficult to identify on the public record, and that it may also be longer-term. Fletcher’s arguments and proposals are based on an exhaustive analysis of the documentation of the PJCHR process from 2012-2015, interviews with those who are or have been involved closely in its work, and other sources.

One of the challenges in assessing the contribution of a body such as the PJCHR is that it is rarely easy in practice and almost always difficult methodologically to identify the unique causal impact of the work of one body such as the PJCHR on a particular legislative outcome (especially where other Parliamentary Committees are involved as well). This is even more the case when one is looking at a diffused influence and often medium- to long-term impact, which may stimulate or reinforce other influences. It is liking asking which of the tributaries of the Amazon flows into the sea.

Engaging Ministers and the bureaucracy

A principal objective of the scrutiny regime was to encourage the bureaucracy and Ministers to engage seriously and deeply with human rights analysis. The public face of this was the preparation of statements of compatibility (SOC), which are meant to provide not just a human rights analysis but evidence that human rights issues have been properly taken into account in the design of policy and the drafting of legislation. As Fletcher notes, the record here is mixed, with SOCs of varying quality, comprehensiveness and persuasiveness.

That of course is where the PJCHR comes in and it has been insistent, almost relentless, in its pursuit of information to fill gaps in SOCs, with its inquiries directed to the relevant Minister but largely dealt with by the relevant department. Fletcher argues that the regime has not consistently generated real engagement by the bureaucracy, and that the Committee’s requests and analysis have tended at best to be tolerated by Ministers or seen by them as a source of irritation rather than as an opportunity for constructive dialogue.

The record has indeed been mixed, but it is important not to overlook the iterative nature of this process (though lack of institutional memory in some departments seems to be an issue) or the many positive examples. While there have been some tense exchanges between the Committee and Ministers (both on and off the record), the level of Ministerial response, even though not always timely, has been significant. It is rare that a Minister fails completely to respond or is simply dismissive of Committee concerns.

What this means of course is that the public servants in the Minister’s department must substantively respond to the Committee. This is a critical arena in which human rights knowledge and analysis needs to be developed and applied, and engagement with the Committee has the potential to help integrate those issues into the policy-making and legislative process. We have some empirical evidence to suggest that this does take place both at the Commonwealth and State/Territory levels, but the extent of the impact of the process of such scrutiny requires further research.

What can be seen is that the PJCHR’s persistence in pursuing responses from the executive has provided a rich body of material underlying and justifying policy decisions that would not otherwise have been made available for public scrutiny. Sometimes that has confirmed that there are sound reasons for limiting the enjoyment of human rights, while in other cases it has shown that human rights have simply not been taken into account adequately or that less restrictive alternatives have not been considered. While Fletcher is of the view that the level of dialogue with the executive has declined since 2015, the reports of the PJCHR in the last few years suggest it still continues to be relatively good, albeit often resulting in an impasse.

The PJCHR as a technical scrutiny committee and the challenges of achieving consensus

As Fletcher notes, the Committee has been careful to present itself as a ‘technical scrutiny’ body similar to the existing Senate scrutiny committees on Bills and on regulations and ordinances, rather than as a Committee that pronounces on the policy merits of proposed legislation. In fact, the nature of a substantive human rights analysis, in particular the issue of the proportionality of restrictions on rights, means that the PJCHR’s analysis of legislation goes well beyond that of the other scrutiny committees, both in the scope of issues covered, and its less formalistic and deeper substantive analysis, reflecting its different mandate.

One of the Committee’s achievements has been to regularly produce consensus reports — with a few notable exceptions. This reflects the Committee’s narrative of itself as a ‘technical’ scrutiny body, underpinned by the preparedness of PJCHR members for the most part to distinguish between their role as parliamentarians and their role as political partisans. This has also been influenced by the efforts of PJCHR chairs to achieve consensus as far as possible. The role of the Secretariat has also been critical: this has involved the provision of advice based on a consistent application of the Committee’s analytical framework for human rights compatibility, which is drawn from international human rights law and has been applied since its early days to all Bills. The trust that has developed between the Committee and its advisers has generally enabled members to proceed on the basis that the legal analysis laid before them is not politically partisan, and after due consideration and amendment to support the adoption of analyses identifying human rights problems in legislation proposed even by their own party.

The advice provided makes it possible for members to carry out their duty to scrutinise legislation as parliamentarians, while not necessarily committing them to oppose the legislation in the Parliament when it comes to a vote. It would of course be better if members regularly took the human rights concerns back to their party rooms and sought to persuade the proponents of the legislation to amend it accordingly. But even if that does not happen, then the ability to act in two parallel roles as a parliamentarian in a non-partisan way and as a party member from a policy perspective, has its value to the extent that Committee members are prepared to accept and endorse a balanced and consistent human rights analysis.

