Perspectives on Fairness
Commission – General
ANZOA meeting
Meeting of the Minds
Emeritus Professor Rosalind Croucher AM
President, Australian Human Rights Commission
Acknowledgement
I would like to begin my presentation by acknowledging the traditional custodians of the land where I am delivering my presentation today, the Gadigal people of the Eora nation, and pay my respects to the elders, past, present and emerging.
I would like to thank Janine Young, Energy & Water Ombudsman, NSW and current Chair of ANZOA, for the kind invitation to speak.
Perspectives on fairness
When I was invited to do this presentation as one of two ‘external’ speakers, I was really wondering what perspective I could bring to such a learned group drawn from industry-based, parliamentary and other statutory Ombudsman offices.
We all have our personal perspectives on fairness—drawn from our many varied personal experiences that have brought us into the roles we now have. And we have our institutional perspectives. And in this latter aspect, in some respects there is a ‘yours’ and ‘mine’ when it comes to our statutory mandates.
Janine’s letter explained that your offices observe six Benchmarks for Industry-Based Customer Dispute Resolution (CDR Benchmarks), those being: independence, accessibility, fairness, accountability, efficiency and effectiveness.
I understand that the theme of this forum teases out one of these benchmarks—fairness.
Your benchmark has an underlying principle and a purpose. That procedures and decision-making of the office are fair and seen to be fair, with the objective (purpose) of ensuring that the office performs its functions in a manner that is fair and seen to be fair.[1]
This has, both and internal and external focus. The internal is appropriate where the benchmarks themselves are about process—of dispute resolution.
The external focus is ‘seen to be fair’ which approaches an objective standard.
What is ‘fair’?
What is ‘fair’? In law the idea of fairness is played out in some procedural contexts, like procedural fairness, which is an important component of the rule of law, which recognises a duty to accord a person procedural fairness—a term often used interchangeably with natural justice—before a decision that affects them is made.[2]
The Merit Protection Commissioner’s website provides a handy summary of this concept.[3]
The role of the Merit Protection Commissioner involves what may be seen to be issues of fairness in the Australian Public Service and Australian Parliamentary Service. The Commissioner’s office reviews employees’ concerns about matters affecting their employment, such as recruitment, discipline (misconduct) and performance management. The office also supports integrity and good practice in employment decision-making.
When it comes to challenges to decisions, review applicants may argue their agency did not give them procedural fairness or ‘natural justice’. Usually this means they think they did not have sufficient opportunity to state their case before an employment decision was made. As the website explains,
Procedural fairness is a legal principle that ensures fair decision making. It has developed over time as a result of decisions by the courts in administrative law cases. Some decision making processes, such as Code of Conduct decisions, have codified procedural fairness obligations, meaning that the legislation expressly provides for procedural fairness.
Generally, procedural fairness requires decisions to be consistent with:
- the bias rule—free from bias or apprehension of bias by the decision-maker.
- the evidence rule—rational or based on evidence that is logically capable of supporting the facts.
- the hearing rule—providing people likely to be adversely affected by decisions an opportunity to:
- present their case and
- have their response taken into consideration before the decision is made.
This is a clear summary of ideas of procedural fairness in administrative law. And by administrative law I mean the administrative law as set out in Australian law, statutes, regulations and other frameworks.
‘Fairness’ as a framing principle, like your Benchmarks, was also central to a number of inquiries that I led at the Australian Law Reform Commission.
In two inquiries on family violence, Family Violence—A Commonwealth Legal Response (2011) and in Family Violence—A National Legal Response (2009), fairness as a framing principle was expressed in this way:
Fairness—to ensure that legal responses to family violence are fair and just, holding those who use family violence accountable for their actions and providing protection to victims.
And then in the inquiry about older workers, Access All Ages—Older Workers and Commonwealth Laws (2013), we had to examine Commonwealth laws and legal frameworks that contained or created barriers to older persons participating, or continuing to actively participate, in the workforce or in other productive work (paid or unpaid).
