Lisa Burton Crawford provides the second 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 Harry Hobbs, as well as Adam Fletcher’s reply.

BY LISA BURTON CRAWFORD

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) has had little effect on the public conscience. Many people (including many lawyers) do not know that it exists. Those who do often have little detailed understanding of how it works. This is a disappointing outcome for an Act that then Attorney-General George Brandis lauded as ‘the most important piece of human rights legislation in a quarter of a century’ when it was debated in the federal Parliament (Parliamentary Debates, Senate, 25 November 2011, 9661).

Whatever its failings, the Act is certainly worthy of our attention. It raises three important questions. Why did we end up with this unique model of rights protection? Has the experiment worked (and indeed — what are the standards against which we should assess it)? If not, what can be done to fix it? At the very least, the existence of this legislation allows the federal government to assert that we have an Australian Human Rights Act. Those who hope for better must therefore show why the existing regime is inadequate, and then make the case for change.

In light of this, Adam Fletcher’s study of Australia’s human rights regime makes a valuable contribution to Australian public law. His title gets right to the heart of the matter: is a model of rights protection which does not involve the courts in any way a ‘democratic masterstroke’, or mere ‘window dressing’? While there are articles examining the design and operation of the Act (including those by Shawn Rajanayagam, George Williams and Daniel Reynolds, and George Williams and me), Fletcher provides a more extended study which provides new insights, including from interviews he conducted with the public servants who worked on Bills and legislative instruments examined by the Parliamentary Joint Committee on Human Rights (PJCHR) established by the 2011 Act. He should be commended for analysing the regime on its own terms and for his careful, comprehensive and thoroughly readable treatment of it, which addresses each of the important questions identified at the outset.

The book examines the origins of the regime, though its focus is on its practical operation. As Fletcher explains, a Human Rights Act that conferred significant powers on the courts seemed unlikely at the federal level. The reasons for this include: first, a strong and long-standing aversion to judicial involvement in rights-matters; secondly, a more recent concern about the limitations imposed by Chapter III of the Australian Constitution, highlighted by the High Court in Momcilovic v The Queen. While Fletcher does not dwell on this point, it would also be contestable (at least) to say that the ‘dialogue models’ of rights protection in force in Victoria and the ACT, and recently enacted in Queensland, have been great successes. And even the most ardent human rights supporter must recognise that the judicial enforcement of human rights is contentious, and can be self-defeating if not done right. For these reasons, there was reason to experiment with other models of rights protection, besides those in place at the time the Human Rights (Parliamentary Scrutiny) Act was enacted. After analysing the design of that Act, as well as the operation of the requirement to table Statements of Compatibility (chapter 3), the PJCHR (chapter 4), and the broader framework (including education initiatives) of which the Act was a part, Fletcher concludes that it has had limited success.

The book analyses proposals for reform that have been offered by others, and makes its own. One of the primary criticisms that has been made of the Act, including by George Williams and me, is the indiscriminate way in which it incorporates Australia’s international human rights obligations — as opposed to enacting an express and perhaps narrower list of rights designed following some process of public consultation. This is a contentious point. Fletcher is right to argue that ‘narrowing the definition [of rights] would send a message that the government prioritises some of its international human rights obligations over others’ (p 131).  But given the present Act is so lacking in political clout — and public significance — perhaps this would be a worthwhile sacrifice to make for those who want the regime to succeed. While Fletcher disagrees with our suggestion here, I think it signals that we agree on a broader point. As he concludes, ‘attitude is everything’ (p 315). The Human Rights (Parliamentary Scrutiny) Act could be tinkered with in lots of ways, but given it is essentially self-policing, it will not succeed unless it creates some meaningful incentive for parliamentarians to think more carefully about the way in which legislative proposals will affect rights. Andrew Byrnes explores these issues further in his contribution to this forum.

Fletcher does not merely observe this scepticism towards human rights — he also challenges it. He makes the small, but important point that such scepticism seems to be a particular feature of the federal political culture (given sub-national governments have been quite willing to enact Human Rights Acts which do involve the courts). This indicates that it has as much to do with federal politicians’ aversion to international legal norms as human rights per se. Elsewhere, I question whether this undermines the very premises of the regime, or indeed reveals them to be false. Why would a government resistant to rights — and especially, international human rights — incorporate the huge catalogue of rights recognised by those international legal instruments to which Australia is a party into our federal Human Rights Act? Would a government genuinely intent on maintaining control over questions of rights not have taken a more targeted approach?

I think that is also consistent with Fletcher’s conclusions. To return to the way he framed his inquiry, the Human Rights (Parliamentary Scrutiny) Act is best understood as an act of ‘window-dressing’ — an attempt to conceal a deep-seated apathy towards human rights whilst being seen to “do something” — rather than a carefully constructed attempt to better protect rights while avoiding the democratic objections that other models of rights review can raise. As Fletcher puts it, the regime is not merely unique, but ‘uniquely weak’ (p 7). The reader is left with a sense of melancholy, for this is obviously an author who cares a great deal about human rights. While the book may not, therefore, make for uplifting reading, I would certainly recommend it.

Lisa Burton Crawford is a Senior Lecturer in the Faculty of Law, University of New South Wales. 

Suggested Citation: Lisa Burton Crawford, ‘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-lisa-burton-crawford>.