President speech: ‘How could a Human Rights Act lead to better Government?’

‘How could a Human Rights Act lead to better
Government?’

The Hon Catherine Branson QC

President, Australian Human Rights Commission

Australian Public
Service Commission’s Senior Executive Service (SES) Breakfast

The Boat by the Lake, Grevillea Park, Menindee Drive, Barton ACT

28 April 2009

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INTRODUCTION

Good morning.

I would like to begin by acknowledging the traditional owners of the land on
which we meet, the Ngunnawal peoples, and pay my respect to their elders past
and present.

I am delighted to be with you at this SES Breakfast and to be able to speak
to you about how a Human Rights Act could lead to better government. But before
turning to that topic there are two introductory matters that I would like to
address briefly.

The first will, I hope, give an indication of the perspective that I bring to
this morning’s topic. Some of you will know that for 14 years I was a
member of the judicial branch of government – I was a judge of the Federal
Court. What many of you will not know is that for virtually the equivalent
amount of time I have been a member of the executive branch of government
– most of that time as a member of the public service of South Australia
but now, of course, as President of the Australian Human Rights Commission. In
the circumstances it is probably not surprising that I am interested in
government decision-making. My interest started when I joined the South
Australian public service way back in, I think, 1976. I was a member of the
committee, chaired by Bruce Guerin, which in the early 1980s reviewed public
service management in SA. For a short period of time I was the senior policy
adviser to the SA Attorney-General. Later as Permanent Head of the
Attorney-General’s Department of SA – a position that I filled
concurrently with the position of Crown Solicitor for SA – I was directly
involved in government decision-making at a senior level. As a Federal Court
judge I was involved in the judicial review of government decision-making at all
levels. Again as President of the Australian Human Rights Commission I am
reviewing government decision-making as part of the complaint handling function
of the Commission.

These experiences have persuaded me that Australians are, generally speaking,
well served by their public services. But that doesn’t mean that we cannot
do better – I think, and I suspect that most of you agree, that we can do
better.

The second matter that I want to touch on is the Australian Public
Service’s reaction to an earlier instance of significant reform that
touched on the way that it operated.

At about the time that I joined the SA public service Commonwealth
administrative law was comprehensively overhauled. The Administrative Appeals
Tribunal was created to provide merits review of decisions made under
Commonwealth enactments. The Administrative Decisions (Judicial Review) Act was
passed to streamline judicial review of such decisions – including
decisions of the AAT. There were other aspects of the reform package including
the creation of the Federal Court and the Office of the Commonwealth Ombudsman.
The reason why I raise these reforms is because at the time that they were
introduced they were, as I understand it, not welcomed by the Commonwealth
public service. Not surprisingly the change that they represented was felt to be
threatening. Most of us are threatened by change. But who among this audience
would now want to abolish the AAT or repeal the ADJR Act? We are proud that
these initiatives continue to be seen as world best practice in administrative
law. Other countries seek to emulate them.

My point is, of course, that although the change that a Human Rights Act
would bring to the way in which we do our work might at first be felt to be a
threat, this reaction is likely to pass. As the APSC’s Delivering
Performance and Accountability Report released earlier this year stated:

A flexible and adaptable public service needs to be able to devise new ways
of tackling difficult policy problems and delivering services, and be prepared
to experiment without always being sure of what their likely effects will be or
how well they might work.^[1]

AN AUSTRALIAN HUMAN RIGHTS ACT?

In a way, we have been here before; the debate about whether Australia should
adopt a charter or bill of rights is one that we have had before. I think that
this time the time is right for us to acknowledge that while Australia is a
great country for most of us most of the time, we can do better. Our nation lags
behind other western liberal democracies in the human rights protections that we
afford people in Australia. I am not persuaded that we alone amongst comparable
democracies have no need for comprehensive human rights protections. And I am
not persuaded that the global economic crisis is a reason not to address this
need. Indeed the very real possibility that attempts to address the economic
crisis may not respect the human rights of the most vulnerable in our society
might be thought to make it more, rather than less, important that we do so.