One of our framing principles was ‘fairness’, but this was expressed in a different context from the one we used in the family violence inquiries:
Fairness—national resources should be distributed fairly and responsibility should be balanced between individuals and government. Fairness can be a consequence of coherence, consistency and the stability of the relevant systems involved. A further aspect is fairness between generations—that is, ‘intergenerational equity’. Issues important to intergenerational equity include the management of public debt and the funding of pension schemes. Fairness also encompasses ensuring basic rights and freedoms are enjoyed by older persons, and that there exists equality of opportunity in participation in paid and other productive work.
So, ‘fairness’ means different things in different contexts. Fairness in process. Fairness to individuals because of the systems of government and the coherence of laws. and substantive ideas of ‘fairness’, not just in terms of process but fairness in outcomes.
Fairness beyond domestic law
When I have had to interrogate ideas of fairness from the perspective of the Australian Law Reform Commission (ALRC) and the Australian Human Rights Commission, I have had to include wider considerations than just Australian law. Both Commissions have responsibility for considering the international conventions to which Australia is committed.
Section 24 of the Australian Law Reform Commission Act 1996 (Cth) wraps in both the domestic and international law settings for its law reform functions. In particular, the ALRC is required to ensure that its law reform recommendations are ‘as far as practicable, consistent with Australia’s international obligations that are relevant to the matter’.
When it comes to the Australian Human Rights Commission, our entire functions are framed through the lens of international law.
Section 11(1) of Australian Human Rights Commission Act 1986 (Cth) includes, for example, powers to examine laws and proposed laws, in terms of being consistent/inconsistent with or contrary to any human right. ‘Human rights’ in this context are directly referable to the international treaties. We can also seek to intervene, with the leave of the court, in proceedings that involve human rights issues.
We also have a complaint-handling function that is directly referable to six of the seven international treaties that Australia has ratified, which are scheduled to our Act—all except the International Covenant on Economic, Social and Cultural Rights. To explain this, I need to give a quick rundown of our complaints-handling pathways.
Our complaints handling is a significant part of our work.
Complaints usually start with just a phone call or email—some form of contact—by, on average, 15,000 people a year, individuals who consider that they have been badly done by in one way or another, and businesses just trying to understand their obligations. They are assisted or referred. About 2,000 people pursue the Commission’s formal complaints process—one that is based on conciliation. Only a tiny number of these ever end up in court—on average 2–4%; and most participants, both those who complain and those who are complained against, are very satisfied with the professionalism of the process and its outcomes.
So, if we were evaluating our complaints handling in terms of fairness, those engaged in the process give us high marks. Interestingly, respondents are marginally more satisfied even than complainants.
We actually have three distinct pathways of complaints.
The principal one, that is no doubt familiar to all of you, is our discrimination law complaints. Under the four federal discrimination laws—concerning race, sex, age and disability—certain conduct is made unlawful. There is a conciliation first stage, followed, potentially by consideration in the federal courts. The unlawfulness is made a matter of Australian law, through the domestic implementation of some of our international commitments, such as under the International Convention on the Elimination of All Forms of Racial Discrimination,[4] the Conbention on the Elimination of All Forms of Discrimination Against Women[5] and the Convention on the Rights of Persons with Disabilities.[6]
As a matter of Australian law, the complaints of unlawfulness under the Discrimination Acts are judiciable. ‘Unlawful discrimination’ in this sense is a cause of action under the statutes.
Not many matters end up in court, but you do at least have a chance under Australian law to go there.
Two of our complaints pathways have no possibility of judicial consideration. One set is based on the domestic implementation of an International Labor Organisation Convention, ILO 111, to do with equal opportunity in employment.[7] This was added to our functions in 1986 when we were put on a permanent footing. Hence the original name of the Act and, indeed, the Commission: Australian Human Rights and Equal Opportunity Commission Act (HREOC). The biggest set of complaints under this heading, which we call our ILO 111 complaints, concern discrimination on the basis of irrelevant criminal record in employment.
We get about the same number of these complaints as we do complaints under the Age Discrimination Act. This is what I describe as a ‘relic’ set of complaints.[8] The conduct is described as ‘discrimination’, but not ‘unlawful discrimination’. There is therefore inconsistency of treatment in our Act, and inconsistent outcomes for complainants, as compared to those who complain of ‘unlawful discrimination’. Nothing is enforceable anywhere. Complainants can’t even take their matter further than the Commission. And all the Commission can do is provide a report about the matter to the Attorney-General, who, since April 2017, doesn’t even have to table these anymore.[9]
Is this fair?
