Harry Hobbs provides the third 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 Andrew Byrnes and Lisa Burton Crawford, as well as Adam Fletcher’s reply.

BY HARRY HOBBS

The Parliamentary Joint Committee on Human Rights (PJCHR) has operated since 2012. In this excellent book—the first substantial examination of the PJCHR—Adam Fletcher outlines the Committee’s structure, provides a detailed overview of its work between 2012 and 2015, and assesses its influence in legislative drafting and across the wider community.

A central focus of Fletcher’s book, as well as the broader scholarly debate on the PJCHR thus far, concerns its impact: Is the Committee effective at ensuring human rights are considered in policy development? Is it, as Fletcher asks, a ‘democratic masterstroke or mere window dressing’? If the latter, how could it be improved? Fletcher’s conclusions offer important lessons for those interested in parliamentary accountability mechanisms. In this post, I will draw on Fletcher’s analysis and my own experiences of the PJCHR to reflect on the potential effectiveness of the Uluru Statement from the Heart’s call for a First Nations Voice. Although the Voice is intended to differ in important respects from the PJCHR, close examination of the Joint Committee’s operation is valuable, demonstrating the broader significance of Fletcher’s study.

Assessing the PJCHR’s impact is difficult. As Fletcher explains, the Committee is a unique scrutiny mechanism. Unlike comparable jurisdictions, including the United Kingdom, New Zealand, Canada, and even the Australian Capital Territory and Victoria, human rights scrutiny at the Commonwealth level entirely eschews a role for the judiciary. The PJCHR is ‘the Western world’s only bipartite “dialogue system” for human rights protection’ (p 4). In other words, parliamentarians themselves monitor and assess whether the Bills they vote on are consistent with Australia’s international human rights obligations. The courts cannot preclude enactment of Bills incompatible with human rights, nor can they invalidate legislation. For this reason, Fletcher correctly notes that it is not fair to assess the PJCHR against other (stronger) human rights scrutiny regimes. It should be assessed on its own merits, against the standards it was established to meet.

Unfortunately, Fletcher largely confirms the findings of previous studies (including those by Grenfell and Moulds, Rajanayagam, and Williams and Reynolds). While the PJCHR may perceive ‘positive signs’ that its work ‘is being taken into account in the development and refinement of legislation’, there is a ‘paucity of concrete evidence’ (pp 230, 283, 307) that this is the case.

Fletcher suggests a number of reasons for the PJCHR’s limited effectiveness and proposes several reforms that could enhance its influence. They include: extending the Committee’s mandate to empower it to examine draft Bills and Cabinet policy proposals so that it can provide scrutiny at the earliest possible stage (p 279); adopting some sort of sanction (perhaps including a role for the judiciary) to encourage parliamentarians to ‘take rights seriously’ (p 272); and limiting dissenting reports (p 281). I agree with Fletcher that the first two of these reforms are worthwhile, but I am less certain as to the need for consensus.

At several points, Fletcher identifies a lack of consensus within the Committee as a key driver of its limited impact. Fletcher contends that the Committee’s ‘status as a “trusted source of advice” is under threat from dissenting members’ (p 281), while its ‘departure from bipartisanship’ may impact its ‘ability to influence debate’ (p 206). If the Committee ‘could keep dissent to a minimum…it is likely to have a better chance of approaching the levels of influence enjoyed by [other] committees such as the [Joint Standing Committee on Treaties] or [the Joint Committee on Intelligence and Security]’ (p 206).

To the extent that the Committee’s lack of consensus reveals members’ attitudes towards international human rights law or scrutiny mechanisms more generally, I agree that dissent is problematic. But this is a larger issue concerning the effectiveness of parliamentary accountability mechanisms facing an unreceptive, indifferent, or hostile executive.

My own limited experiences working in the Committee secretariat (after the period under review by Fletcher) revealed the acute challenge facing the Committee. Some members were uninterested in engaging with the human rights issues raised by the secretariat and external legal adviser. These members were seemingly more concerned with ensuring that the final report did not record that government Bills and legislative instruments were (or may be) inconsistent with Australia’s international human rights obligations. Although a finding of inconsistency would not legally prevent or delay the passage of legislation it could make it politically more difficult, inhibiting the government’s agenda.