Membership of the PJCHR requires Committee members to engage conscientiously with the international human rights framework (having upgraded their knowledge if need be), and not take exception to criticism of specific legislation on the basis of their own personal positions or because their party is proposing the bill. On the whole this has been avoided. However, as Fletcher notes, the issuing of dissenting opinions by a small number of Committee members in 2014-2015 (largely driven by one member, it seems) gave rise to concern that if dissents were to become a regular feature of the PJCHR’s work, it might irretrievably fracture the strength of consensus reports and undermine the distinctive contribution of the Committee. This was particularly so as the dissents in question did not appear to reflect the outcome of reasoned debate in the Committee. Equally the references in some later reports to unattributed and unexplained differences of view as to compatibility held by some members were problematic.

Perhaps of more concern is the disavowal by some members of the PJCHR in 2016 of the views expressed by the Committee on a contentious Bill proposing that refugees on Nauru would never be allowed to visit Australia. They expressed their support for the Bill, justifying their resiling from the PJCHR’s views (to which they had presumably agreed) on the ground that ‘the legal advice referred to in the report was not drafted by the committee members and represents one opinion.’ Whether the result of inattention, an inability to distinguish between a committee view adopting dispassionate legal analysis and a partisan position on policy, or simply their response to political embarrassment, this response seems to evidence a lack of understanding of the independent nature of membership of a committee such as the PJCHR.

Although these developments were seen at the time as threatening the credibility and usefulness of the Committee, they have turned out to be the exception rather than the rule. Such partisan positioning does not appear to be a feature of the latest reports of the Committee, even where critical assessments are made of important legislative initiatives.

The future of the regime – recommendations for change

Fletcher recommends significant changes to the regime as well as suggesting a number of operational changes to improve the process, though he does accept that some of the major challenges lie both in institutional tensions and in the attitudes of both politicians and public servants and the broader community. He sees the introduction of a statutory charter of human rights – an element of the originally proposed human rights framework – as an important addition. This is not just because of its symbolic effect or the possibility of judicial challenges but because of the beneficial effect that a directly enforceable right as against a public authority appears to have on the internalisation of human rights standards by public authorities. Even so, while the introduction of a statutory bill of rights is desirable, it is unlikely to provide a reliable bulwark against a government intent on passing legislation that is incompatible with human rights.

Among the other changes Fletcher suggests is the reintroduction of training for PJCHR members and public servants, allowing the PJCHR more time to do its work between introduction and passage of a Bill, the broadening of its mandate, a greater engagement with civil society, and more frequent use of its power to hold public inquiries.

Certainly a greater use of public inquiries could be useful. While this may not always be possible in relation to Bills before the Parliament because of the Parliamentary sitting schedule, the PJCHR could make greater use of its power to inquire on its own initiative into existing legislation.

Civil society institutions should also take it upon themselves to send submissions to the PJCHR on existing or proposed laws that appear to infringe human rights. While in the case of Bills that are before the Parliament, timing may make this tricky, in some cases the Parliamentary schedule may mean that these submissions can be taken into account by the Committee or its advisers. This may be possible if the Bill in question is introduced in a week which is not followed immediately by a week in which both the House and Senate are sitting (when the PJCHR meets). In any event there will often be two rounds of analysis undertaken by the Committee, its initial analysis and request for further information and its second-round analysis.

Conclusion

The PJCHR has given us a body of rigorous analysis of the human rights limitations of hundreds of pieces of Commonwealth legislation since 2012; its jurisprudential contributions in areas such as immigration law, refugee and asylum-seeker law, the erosion of procedural safeguards, national security legislation, extradition and sanctions law, the rights of indigenous Australians, and economic and social rights, are an important reference point for how international human rights standards should be incorporated into domestic law. Yet the immediate impact of much of this analysis has been limited, especially on legislation with a high political profile. The challenge is to see whether the scrutiny regime can have a greater impact in the future: that involves changing community and politicians’ attitudes as well as institutional and operational dimensions.

Should there be a change of government at the May 2019 federal election, there will be the opportunity for a review of the Australian Human Rights Framework introduced by Labor, of which the Human Rights (Parliamentary Scrutiny) Act 2011 was one pillar. Adam Fletcher’s work provides an important resource for undertaking that assessment and identifying how we can make progress in ensuring that domestic legislation is consistent with Australia’s international human rights obligations.

Andrew Byrnes is a Professor in the Faculty of Law, University of New South Wales. He served as part-time external legal adviser to the PJCHR from November 2012 until September 2014.

Suggested Citation: Andrew Byrnes, ‘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-andrew-byrnes/>