I am currently leading an inquiry to develop a reform agenda for human rights protections in Australia—Free and Equal: A National Conversation on Human Rights—and one recommendation that we are advancing is that this aspect of our function be brought in line with the framework of the Discrimination Acts, with a judiciable pathway for complaints.
But there is a further complaints-handling function which is also an original, in the sense that we have had it since the Commission was first set up in 1981, under Dame Roma Mitchell at the helm.
Australia’s ratification of the International Covenant on Civil and Political Rights (ICCPR) on 13 August 1980 provided the catalyst to the establishment of the first iteration of the present Commission, in 1981—as the ‘Human Rights Commission’—under the government of the Hon Malcolm Fraser MP.[10] The Prime Minister said the establishment of the Commission represented ‘a unique approach to issues of human rights’, with the capacity ‘to make an innovative contribution to the advancement of rights in Australia’. Its functions and powers, he said, were ‘based four square upon the fundamental realities of the acceptance and development of human rights in civilised communities’.[11]
The Human Rights Commission wrapped in the complaint-handling function under the Racial Discrimination Act 1975 (Cth) (RDA) and added a new aspect, as the Commission could now inquire into ‘any act or practice that may be inconsistent with or contrary to any human right’.[12] Hence the name of the new Commission as the ‘Human Rights Commission’.
What did this mean? The RDA covered some aspects of now established ‘human rights’ and was the first of the Discrimination Acts to include ‘unlawful discrimination’ in the mix. But the new ‘human rights’ limb added a generic description of matters that could be brought to the Commission, under the international conventions that were included by reference in the Act.[13]
‘Act or practice’ was defined, principally, as an act or practice by or on behalf of the Commonwealth.[14]
Continuing the central role of conciliation, the Commission was to endeavour to effect a settlement of the matters that gave rise to the complaint. But the next step was different. If a conciliation were not successful, and the Commission considered the act or practice was in breach of a human right by reference to the relevant international instruments, the Commission was obliged to report to the Minister (the Attorney-General) ‘the results of its inquiry and of any endeavours it has made to effect a settlement’.[15] Once a report was made to the Minister, the Minister was then obliged to table it within 15 sitting days of receiving it.[16]
In contrast to racial discrimination complaints, the 1981 Act did not create offences of infringement of human rights—a breach was not unlawful, as such.[17] A complaint stopped at the Human Rights Commission and the report to the Attorney-General. There was no recourse to the courts.
The Attorney-General Senator Durack, described the Commission’s settlement function of these matters as a ‘creative and developing process’, to assist the parties to reach an agreed outcome consistent with ICCPR rights. He said that the Commission would not need enforcement powers ‘of the kind vested in courts’.[18] Rather, the process itself would promote increased recognition and observance of human rights; as would the attendant publicity and government awareness that would result from the reporting to the Minister. The Attorney concluded that the Commission’s reports would ‘ensure that governments and parliaments are aware of situations in which there needs to be a redefinition of the rights of different individuals and will stimulate them to take appropriate action’.[19]
As the Commission observed, the effect of the reports was
to bring a matter to public notice, through its tabling in Parliament, and, perhaps, discussion there. This publicity itself may result in changes in the attitudes, not only of the parties concerned, but also of the community at large.[20]
Though not enforceable, the reports were therefore seen as performing a broader educative function.
While the rationale was of promoting recognition and observance of human rights through the tabling the reports, this was swept away with amendments to our Act in 2017, which removed the requirement of the Attorney-General to table the human rights complaints. We publish them on our website, but this is a long way from the rationale for restricting human rights complaints from enforceability.
The difficulty of this set of complaints is also that the respondent is principally the Commonwealth, because the ‘acts or practices’ that we can consider are those ‘by or behalf of the Commonwealth or an authority of the Commonwealth’.
Fairness played out in this context poses some interesting problems and challenges for the Commission, which at many times places us in an oppositional position to government.
Moreover the acts or practices may well be lawful under domestic law, but contrary to international human rights obligations. So the Commonwealth has a clear answer to the complaints in domestic law. But in international law that is no defence.
A classic illustration concerns ‘arbitrary detention’.
Article 9 of the ICCPR provides that ‘No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.’
