Reform of Australian Government Administration (2009)

Reform of Australian Government Administration

Australian Human Rights Commission
Submission to the Advisory Group on Reform of Australian Government
Administration

November 2009

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Table of Contents

• 1 Introduction
• 2 Summary
• 3 Recommendations
• 4 Respect for human rights should be at the core of public service
• 5 Respect for human rights should be required by a federal Human Rights Act
• 6 Human rights should be incorporated into public sector practice and procedures
  • 6.1 Human rights education for the public sector
  • 6.2 Human rights action plans for federal departments and agencies
  • 6.3 The APS Values
• 7 Conclusion

1 Introduction

1. The Australian Human Rights Commission (the Commission) makes this
   submission to the Advisory Group on Reform of Australian Government
   Administration in response to the discussion paper Reform of Australian
   Government Administration: building the world’s best public service (the discussion paper).

2. The Commission welcomes the consultation regarding reform of Australian
   Government administration. Australia’s national human rights institution,
   the Commission, is proud to be a part of the Australian Public Service.

3. This submission regarding the reform of Australian Government Administration
   is based on the Commission submission to the National Human Rights Consultation
   in June 2009.

2 Summary

4. Respect for human rights is closely aligned with the expectations of the
   public service as articulated in the discussion paper regarding the reform of
   Australian Government administration. Particularly relevant are the first three
   characteristics:

   • having a values-driven culture that retains public trust

   • providing high-quality, forward-looking and creative policy advice

   • delivering high-quality programs and services that put the citizen first.

5. The Commission’s submission to the National Human Rights Consultation,
   observed that a good system of human rights protection involves consideration of
   human rights at all levels, and by all branches of government, with the aim of
   preventing human rights violations.

6. One of the key building blocks of such a system is Australian Government
   decision-makers who respect human rights when implementing laws, developing
   policy and delivering public services.

7. There are a range of measures that could be adopted that would build a
   culture of respect for human rights within the public sector. The Australian
   Government should have in place processes to respect human rights when
   developing policy, making decisions and delivering services. This would be most
   easily achieved through the adoption of a national Human Rights Act. However,
   measures improving the knowledge and consideration of human rights could be
   adopted whether or not Australia enacts a Human Rights Act.

8. Reform of Australian Government administration would be enhanced by specific
   consideration of human rights in both law and policy making and the delivery of
   services.

9. In this submission, the Commission argues that:

   • respect for human rights should be at the core of public service

   • human rights should be incorporated into public sector practices and
     procedures.

3 Recommendations

10. Recommendation 1: The Australian Public Service Values should
    articulate the responsibility of the public sector to respect human rights.

11. Recommendation 2: All federal government agencies should take steps
    to ensure they respect human rights by:

    • engaging in human rights training and education programs

    • preparing internal human rights action plans.

4 Respect for human
rights should be at the core of public service

12. The discussion paper argues that an essential ingredient for high
    performance as a public service is:

    the paramount principle of
    focussing on citizens in the formulation of policy advice. This can mean making
    sure that citizens’ or clients’ experiences of engaging with the
    program, service or regulation resulting from the policy intervention is at the
    forefront of the policy maker’s mind. This will involve, where possible,
    actively engaging citizens and stakeholders in the policy formulation process so
    that their perspectives and ideas are taken into account. In many cases, it will
    involve weighing up the benefits for one group of citizens against costs imposed
    on another group.^[1]

13. The Commission agrees that a focus on citizens is a key element of a high
    performing public service. The Commission believes that the human rights of
    citizens and clients should be a key consideration in policy development.

14. Public authorities such as Centrelink and Medicare make many day-to-day
    decisions that impact on people’s lives.

15. The Commission believes that imposing obligations on public authorities to
    consider and respect human rights would have a strong and positive impact on the
    development of policy and the delivery of services. Public authorities would
    become more conscious of the impact of their decisions might have on the rights
    of individuals and of their responsibility to ensure that these rights are
    respected. This greater awareness and understanding could prevent human rights
    breaches from occurring.

16. The discussion paper also argues that the public service ‘needs to be
    capable of effectively interacting with citizens with unique or special needs or
    whose circumstances do not fit what might be considered the
    norm’.^[2] A human rights
    framework for decision-making should improve public service delivery by leading
    to more individualised solutions. This in turn should reduce the level of
    complaints received and increase the effectiveness of public services.

17. The report of the National Human Rights Consultation (the Brennan report),
    released on 8 October 2009, reported ‘strong support for the development
    of a human rights culture in the public sector’ and that ‘it was
    felt that this would lead to better integration of human rights in the
    development of legislation of policy, in administrative decision making, and in
    service delivery’.^[3]

18. The Brennan report stated that ‘in the Committees’ view,
    regardless of whether a federal Human Rights Act is introduced, measures will be
    required to better incorporate human rights considerations in the public
    sector’s practices and
    procedures’.^[4] The Brennan
    report considered that public servants should be required to take human rights
    into account when they make
    decisions.^[5]

19. Measures that the Brennan report recommended included:

    • incorporating human rights compliance in the Australian Public Service
      Values and Code of Conduct

    • requiring federal government departments and agencies to develop human
      rights action plans, and report on human rights compliance in their annual
      reports.^[6]

5 Respect for human
rights should be required by a federal Human Rights Act

20. The Commission believes that the most appropriate means of ensuring respect
    for human rights is through a Human Rights Act that would set out the human
    rights that policy-makers and decision-makers should consider.