As you would be well aware, the National Human Rights Consultation is well
underway. Father Frank Brennan and his Committee have been on the road
consulting communities Australia-wide, from Ipswich and Rockhampton to Melbourne
and Geelong to Alice Springs and Katherine. The Committee is seeking to hear
from as many Australians as possible about how they think human rights should be
protected in Australia. It has been asked to report on the options for improving
rights protection in Australia.

The Australian Human Rights Commission believes that a number of steps should
be taken to protect human rights in Australia. The first and most important of
those steps, we believe, is the enactment of an Australian Human Rights Act. The
Human Rights Act that we envisage would first identify the human rights to be
protected. By doing so it would incorporate into Australian domestic law some,
perhaps all, of the rights that Australia has recognised internationally by
ratifying the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights and other human
rights treaties. By way of examples, it might identify the right to life, the
right not be tortured or treated in an inhuman or degrading way, the right to a
fair trial, the right to respect for private and family life, the right to
freedom of expression and the right to education.

The Human Rights Act that we envisage would require ‘public
authorities’ to have regard to these rights when exercising their
functions. This requirement might extend to private entities performing public
functions on behalf of the government.

The kind of Human Rights Act that we envisage already exists in the ACT,
Victoria and the United Kingdom. Based on what we have seen there, I believe
that a similar law for the whole of Australia would benefit everyone.

Today, I wish to look more closely at some of the features that a Human
Rights Act would have and how they might impact on governance and
decision-making in Australia.

WHAT WILL A HUMAN RIGHTS ACT MEAN FOR THE PUBLIC SERVICE?

I am conscious that many people in the public service have concerns about how
the introduction of an Australian Human Rights Act might affect our current
practices, the workloads of our staff, and our budgets. We all have pressing
priorities and deadlines to meet. Most of us feel that we are and will continue
to face difficult economic times. As the head of an agency that is grappling
with reducing resources and increasing demands on our services, I understand
these concerns well.

Based on what has happened in the UK, Victoria and the ACT, I believe that
likely effects of a Human Right Act will, for the most part, be positive.

A Human Rights Act should mean better government because it will create a
positive duty on the part of all branches and levels of government – a
positive duty to act compatibly with human rights. The rationale behind such a
duty is to put into practise the principles of fairness, respect and equality
– principles which already underpin the ethos of public service.

This means that a Human Rights Act should not create new burdens but rather
should enhance the work that we already do. Taking a human rights approach to
our work will mean refining the process of decision-making rather than radically
overhauling our existing procedures.

Perhaps this will become more evident as I try to illustrate what this duty
to act compatibly with human rights would mean for each of the executive,
legislature and judiciary. By way of overview, the duty would mean -

• that the executive would be required to take human rights into account when
  developing policies and making decisions except to that the law of Australia
  required it to do otherwise;
• that the legislature would be required to scrutinise all proposed laws for
  compliance with human rights; and
• that the judiciary would be required to interpret and apply all laws
  compatibly with human rights unless to do so would not be consistent with the
  purpose of the legislation.
  

(a) Informing public decision-making

Let me address first in more detail what a human rights approach would mean
for the executive. A Human Rights Act would require the executive, and other
public authorities, to consider the rights protected under the Act in the course
of policy-making and decision-making. In other words, the Act would, to use the
language of a UK commentator, encourage us to put ‘the user of public
services at the heart of their design and
delivery’.^[2]

This is surely a healthy adjunct to our democratic processes. Requiring the
executive to consider whether intrusions into human rights are justified, and if
so, why, will produce a government which is both more conscious of the rights of
all people in Australia and more accountable to them. This might be aided by
further requiring, as has been done elsewhere, public authorities to report
annually on compliance with the Human Rights Act and to prepare internal Human
Rights Action Plans.