Article 9 addresses some of the most basic liberty rights, and has been the subject of a large amount of Commission work, particularly—but not only—in the context of immigration detention.[21]
Since 1992, Australia has had a system of mandatory detention. Any non-citizen who is in Australia without a valid visa must be detained according to the Migration Act 1958 (Cth) (Migration Act). These people may only be released from immigration detention if they are granted a visa, or removed from Australia.
The following principles relating to arbitrary detention within the meaning of article 9 of the ICCPR arise from international human rights jurisprudence:
- lawful detention may become ‘arbitrary’ when a person’s deprivation of liberty becomes unjust, unreasonable or disproportionate in the particular circumstances
- ‘arbitrariness’ is not to be equated with ‘against the law’; it must be interpreted more broadly to include elements of inappropriateness, injustice or lack of predictability
- detention should not continue beyond the period for which a State party can provide appropriate justification.[22]
In Van Alphen v The Netherlands, the United Nations Human Rights Committee (UN HR Committee) found detention for a period of two months to be ‘arbitrary’ because the State Party did not show that remand in custody was necessary to prevent flight, interference with evidence or recurrence of crime.[23]
The UN HR Committee has stated in several communications that there is an obligation on the State Party to demonstrate that there was not a less invasive way than closed detention to achieve the ends of the State Party’s immigration policy (for example the imposition of reporting obligations, sureties or other conditions) in order to avoid the conclusion that detention was ‘arbitrary’.
Under international law, the guiding standard for restricting rights is proportionality, which means that deprivation of liberty—in this case, continuing immigration detention in closed environments—must be necessary and proportionate to a legitimate aim of the State Party—in this case, the Commonwealth of Australia—in order to avoid being ‘arbitrary’.[24]
Proportionality is the human rights standard of fairness.
It is therefore necessary to consider whether the detention of complainants in closed detention facilities can be justified as reasonable, necessary and proportionate on the basis of particular reasons specific to them, and in light of the available alternatives to closed detention. If their detention cannot be justified on these grounds, it will be disproportionate to the Commonwealth’s legitimate aim of ensuring the effective operation of Australia’s migration system and therefore considered ‘arbitrary’ under article 9 of the ICCPR.[25]
In Al-Kateb v Godwin [2004] HCA 37 there was a challenge to the legality of administrative detention by the Commonwealth under the provisions of the Migration Act. Although there is much discussion about the implications of the case, the essential principle is that virtually indefinite detention may be lawful under Australian law.
In a continuing series of reports the Commission has sought to point out, using the framing of fairness under international law as I am using it in this paper, that the approach to mandatory detention, and particularly closed detention, is approaching the problem in the wrong way.
Most recently the Commission considered this vexed situation in the context of people whose visas had been cancelled under s 501 of the Migration Act on ‘character grounds’—AHRC Report 141.[26]
People whose visas have been refused or cancelled under s 501 are not precluded from community detention or being granted bridging visas. The Commission therefore argued that failing the character test under s 501 of the Migration Act should not necessarily lead to continued and prolonged immigration detention. Alternatives to detention should be routinely considered for all people who have had their visa refused or cancelled under s 501, with conditions applied to mitigate risks as appropriate. Closed detention should only be used in exceptional circumstances—where identified risks cannot be managed through less restrictive means.
There was a broad spectrum in terms of seriousness of the offences committed by the complainants. Some have a long history of serious criminal convictions, others committed low-level offences, while one complainant never served any time in prison.
The inquiry concerning this group of complainants highlighted the prolonged and potentially indefinite periods individuals are spending in immigration detention—after their visas were cancelled. One of the key recommendations made is that an independent review process for long term detainees be established.
For the complainants who remained in detention, it is concerning that they spent more time in immigration detention than in prison serving the criminal sentence that triggered their visa cancellation or refusal. This fact illustrates the gravity of the problem faced by the Commonwealth in continuing to administratively detain individuals who have criminal convictions.
The inquiry did not consider the decision to cancel or refuse a visa. Neither did I come to a view on whether any of the complainants should be released into the community. Rather, the inquiry focused on whether the Commonwealth’s decision to continue to detain the complainants was consistent with their human rights and in what ways the decision could be made that would be more compatible with human rights standards in such difficult contexts.