21. To ensure that public authorities respect human rights in their actions and
    properly consider human rights when making decisions, a Human Rights Act could
    make it unlawful for a public authority to:

    • act in a way that is incompatible with human rights

    • fail to give proper consideration to human rights in decision-making.

22. However, regardless of whether or not Australia adopts a federal Human
    Rights Act, a range of steps could be taken to ensure that the public service
    more fully considers the impact of human rights on the lives of people whose
    daily lives are affected by government decision-making. These measures are
    outlined in the following sections.

6 Human rights should be
incorporated into public sector practice and procedures

23. The Commission believes that the following steps would ensure that the
    public sector takes human rights into account more explicitly:

    • better education of the public sector about human rights (and of their
      obligations under a Human Rights Act if adopted)

    • the development of human rights action plans by federal government
      departments and agencies

    • integration of respect for human rights into public sector values and codes
      of conduct.

6.1 Human rights
education for the public sector

24. Public servants, parliamentarians and their staff, courts and tribunals, the
    legal profession, and any private bodies which perform public functions on
    behalf of the government should receive specialised human rights education and
    training, especially if Australia adopts a federal Human Rights Act.

25. The Brennan report recommended that education be the highest priority for
    improving and promoting human rights in
    Australia.^[7] In particular, it noted
    that there is strong public support for better education of public officials who
    exercise powers of investigation, arrest and detention and perform other duties
    that are likely to adversely affect the rights and freedoms of ordinary
    Australians. It also recommended that the Australian Government develop a
    national plan to implement a comprehensive framework, supported by specific
    programs of education in human rights and responsibilities, including in the
    public sector.^[8]

26. A good example of public sector human rights education is provided in
    Victoria, where the newly-established Human Rights Unit of the Department of
    Justice developed and delivered a whole-of-government human rights education
    strategy during 2007, including:

    • Legal and Legislative Policy Officer training delivered to over 500
      participants

    • the Human Rights Implementation Program, a train-the-trainer course
      delivered to over 300 service delivery staff across government.

27. These whole-of-government initiatives were complemented by initiatives at
    the departmental level, including:

    • training courses for staff

    • changes to induction and performance management systems

    • online learning modules and other internal communication strategies such as
      newsletters, displays and a Human Rights Week.

28. The Commission supports the implementation of similar measures at a federal
    level.

6.2 Human rights
action plans for federal departments and agencies

29. Public sector service delivery would be enhanced by the development of
    effective human rights action plans.

30. The Brennan report noted strong support for the development of human rights
    action plans. The Committee supported measures that involve greater human rights
    planning and compliance reporting by the federal public sector and suggested
    that periodic human rights audits of specific agencies and their practices would
    provide a useful measure for ensuring greater transparency and public
    accountability.^[9]

31. Human rights action plans should specify how each department or agency
    intends to embed the consideration of human rights into their policies,
    procedures and practice. Human rights action plans could become the assessment
    and reporting framework for potential audits or annual reports on compliance
    with human rights.

6.3 The APS
Values

32. The APS Values currently incorporate some human rights principles. However,
    these are limited in effect to internal procedures, for example in the following
    values:

    • the APS provides a workplace that is free from discrimination and recognises
      and utilise the diversity of the Australian community it serves

    • the APS promotes equity in
      employment.^[10]

33. The Commission believes that the responsibility of public servants to
    respect and promote human rights in the performance of their duties should be
    articulated in the APS Values. This would greatly assist in integrating respect
    for human rights into the culture of the Australian public service.

7 Conclusion

34. The Commission believes that Australia should adopt a federal Human Rights
    Act that sets out the responsibility of the public sector to respect human
    rights. However, regardless of whether or not Australia adopts a Human Rights
    Act, there are a range of measures that could be taken to enhance public sector
    consideration of human rights. The Commission commends these measures to this
    consultation regarding the reform of Australian Government administration.

^[1] Australian Government,
‘Reform of Australian Government Administration: Building the
world’s best public service’, October 2009,
p20.

^[2] Australian Government,
‘Reform of Australian Government Administration: Building the
world’s best public service’, October 2009,
p28.

^[3] Commonwealth of Australia, National Human Rights Consultation Report, September 2009, p 180.

^[4] Commonwealth of Australia, National Human Rights Consultation Report, September 2009, p
180.

^[5] Commonwealth of Australia, National Human Rights Consultation Report, September 2009, pp 180 –
187.

^[6] Commonwealth of Australia, National Human Rights Consultation Report, September 2009, pp
359.

^[7] Commonwealth of Australia, National Human Rights Consultation Report, September 2009, p
353.

^[8] Commonwealth of Australia, National Human Rights Consultation Report, September 2009, p
354.

^[9] Commonwealth of Australia, National Human Rights Consultation Report, September 2009, p
185.

^[10] Public Service Act
1999 (Cth), s 10.