Public servants need to remember their obligations under international human rights treaties, despite many agreements never having been implemented in domestic law, says Professor Gillian Triggs, president of the Australian Human Rights Commission.
“The first step is for public servants to understand Australia is bound internationally by human rights treaties to which we’re a party,” Triggs tells The Mandarin. “We will not really achieve advances in relation to human rights for most people until public servants understand what these obligations are.”
And although there are many examples of treaty obligations being ignored — indefinite asylum seeker detention being the most obvious — Triggs says public servants do tend to be interested in how to incorporate human rights principles into their work. The Australian Public Service Human Rights Network has about 1000 members, mainly in Canberra and at relatively senior levels, and attracts large audiences to its talks on human rights issues.
“They want to know about it,” she says. “When you’re dealing — as you are with the APS — with well-educated people, they are inclined to say, well I want to do my job as best I can, and I want to be informed about the basic standards of law that regulate my behaviour.”
The Australian Public Service Commission is also including many human rights principles as part of the APS Values and Code of Conduct guidance, she notes.
Education is a significant part of the AHRC’s mission. Triggs mentions they’re working with the NSW Department of Family and Communities training staff on disability rights, as well as with the Department of Immigration and Border Protection.
“I’ve personally been involved in training camp superintendents, detention centre superintendents in Nauru, Manus, Christmas Island and the other Australian detention centres. That’s been extremely interesting and has been relatively well received, I’d have to say,” she remarks.
“The other is of course sexual orientation and intersex issues, that many in the public service just aren’t aware of, or can’t identify and don’t know how to respond,” Triggs says. “And I have to say, in honesty when I started this job I didn’t really understand intersex issues and I really needed to try and understand what was happening and start to address it.
“So I’m not suggesting these are obvious things, they’re things that people need to learn about. But the greater asset with the APS is that they are well-educated and they’re very interested in high standards of service to the Australian public.”
‘Teoh remains on the books’
Many of the human rights treaties which Australia’s executive governments have signed onto have never been passed into law by the parliament. This makes difficult the Australian Human Rights Commission’s job to uphold “the indivisibility and universality of human rights” by, among other things, examining whether the government is acting contrary to international obligations.
This means the treaty principles set out and protections offered are more-or-less unenforceable in Australian courts. The AHRC is free to tell the minister that detaining refugee children in poor conditions offshore does not meet the standards of the Convention on the Rights of the Child — one of the treaties yet to be enacted in domestic law — but then the minister is free to ignore that advice.
There are three major exceptions to this — treaties that have been substantially enacted in Australian law: the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Rights of People with Disabilities and the Convention on the Elimination of All Forms of Discrimination Against Women.
“The International Covenant on Civil and Political Rights, the Convention on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and most aspects of the Refugee Convention are not reflected in Australian legislation, and indeed some of them have actually been taken out of pre-existing legislation,” Triggs explains.
“So we’re in a very, very unusual situation in that we’re party to international treaties but we have not implemented them in domestic law. The other problem is that we are the only common law country and one of the very few countries at all anywhere in the world that doesn’t have a bill of rights.
“When public servants carry out their responsibilities they tend not to be concerned about the treaties because they have not been legislated as part of Australian law.”
The main exception to the rule that unincorporated treaties offer no remedy in domestic law is what’s known as the Teoh case. In 1995 the High Court found a “legitimate expectation” could arise from Australia’s membership of an international treaty that public servants would at least consider that treaty when making a decision. In this case Ah Hin Teoh, a Malaysian citizen due to be deported for heroin offences, successfully argued the government did not consider the rights of his seven children in deciding whether to send him back to Malaysia, contrary to the Convention on the Rights of the Child.
While she concedes subsequent decisions have largely ignored the controversial Teoh precedent, leading many to see it as having been all but overturned in favour of the older concept of ensuring natural justice in administrative decision making, Triggs says she often reminds public servants that “Teoh remains on the books”.
Regardless, she wants public servants “at least to be aware of the treaties to which we’re party and the international obligations they entail.”