We are still continuing that conversation.
There are a number of comparative schemes around the world in which authorities use conditions, analogous to those attached to parole or other conditional release schemes, for the purpose of releasing immigration detainees into the community pending the determination of a particular application or to facilitate their removal from the country.
With respect to the situation of detention in Australia, the question appears not to be asked whether an individual poses a risk to the community and, if there are risks, can they be appropriately mitigated through conditions? The approach has been rather to consider whether there is any need for an individual to be released from detention, rather than whether it is necessary to continue to detain the individual.
I should note that, however, that we have established constructive and regular forms of engagement with the Australian Border Force and with the Department of Home Affairs as part of seeking to address these broader policy issues, within the current policy settings of government.
But, when it comes to our function to consider human rights complaints, domestic law and international expectations are at loggerheads.
The Migration Act also purports to expressly exclude procedural fairness in the exercise of a statutory power, by providing, for example, that natural justice does not apply to a particular decisions. I note here, too, that in the ALRC report on Traditional Rights and Freedoms in Commonwealth Laws, the ALRC considered that the laws in relation to mandatory cancellation of visas on character grounds and the fast-track review process would benefit from further review to consider whether the exclusion of the duty to afford procedural fairness is proportionate, given the gravity of the consequences for those affected by the relevant decision.
In AHRC Report 141, the recommendations were for a detention review framework that will protect the Australian community while safeguarding the human rights of detainees, in particular, the right to be free from arbitrary detention.
Human rights principles of fairness
Looking to the more general issue of what is fairness in human rights terms, we see this expressed best in the way that a human rights approach enables resolution of apparent conflicts, or intersections, of rights and freedoms.
After all, apart from a few—like the right to life, freedom from torture and freedom from slavery—human rights are not absolute, immutable propositions.
There are checks and balances that exist with most human rights and freedoms. There are strict criteria for when you can limit rights. There is guidance on how you balance rights when they conflict. And there are expectations of what governments are obliged to do to make the realisation of rights possible.
Above all, human rights require transparency and accountability from government. This is a human rights-based approach. It is the human rights approach to fairness.
But the use of human rights principles does not usurp the role of government. Quite to the contrary—these principles can inform and enrich the debates of our politicians. They ensure that the human impact of decision making is at the front of mind: squarely understood and explained.
Human rights lawyers will be familiar with the framework we use, expressed as ‘respect, protect, fulfil’. It is a way of showing the various obligations on government if they are to fully protect human rights or remedy a breach of human rights. But is also a way of showing that there is no one measure, no silver bullet to protecting human rights. It is a much more sophisticated and nuanced endeavour that requires multiple actions, across multiple areas, with deliberative mechanisms in place.
At the heart of human rights and the treaties that Australia and the nations of the world committed to, is dignity and respect for individuals. Nation States play their part. As do national human rights institutions, like the Australian Human Rights Commission.
Human rights are a set of principles concerned with equality and fairness. Fairness is often expressed through ‘proportionality’ as the fairness lens of human rights law.
Some unresolved pieces in the fairness puzzle
A key aspect of our Free and Equal inquiry is to map out reforms for our discrimination framework.
Federal discrimination law has a key role to play in meeting Australia’s obligations across each domain: to respect, protect and fulfil human rights.
One of the key findings of our work is that the existing system of federal discrimination law is primarily geared towards the remedial aspects of the obligations to respect and protect.
There are gaps in the protection offered by these laws, as well as significant questions as to how accessible the discrimination law system is. This suggests that federal discrimination law could be more effective in meeting these obligations to respect and protect rights.
There is also a pressing need to shift the focus of the federal discrimination law system to a more preventative approach, and towards actions that better support the fulfilment of rights.
There are unaddressed reforms that have been identified as necessary for federal discrimination laws going back over decades.
It is also notable that the current Government has embarked on an ambitious and commendable effort to modernise the regulatory powers across a wide variety of areas of federal law since 2014. Model provisions were introduced in the Regulatory Powers (Standard Provisions) Act 2014 (Cth) and the Government has sought to standardise the operation of regulatory agencies and provide greater clarity and simplicity for the business community among others.