It seems to me that a ‘culture of justification’ – a
culture in which every exercise of power that interferes with our fundamental
freedoms is publicly and transparently justified – would only enhance the
operation of the public service of which we can, with justification, generally
feel proud.^[3] That such a culture
does not universally exist became apparent to me during my time as a Federal
Court judge.

To provide an example perhaps close to home (I hope not too close) some of
you may remember that I presided over a case in which public servants were
prevented from taking leave to which they were prima facie entitled
because they planned to use the leave to attend union-organised events intended
to demonstrate opposition to the then proposed Work Choices legislation. It
became clear during the evidence given in this case that even some experienced
public servants had little understanding of individual rights of freedom of
expression and freedom of association – and, perhaps more importantly, the
relationship of these rights to the statutory requirement for the public service
to be apolitical in character. A Human Rights Act should change this. In
particular, a Human Rights Act should engender a ‘culture of
justification’ such that decision-makers would need to think through how
their decisions might impact on the rights of individuals, whether members of
the public service or members of the public generally.

(b) Pre-legislative scrutiny process

Turning now to how a Human Rights Act might impact on the legislature. The
Act would almost certainly introduce a pre-legislative scrutiny process, whereby
the legislature would be required to scrutinise all proposed laws for compliance
with human rights. This scrutiny would probably involve two elements –

First, any bill presented to Parliament would be accompanied by a
‘human rights impact statement’ which gave reasoned consideration to
whether the bill was compatible with the rights protected by the Human Rights
Act.

Secondly, a ‘human rights committee’ of the Parliament would
examine the ‘human rights impact statement’ and itself report to the
Parliament on the human rights implications of the bill.

Both the UK and Victorian human rights committees are comprised of members
from all parties and from both Houses of Parliament. The committee has proved to
be an important mechanism whereby the legislature is informed about the human
rights aspects of proposed laws.

Finally, a Human Rights Act would be likely to establish a procedure whereby
the Parliament was advised, probably by the Attorney-General, of significant
court decisions in which it had been identified that a law of the Parliament
could not be interpreted in a way that respected the rights protected by the
Human Rights Act. The Parliament would not be required to amend the law but
would be required to give some response within, say, 6 months, to the
court’s decision. The response might be an explanation of why the
Government was satisfied that the public interest required that a law that did
not fully respect human rights remain on the statute books.

(c) Analogous to Charter of Public Service in a Culturally Diverse
Society

While this may all sound very novel and foreign, it is not; the incorporation
of human rights thinking is likely to complement and reinforce what our public
service is already doing. This is because the principles of public service
reform – focusing on service users and providing the right service –
are underpinned by human rights values though they are not necessarily described
in those terms. Human rights advocates and public service reformers agree that
greater personalisation of public service means better public service, leading
to better policy outcomes.

Since 1998, the Australian Public Service has had in place the Charter of
Public Service in a Culturally Diverse
Society.^[4] The Charter recognises
that the delivery of services that are relevant and appropriate to different
groups of people is ‘the foundation upon which to improve effectiveness
and efficiency’.^[5]

[I]n the case of the public sector, effectiveness is a matter of providing
good service to every customer and ensuring that government serves all citizens.
Efficiency is a matter of making sure that resources are properly used:
providing the right service, the right way the first time to meet the precise
needs of each and every client.^[6]

An Australian Human Rights Act would similarly be about ensuring that
government properly considers the needs of all members of Australia’s
increasingly diverse population. This means not applying blanket policies
without proper regard to the particular circumstances of an individual user of
public services.

