If I Were Commonwealth Attorney-General, I would Take Australia’s International Legal Obligations Seriously

I would end the farcical situation that has prevailed for decades in Australia in which the executive ratifies all sorts of international agreements, making promises to the world at large to abide by the principles in the agreement and to amend our legislation or administrative practices as required to give effect to those principles, only to disown those promises and fail to deliver when it comes to amending the domestic legal framework.  This happens in all sorts of areas, not only in the human rights area.  However, the government does seem to be able to motivate itself to make the necessary changes in some fields better than in others.  For instance, when the Australia-United States Free Trade Agreement mandated changes to intellectual property rules, among a raft of other measures, the legislature promptly responded with amendments to the Copyright Act and other legislation to implement the treaty commitments. Ever sinceAustraliaratified its first human rights instrument, it has failed to give full effect to the obligation to take whatever legislative or administrative measures might be necessary for the full realisation of the rightsAustraliahas promised to uphold, including a mechanism permitting individuals to complain of a breach and seek a remedy.  Indeed,Australiaremains the only developed country without comprehensive legislative or constitutional protection of human rights.  As Attorney-General, I would push strongly for a constitutionally entrenched system which would require laws to be consistent with human rights and would also establish a cause of action allowing an individual to sue for breach of human rights – effectively a new constitutional writ.  No doubt I would meet some opposition to that model from some of my cabinet colleagues, perhaps on the ground that they doubt a referendum could be successful or perhaps because they fear the model goes too far.  I would like to think I could persuade them to embrace a constitutional model, but some compromise might be inevitable.  The absolute minimum for Australia to comply with its international obligations would be a statutory model like the one recommended by the National Human Rights Consultation, which was rejected by the government as ‘too divisive’.

The exercise of aligning domestic law with international undertakings is broader than just the Bill of Rights question, however.  It requires the legislative framework and the administrative practice in all areas affected by the treaty commitments to be consistent.  In the human rights field, this extends from immigration to social security, policing to the court system, health and education, and virtually every other service provided by the government.  It also extends to services carried out by the states, and it is the responsibility of the Commonwealth to ensure that state services abide by international standards.  That therefore makes it my business as Commonwealth Attorney-General to ensure that service provision by state governments is adequately resourced, especially (but not exclusively) those areas critical to human rights outcomes such as housing, Legal Aid, corrections and human services.

Critics will respond that the disconnect betweenAustralia’s international commitments and domestic law is entirely proper because of the separation of powers between the executive and the legislature and becauseAustraliais a dualist state (meaning that international law does not automatically have domestic effect but requires separate legislation to be passed).  The alignment between international commitment and domestic action that I propose would effectively turn the executive into legislators, they might argue.  That need not be the case.  The executive is entirely capable of liaising with the legislature about changes to domestic law before treaties are ratified.  Indeed, a section of my own Attorney-General’s Department is already tasked with advising the government on the implications for domestic law of proposed treaties.  If it is apparent that parliamentary support will not be forthcoming, then the executive should have second thoughts about making commitments to the international community that it is in no position to deliver.

In fact, the courts already give the executive the benefit of the doubt when it comes to the intention to deliver on its promises.  Courts assume that the executive intends to honour commitments made in treaties, and therefore will interpret legislation in a way that conforms with international obligations in the case of ambiguity.  Courts also assume that it is legitimate for the public to expect government agencies to act in accordance with promises the government has made in treaty form, which gives rise to certain, limited procedural rights in the administrative doctrine of ‘legitimate expectation’.  Assumptions of good intentions are not worth much, though, when the domestic legal reality does not match the international rhetoric.  As Attorney-General, I will initiate an audit of all existing international obligations, particularly human rights obligations on whichAustralia’s implementation record is patchy, to assess the extent to which those obligations have been implemented and identify changes that need to be made.

Taking international obligations seriously does not end with domestic legislation.  It also extends to taking a stand when other governments apply pressure.  Co-operating with foreign police when doing so exposes the suspects to the death penalty, as the Australian Federal Police did in the Bali Nine case, violatesAustralia’s obligations.  Failing to defend the presumption of innocence of Australian citizens, as the Prime Minister did in publicly declaring Julian Assange guilty of an unnamed crime relating to the WikiLeaks saga before any crime had been nominated, let alone charges laid, likewise abdicates responsibility, while the statement that Assange ‘might not be welcome’ back in Australia threatens a violation of the fundamental human right to leave and re-enter one’s own country.  Australia’s recent trigger-happy tendency to cancel passports upon request of foreign law enforcement agencies is also concerning.  As Attorney-General, I would insist that government agents adhere to international human rights obligations in the context of international law enforcement co-operation.

The model of international human rights law assumes a certain coherence – agreement on universal standards at the international level, implemented in detail at the domestic level and backed up by meaningful domestic recourse mechanisms.  That coherence is currently missing inAustralia, where our international commitments are implemented on a hit and miss basis with no comprehensive framework.  As Attorney-General, I would make it my priority to address that disconnect.

Adam McBeth is a Deputy Director of the Castan Centre for Human Rights Law and Senior Lecturer in the Law Faculty at Monash University.