Federal discrimination law, however, is a notable absence in this modernisation effort. In consequence, federal discrimination laws have remained mostly untouched since they were introduced over 45, 35, 30 and 15 years ago.
They are now in need of a significant overhaul.
The Commission’s national reform agenda for discrimination law is framed around four integrated set of outcome pillars:
- building a preventative culture
- modernising the regulatory framework
- enhancing access to justice
- improving the practical operation of the laws.
Above all, we consider that reform should be seen as a shared endeavour, in which individuals, businesses, organisations and governments each actively contributes to and is assisted in reaching this outcome.
Framed around these outcome pillars the Commission is advocating for a fairer discrimination law system in Australia.
A further aspect of the Free and Equal inquiry is to advance the cause of the missing pieces in our domestic architecture of the protection of human rights. Our domestic legislation is not comprehensive in its protection of the human rights commitments we have made in ratifying international treaties. Recent discussions about freedom of religion, freedom of speech and protection of privacy are singular cases in point. Existing legislation, and the common law, go some way down these roads. But the common law has limits.
Protection of serious invasions of privacy, for example, has got stuck. The common law needs a great leap forward, as it achieved in Donoghue v Stevenson in relation to negligence,[27] but we have not got there yet. Perhaps the ‘age of drones’, is the contemporary equivalent of the ‘age of railroads’ to provide the necessary catalyst for the common law.[28]
The complexity of the system is also seen in the exposition of the three different pathways of complaints handling; and the ‘human rights’ pathway is not easily seen, being referenced to obligations that are not evident in Australian laws. How would the person in the street understand this—that they can make a complaint referable to the ICCPR directly to the Commission? Shouldn’t we all know what our human rights are?
The central fact, moreover, is that our human rights architecture is incomplete. The legal history of the Commission is like that of a house that has had several rooms added over a 30 year period without any thought, or recollection, as to the overall design or architecture of the place. To use another analogy, we are like a doughnut, with a hole in the middle.
The hole is a Human Rights Act, to frame rights in a positive way—such as may be offered by some form of positive expression of rights and freedoms, like the initiative adopted in the Human Rights Act in 2004 (ACT) ,the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Human Rights Act 2019 (Qld). There are also the older examples of the UK and New Zealand.[29]
The focus of these models is primarily aimed at ensuring that decisions are made with human rights obligations in mind. It is frontloaded, rather than reliant on ex post facto action through complaints. In any future consideration of improving human rights protections in Australia, and especially at the Federal level, such models will be instructive.
So, we are seeking to put ‘fairness’ in human rights terms at the front of decision making.
We still have a long way to go.
My own reference tools
Before I finish this presentation, I thought I would change tack altogether. It is to speak to you about how I approach decisionmaking through a fairness lens. How do I calibrate fairness in personal terms? This is particularly important in senior leadership positions.
First, people need to know what to expect of you; and even before that, you need to know what to expect of yourself. You need to develop what I think of as your own inner gyroscope, a point of moral equilibrium where you know that a decision is correct: your set of principles against which you can defend your judgments even to yourself. This is your own inner sense of fairness.
It drives constancy in your approach to all manner of things. I put it into practice in a personal mantra of ‘doing each day well’. It is part of personal resilience strategies, applied daily.
And the more your gyroscope is tested, the more confident you will grow in your own judgment; and others will see that constancy in you, which is crucial to good leadership. It also generates respect. People may not like your decisions all the time—but so long as you know and feel confident in the ‘rightness’ of what you are doing, it helps the doing each day well to continue over a lifetime.
I will add a bit of supplementary advice, or a PS, here. Really tough decisions are usually accompanied by what I call the ‘foetal 48 hours’. Any hard decision requires a moment of agony. But from long experience I can say that that agony is good; it is a formative part of the decision-making process. The foetal part of it lasts about 48 hours. Suddenly, a moment of clarity—and it’s behind you. If you build that into your thinking: it’s only going to last 48 hours and then it’ll be fine, it’s a good way of building your resilience strategies.
And there will be times when you have to make tough decisions; where it is utterly ‘your call’. With all the management training in the world, and lessons in dealing with difficult people, at times empathy runs out and hierarchy kicks in. This is where you will need your inner gyroscopic and faith in the foetal 48 hours.
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More speeches
Rosalind Croucher AM, President
Commission – General