The Victorian Charter of Human Rights and Responsibilities has been
instrumental in challenging blanket policies and bringing about decision-making
which prioritises the person rather the policy for its own sake. For example,
the Charter was used to challenge a government policy that denied a 13-year-old
boy with Asperger Syndrome disability support services because the Victorian
Department of Human Services did not consider Asperger Syndrome and other Autism
Spectrum Disorders to be a ‘disability’. The boy’s mother
applied to the Victorian Civil and Administrative Tribunal for a review of the
decision, arguing for an inclusive and contextual interpretation of
‘disability’, in light of rights in the Charter including the right
to privacy, the right to protection of families and children, and the right to
equality before the law. This prompted a decision by the Victorian Government to
acknowledge Autism Spectrum Disorders (including Asperger Syndrome) as a
disability under the Disability Act, which meant that Victorians with autism
were thereafter entitled to disability
assistance.^[7]

OTHER BENEFITS

In the longer term, the flow-on benefits of a Human Rights Act for our work
practices should outweigh any burden which might be associated with the positive
duty to act compatibility with human rights.

A Human Rights Act should make our jobs easier, for several reasons.

(a) Clarity

First, a pre-legislative scrutiny process would require the Parliament to
give more careful consideration to how proposed laws might impact on the
different classes of persons to whom the laws might apply. This would not only
reduce the number of occasions on which courts are left with little or no
guidance as to the actual intention of the legislature, it would also assist
members of the public service required to administer the laws.

(b) Problem-solving

Secondly, as the UK experience has shown, ‘[h]uman rights principles
[enshrined in the Act] can help decision-makers and others see seemingly
intractable problems in a new
light.’^[8] This is because a
Human Rights Act would define substantive human rights and provide a framework
for assessing whether a limitation upon these rights is reasonable. This
framework could be used to analyse, understand and ultimately resolve issues
which, at first blush, seemed to be
intractable.^[9]

In a UK case study, an 89-year-old woman living in a London nursing home was
perceived by staff to be very difficult, particularly because she shouted
continuously in the mornings. A consultant geriatrician tried to understand why
her behaviour was so hostile but found it particularly challenging because the
woman suffered from dementia and found it difficult to talk about her state of
mind. The consultant made contact with the woman’s daughter and discovered
that the woman had been orphaned early in life, and looked after all her
siblings and later her own children. In addition, she worked long hours as a
cleaner. Her many responsibilities meant that she maintained a life-long routine
of rising at 5 am each day. This explained why she became so agitated in the
mornings – the woman was being left in bed until 11 am each day. The
consultant explained to staff that in order to deliver services in a manner
consistent with human rights, they needed to take the woman’s individual
needs into account, which meant respecting her preferred routine as much as
possible, in accordance with her right to respect for private life. From then
on, the woman was helped out of bed at 5 am each morning, fed breakfast in her
chair, toileted and left to enjoy the rest of her morning. Her shouting and
difficult behaviour ceased.^[10]

(c) Expertise

Thirdly, by integrating a clear human rights framework into the policy-making
and legislative process, a Human Rights Act would enable the entire Australian
Public Service to develop expertise in human rights and ensure the application
of that expertise when it is most
needed.^[11] In the context of the UK Human Rights Act, the Chairman of the UK Audit Commission has
observed:

Time and again we observe in those public bodies, fast increasing in number,
which have adopted and embedded human rights principles in their everyday
operations, that they provide much higher levels of service to the
public.^[12]

SIGNIFICANCE FOR US IN OUR PRIVATE CAPACITIES

I’ve confined discussion thus far to how a Human Rights Act will affect
our work but it’s important to note that a Human Rights Act will also be a
tool that we can use in our private capacities, as members of the community and
as users of public services ourselves. If you have a child with special
education needs, an elderly parent living in an aged care home or a family
member experiencing mental illness, you too might find that, equipped with the
language of the Act, you can better negotiate your way to improved services for
your loved one.