The Committee responded in several ways. In some cases, fortified by the legal adviser, the Committee accepted that particular Bills and instruments were incompatible, and suggested potential amendments that would resolve the problem. In other cases, the draft report was amended to walk back findings of incompatibility, albeit in a language that all members could accept. Sometimes this took the form of expressing that a measure ‘may’ be compatible without clearly accepting this, while at other times, in torturous language, the Committee would note that more information from the Minister would be required before it could satisfy itself that the relevant measure is compatible with international human rights law. Although this concluded the Committee’s consideration, it meant no clear recommendation was made. In still other cases an uneasy consensus could not be reached, and competing recommendations were made.

It is clear that focus was chiefly on the final recommendation, rather than the report as a whole. The Committee’s deliberations often led only to the redrafting of those recommendations, with the supporting text largely remaining in its original form. While this left a somewhat unbalanced report, with several pages of analysis building an argument for inconsistency followed by a milquetoast finding, it ensured that any potential political cost to a damning report was minimised.

The Committee’s focus during my time in the secretariat was survival. Only a few years old, the Committee had not yet had the time to embed itself within the parliamentary furniture or to transform its working practices into reliable precedent. It faced a real prospect that it may be abolished. In these circumstances, it is no wonder that the PJCHR has not been able to exercise substantial direct influence on legislation or policy—but that has not chiefly been because of dissent within the Committee but because of government attitudes towards international human rights law.

The PJCHR’s experiences suggest that parliamentary accountability processes are inherently limited (as Fletcher recognises on p 315). Whether or not consensus is reached among members of the Committee, an indifferent or hostile executive may simply disregard its findings. They may also actively try to hobble it. Conscious of these challenges, Aboriginal and Torres Strait Islander peoples have struck a different approach in considering the design of a First Nations Voice.

In the 2017 Uluru Statement from the Heart, Indigenous Australians called for constitutional enshrinement of an Indigenous representative body empowered to advise the Parliament on issues that affect Aboriginal and Torres Strait Islander peoples. Although there has been some suggestion that the proposed Voice will operate similarly to the PJCHR, Fletcher’s analysis suggests that three of the Voice’s key design elements will enhance the prospect that it remains effective in the face of an unreceptive government.

First, a key challenge facing the PJCHR is its precarious legal position—its procedures could be radically altered or it could simply be abolished. Constitutional entrenchment of the Voice will remove the threat of abolition, enabling its members to make different political choices. More than this, however, as scholars have suggested, a referendum ‘provides the vehicle for public discussion that is necessary to elevate the Voice to the legitimacy it deserves in our democratic process’. In contrast to the PJCHR, which was established in the face of public support for a stronger mechanism, the process of the representative body’s development may impose political pressure on governments to adopt its recommendations.

Second, although members of the Voice will not have a determinative vote, their status as non-parliamentarians will ensure that some external (political) sanction is levied on a government that ignores its recommendations. While PJCHR members have a vote on legislation, strict party discipline means that members very rarely vote against their party’s position, inhibiting the development of any political pressure to amend legislation.

Third, the Voice will not simply be a scrutiny mechanism, but will also empower Indigenous Australians with a political voice to influence public debate. Although PJCHR members also have a strong political voice, again, party discipline means that government members rarely use that voice to challenge government policy.

Fletcher’s examination of the PJCHR suggests several reasons for its limited effectiveness. His findings have a broader salience, however, and are especially valuable in considering the potential impact of all parliamentary accountability mechanisms. In particular, proponents of a First Nations Voice should carefully consider the lessons that Fletcher draws. While the three factors I have identified cannot ensure that an Indigenous representative body will be effective in the face of a hostile or indifferent government, the fact that they are not present within the PJCHR suggests reasons why it has struggled for impact since its establishment. Indeed, Fletcher’s clear-sighted analysis of the PJCHR is valuable reading for all public law scholars.

Harry Hobbs is a Lecturer at the University of Technology Sydney. 

Suggested Citation: Harry Hobbs, ‘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-harry-hobbs/>.(opens in a new tab)