Adam Fletcher - Australias Human Rights Scrutiny Regime: Democratic Masterstroke or Mere Window Dressing?

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Australias Human Rights Scrutiny Regime

Australias Human Rights Scrutiny Regime

Democratic Masterstroke or Mere Window Dressing?

Adam Fletcher

MELBOURNE UNIVERSITY PUBLISHING

An imprint of Melbourne University Publishing Limited

Level 1, 715 Swanston St, Carlton, Victoria 3053, Australia

www.mup.com.au

First published 2018

Text Adam Fletcher 2018

Design and typography Melbourne University Publishing Limited, 2018

This book is copyright. Apart from any use permitted under the Copyright Act 1968 and subsequent amendments, no part may be reproduced, stored in a retrieval system or transmitted by any means or process whatsoever without the prior written permission of the publishers.

Every attempt has been made to locate the copyright holders for material quoted in this book. Any person or organisation that may have been overlooked or misattributed may contact the publisher.

Text design by Phil Campbell

Cover design by Phil Campbell

Typeset by J&M Typesetting

Printed in Australia by OPUS Group

9780522874112 (paperback)

9780522874105 (hardback)

9780522874129 (ebook)

Contents

Acknowledgements

I would like to thank my supervisors Sarah Joseph and Julie Debeljak for the valuable time and feedback they contributed to the doctoral research which formed the basis for this book. They, along with many others in the Faculty of Law at Monash University, welcomed an apprehensive outsider to academia and provided the encouragement I needed to complete my work. My research was supported by an Australian Government Research Training Program Scholarship.

I would also like to thank former Senator Penny Wright and former MP The Hon Philip Ruddock, as well as members of the Australian Public Service, who set aside time for the interviews which were crucial to my understanding of the parliamentary human rights scrutiny regime.

I am very grateful to my wife Ella Jungerth and all of my family for their patience and support.

Finally, I would like to thank Rhonda de Kretser, Janina Boughey, Anita Mackay and Vanessa Johnston for the vital task of proofreading, as well as my editor Vesna Rapajic and those at Melbourne University Publishing responsible for helping me to communicate my research through the beautifully presented volume you are holding.

Adam Fletcher

23 April 2018

Abbreviations

AAT	Administrative Appeals Tribunal
ABC	Australian Broadcasting Corporation
ABS	Australian Bureau of Statistics
ACOSS	Australian Council of Social Service
ACT	Australian Capital Territory
ADJR Act	Administrative Decisions (Judicial Review) Act 1977 (Cth)
AEC	Australian Electoral Commission
AGD	Attorney-Generals Department (Commonwealth)
AGS	Australian Government Solicitor
AHRC	Australian Human Rights Commission
ALP	Australian Labor Party
ANU	Australian National University
APS	Australian Public Service
APSC	Australian Public Service Commissioner
ASIC	Australian Securities and Investments Commission
ATO	Australian Tax Office
CAT	Committee against Torture (UN)
CEDAW	Convention on the Elimination of All Forms of Discrimination against Women (UN)
CERD	Convention on the Elimination of All Forms of Racial Discrimination (UN)
CESCR	Committee on Economic, Social and Cultural Rights (UN)
CRC	Convention on the Rights of the Child (UN)
CRPD	Convention on the Rights of Persons with Disabilities (UN)
Cth	Commonwealth of Australia
DPP	Director of Public Prosecutions
ECHR	European Convention on Human Rights
ECtHR	European Court of Human Rights
EM	Explanatory Memorandum
GC	General Comment (by UN committee)
GDP	Gross Domestic Product
HRA	Human Rights Act 2004 (ACT)
HRC	Human Rights Committee (UN)
ICCPR	International Covenant on Civil and Political Rights (UN)
ICESCR	International Covenant on Economic, Social and Cultural Rights (UN)
IGIS	Inspector-General of Intelligence and Security
IHRL	International Human Rights Law
INSLM	Independent National Security Legislation Monitor
JACS	Justice and Community Safety (ACT Committee)
JCHR	Joint Committee on Human Rights (Australian Parliament)
JCIS	Joint Committee on Intelligence and Security (Australian Parliament)
JSCOT	Joint Standing Committee on Treaties (Australian Parliament)
MP	Member of Parliament
NGO	Non-Governmental Organisation
NHRI	National Human Rights Institution
OECD	Organization for Economic Co-operation and Development
OHCHR	Office of the High Commissioner for Human Rights (UN)
RRT	Refugee Review Tribunal
RIS	Regulation Impact Statement
SARC	Scrutiny of Acts and Regulations Committee (Victorian Parliament)
SoC	Statement of Compatibility (with Human Rights)
NDIS	National Disability Insurance Scheme
NSW	New South Wales
NT	Northern Territory
Qld	Queensland
RIS	Regulatory Impact Statement
SA	South Australia
UN	United Nations
US	United States
Tas	Tasmania
TPV	Temporary Protection Visa
UK JCHR	Joint Committee on Human Rights (UK Parliament)
UNCAT	Convention against Torture (UN)
UNGA	General Assembly (UN)
VEOHRC	Victorian Equal Opportunity and Human Rights Commission
Vic	Victoria

Preface

In late 2012 I was a research fellow at the Castan Centre for Human Rights Law at Monash University. I had just finished working on a major project on justice reinvestment for the Commonwealth Government, and was about to embark on another relating to child employment laws. However, in the context of cutbacks in the lead-up to the 2013 Budget, funding for the project was withdrawn.

I had previously worked at the Attorney-Generals Department in Canberraspecifically in the International Human Rights Law section. I had also worked in Geneva, where I had the chance to observe Australias interactions with the United Nations human rights oversight mechanisms first hand. Australias implementation of its international human rights obligations is a theme to which I find myself drawn, and the newly-minted parliamentary human rights scrutiny regime presented me with an opportunity for another long-term research project.

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