Here in the ACT, Australia’s first Human Rights Act has produced many
positive outcomes. It has been used to audit and improve adult correction
facilities such as Belconnen Remand Centre and Symonston Temporary Remand
Centre. After an audit of the former Quamby Juvenile Detention Centre, the ACT
Government reopened it as an adult facility, to address overcrowding and
potentially inhumane conditions at the Belconnen and Symonston
centres.^[13] The lessons learnt from
these audits have been applied to the new Bimberi Youth Justice Centre and the
new Alexander Maconochie Centre,^[14] the first prison in the country to be designed and built in line with human
rights principles.^[15]

The Act also allowed the ACT Human Rights Commission to conduct a review of
the psychiatric services unit at Canberra
Hospital.^[16]

The Act has also made a difference to people’s day-to-day lives. For
example, a woman and her children were at risk of being evicted from their
public housing property after her mother’s death because the lease was in
her mother’s name. The children had always lived in the house and had
close contacts with the local community, school and nearby friends. The mother
appealed to Housing ACT on the basis of her right to protection of family life,
which is contained in the Act, and she was given a lease over the
property.^[17]

BENEFITS FELT ELSEWHERE

The aggregate result of the benefits I have outlined should be a higher
standard of public service delivery. Public authorities would necessarily become
more conscious of the need to respect human rights when making decisions. Human
rights would become more widely and clearly understood, and a culture of human
rights would emerge over time. This is happening in the UK, the ACT and
Victoria.

Speaking about the impact of Victoria’s Charter of Human Rights and
Responsibilities, the Victorian Deputy Premier and Attorney-General Rob
Hulls has said:

Not only is the human rights dialogue permeating all levels of Government,
there has been a change in culture so that when laws are developed, decisions
made or services delivered, they are done with the human rights and
responsibilities of every Victorian in
mind.^[18]

This change in culture is evident at the Victorian Department of Human
Services. The Secretary of the Department, Fran Thorn, has said that the Charter
is becoming part of the way the Department conducts its business, and the
Department now knows more about what human rights means for its business than it
did 12 or 18 months ago. The Charter has also been the driver of the
Department’s review of the Mental Health Act. Each year, around 9,000
patients in Victoria receive involuntary treatment for a serious mental illness
under the Act. Informed by the Charter, the Department is looking at encouraging
participation by the patient in the decision-making about their treatment and
care by obtaining an advance statement of their wishes and
preferences.^[19]

When delivering services with human rights in mind, we should also achieve
greater efficiency. This is because a duty to act compatibly with human rights
should mean better targeted service delivery from the outset and therefore less
need for subsequent redress.

OTHER MEASURES

I indicated that the Australian Human Rights Commission sees a Human Rights
Act for Australia as only one of the steps that we should take as a nation to
improve protection of our human rights. Another important step would be to
address the low level of public consciousness and understanding of human rights
in this country. The United Nations Decade for Human Rights Education extended
from 1995-2004. The World Programme for Human Rights Education has been ongoing
since 2005. Yet the impact of these UN initiatives is barely apparent here. I
am hopeful that the National Human Rights Consultation will lead to a
recommendation for Australia to do much more by way of education, including
class-room education, to enhance human rights understanding in this country.

Another positive outcome of the Consultation, in my view, would be a
recommendation for improved human rights training for all administrative
decision-makers in this country and, indeed, for all legislators and members of
the judiciary. Yet another would be to require human rights impact statements to
accompany Cabinet proposals and all other major policy initiatives.

Of course, I appreciate that by identifying steps other than the enactment of
a Human Rights Act that might enhance human rights protection in this country I
raise the possibility of those steps being implemented at the expense of a Human
Rights Act. Even the steps of requiring bills to be accompanied by a human
rights impact statement and of establishing a human rights standing committee of
the Parliament could be undertaken without a Human Rights Act being enacted. And
if they were, they would be better than nothing. However, experience elsewhere
is that measures of this kind only work as well as might be hoped when backed by
a Human Rights Act.

SUMMARY

Most of us are pleased that we live in Australia, but this is not to say that
we cannot make it an ever better place in which to live. As I have mentioned, we
have an excellent public service, but this does not mean that we can’t
make it better internationally. We like to remember the role that Dr Evatt, and
also Jessie Street, played in the early days of the UN and in particular their
role in the drafting of the UN Charter and the Universal Declaration of Human
Rights. During the course of the last year when the world celebrated the
60^th anniversary of the Universal Charter, we felt proud that
Australia was President of the General Assembly when that Declaration was
adopted by the international community. Should the National Consultation
recommend, as I hope that it will, a Human Rights Act for Australia, let us
embrace the prospect of change. An Australian Human Rights Act would not give
rise to any rights to which Australia is not already committed in the
international arena. It would be good for our country, I suggest, if we were now
to bring home the rights that Australia was influential in having included in
the Universal Declaration over 60 years ago.

 

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^[1] Australian Public Service
Commission, Delivering Performance and Accountability (2009), p
2.

^[2] F Butler, Improving
Public Services: Using a Human Rights Approach, Report of the Department for
Constitutional Affairs from IPPR Trading Ltd, June 2005, p
10.

^[3] Murray Hunt, Legal Advisor
to the UK Joint Standing Committee on Human Rights, ‘The UK Human Rights
Act as a ‘parliamentary model’ of rights protection: lessons for
Australia’, Seminar at the Australian Human Rights Commission, 17 February
2009.

^[4] Department of Immigration
and Multicultural Affairs, Charter of Public Service in a Culturally Diverse
Society (1998).

^[5] M Kalantis
and B Cope, ‘The charter of public service in a culturally diverse
society, Australian Government’, New Learning, http://newlearningonline.com/new-learning/chapters/chapter-4-learning-civics/civic-pluralism-new-learning/page-5/ (viewed 17 March 2009).

^[6] As
above.

^[7] Human Rights Law
Resource Centre, HRLRC Bulletin, Volume 33, January 2009, p 27. At http://www.hrlrc.org.au/html/s02_article/default.asp?nav_top_id=59&nav_cat_id=138 (viewed 25 March 2009).

^[8] British
Institute of Human Rights, The Human Rights Act - Changing Lives (2^nd ed., 2008), p 5. At http://www.bihr.org.uk/sites/default/files/The%20Human%20Rights%20Act%20-%20Changing%20Lives.pdf (viewed 13 March 2009).

^[9] Victorian Equal Opportunity and Human Rights Commission, First steps forward:
the 2007 Report on the Operation of the Charter of Human Rights and
Responsibilities (2008), p
6.

^[10] British Institute of
Human Rights, The Human Rights Act - Changing Lives (2^nd ed.,
2008), p 21. At http://www.bihr.org.uk/sites/default/files/The%20Human%20Rights%20Act%20-%20Changing%20Lives.pdf (viewed 23 March 2009).

^[11] Victorian Equal Opportunity and Human Rights Commission, First steps forward:
the 2007 Report on the Operation of the Charter of Human Rights and
Responsibilities (2008), p
6.

^[12] J Strachan, Human
Rights – Who Needs Them? Using Human Rights in the
Voluntary

Sector, Speech at the launch of the Institute for Public
Policy Research, British Academy, 10 December 2004. At http://www.ippr.org.uk/uploadedFiles/research/events/Social_Policy/James%20Strachan.pdf (viewed 13 March 2009).

^[13] ACT
Human Rights and Discrimination Commissioner, Dr Helen Watchirs, ‘At last
powers that be want to hear about your rights’, The Canberra Times,
31 March 2009.

^[14] As
above.

^[15] ACT Human Rights
Commission, ‘Canberrans views sought on National Human Rights laws’,
Media Release, 27 March
2009.

^[16] ACT Human Rights and
Discrimination Commissioner, Dr Helen Watchirs, ‘At last powers that be
want to hear about your rights’, The Canberra Times, 31 March
2009.

^[17] As
above.

^[18] Deputy Premier and
Attorney-General of Victoria, Rob Hulls MP, Official Opening Address given at
the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) Conference,
Melbourne, 16 March 2009.

^[19] Secretary Fran Thorn, Department of Human Services, The Charter of Human
Rights and Responsibilities, Presentation given at the Victorian Equal
Opportunity and Human Rights Commission (VEOHRC) Conference, Melbourne, 16 March
2009.