HUMAN RIGHTS FOR REGULATORS: USING INTERNATIONAL STANDARDS TO ASSIST IN DOMESTIC REGULATION.

• Author: Southalan, John

I INTRODUCTION

Most lawyers' understanding (and use) of international human rights is that these are relevant when, and only to the extent, they become domestic law. (1) There are many statutes which incorporate aspects of international human rights and enforce compliance within Australia--by private and public parties. (2) But the relevance of human rights standards for regulators is not, and should not, be limited to these statutory bounds. This article examines three areas in which regulators can use human rights, even where that is not expressly mandated by statute:

1. where discretionary power enables human rights criteria in the regulator's decisions or actions;

2. contributing to the human rights 'responsibility' on business; and

3. as a defence to challenges against regulatory action around public health, welfare, environment and related grounds.

The first and third of these are reasonably well-known by many regulators, whereas the second (business responsibility for human rights, and its relevance to government) is the main focus of this article. Each of these three areas are examined, following some introductory comments about comparative administrative law and human rights.

II COMPARATIVE ADMINISTRATIVE LAW AND 'HUMAN RIGHTS'

In focusing on application of international standards within a domestic jurisdiction, the question inevitably arises: which jurisdiction and what validity is there in couching observations beyond that territory? Administrative law has many similarities across jurisdictions. There are, of course, myriad differences; and a law or decision in one jurisdiction has no immediate or direct application elsewhere. Nevertheless the guidance from administrative practice and decisions (both good and bad) can inform administrative law approaches in different jurisdictions. Observations by Hans Nehl in this area describe two interesting processes which reinforce the importance of such comparative study, and also assess the role of international human rights standards.

--There is a general rise in discretionary powers being held by executive/administrative decision-makers, with decreasing control being specified from the legislative level; and

--One implication of this is that procedural administrative justice has an increasingly important role to play, and Dr Nehl considers 'judicial review will have to undergo a fundamental change in respect of both its object and its degree of scrutiny'. (13)

This increasing prevalence of executive discretion (rather than legislative direction) and judicial review warrant close examination of whether, and how, human rights standards may have a role in government decision-making. While this is not the place for a detailed study of comparative administrative law, (4) those points emphasise developments in this area. This article endeavours to assist in reducing the potential for judicial review applications, by explaining and justifying ways in which regulators can act consistently with human rights and minimise judicial review.

It is important to clarify, at the outset, what is meant by 'human rights' here, because that phrase has different understandings and uses. (5) For this article 'human rights' means the standards and procedures that have been internationally agreed by nation States: globally, this includes the UN Charter and nine main human rights treaties; (6) and regionally, any additional arrangements which have been agreed between those States in that region. This comprises not only the text of the treaties, but also the detailed explication of those rights by the international courts, tribunals and committees which are necessary to understand the content of any particular human rights standard. This 'scope' of human rights is ignoring customary international law obligations (7) and also the 'soft' law or developing standards. (8) The reason for focussing on existing treaty obligations is that these provide the least contested 'human rights' for a domestic regulator to understand, identify, and use.

A common, and wrong, critique of human rights is that they are amorphous aspirations (9) which protect most human behaviour and desires. (10) To the contrary--the international 'jurisprudence' provides a detailed legal regime of human rights standards through the courts' and committees' decisions on cases, explanatory general comments / recommendations, and reviewing countries' human rights records and reports. (11) Nearly every human rights standard (eg protection of culture, racial discrimination, right to free speech) is not an autonomous 'stand alone' right, but a legally identifiable range of protections and relations with other rights and processes. (12) The various international bodies detail the extent and operation of each human rights standard.

This article is not a moral argument about advancing human rights, but rather examines legal concepts around judicial review, and seeks to identify useful approaches for regulators. That can only occur with a clear understanding of what the relevant (13) human rights are (which can be sourced elsewhere (14)) and where these may arise for domestic regulators--which is sketched below.

III DOMESTIC LAW AND DISCRETIONARY DECISION-MAKING POWER

Three Australian jurisdictions have statutory law which requires government agencies to take human rights into account in decision-making and actions. (15) However those laws are an exception in providing specific parliamentary direction that regulators must consider human rights, (16) and this article focuses on the more common (Australian) situation where the relevant statute makes no specific reference to human rights. In this more common scenario (no legislative reference to 'human rights') the scope for government officers to consider human rights standards in their decisions and actions can be characterised in two ways: explicit or latent.

Considering, first, 'explicit' power: this is where the law governing the relevant decision/action mandates considerations relevant to human rights. These conditions may not be labelled or identified as 'human rights' but their operation ensures the regulator's decisions and considerations incorporate matters of human rights protection and fulfilment. Two Australian examples are: various laws about children which require the parties (including regulators) to act 'in the best interests of the child', (17) and rules about restraint/seclusion being used as a last resort in mental health care. (18) Other examples--within Australia and elsewhere--abound of written regulation which requires regulators to consider criteria which protect people's rights and interests.

The 'latent' category describes situations where the statutory discretion suggests human rights considerations could be taken into account, or the discretion is at least broad enough that that can occur consistently with the purpose of the discretion. Many jurisdictions and laws have governmental powers exercisable with reference to 'public' or 'national' interest. These provide a broad scope for the regulator to consider (and advance) human rights standards. For example, where an Australian statute includes a 'public interest' consideration, this enables the regulator to consider any 'purposes... not shown to be beyond the scope and purpose of the Act' which bestowed the 'public interest' power. (19) Another Australian example in the 'latent' category arose after the Commonwealth's rejection of an entry permit for a parent, in a manner seemingly inconsistent with various aspects in the Convention on the Rights of the Child (which Australia had joined, although these particular aspects had not been legislated). Court challenges progressed all the way to the High Court, where a majority ruled there was a 'legitimate expectation' that a decision-maker would act consistently with Australia's international obligations or, if that was not to occur, should give the person notice and opportunity to address that course. That was the decision of Teoh (20) and, although there have been subsequent reservations about the concept of 'legitimate expectation', (21) Teoh has not been overruled. (22) In any event, the reservations are not about 'international human rights' but rather the breadth of 'legitimate expectation', (23) which has more recently been critiqued as purporting to be an end itself, thereby distracting from the broader test which (in Australia) must be focussed on the process and not the content of the decision. (24)

Judicial consideration of decision-making can include broader concepts like human rights. (25) A recent example is the 2019 decision of the South Australian Full Court in Thomas v Attorney-General (SA). That case concerned an indefinite detention order that a prisoner be detained, even after completing his sentence, for community safety. The order was made under legislation stating that, in deciding whether to make such an order, 'the paramount consideration... must be the safety of the community'. The Court noted the South Australian legislation enabled--but did not explicitly demand--indefinite detention to be ordered, and in this case there were other ways in which community safety could be protected without ordering indefinite detention. (26) The Court also noted the international standards (and obligations on Australia) arising from human rights treaties and that these were against indefinite detention if the relevant law 'lacks elements of reasonableness, necessity and proportionality'. (27) The Court set aside the order of indefinite detention, and put an extended supervision order in its place, with part of the reasoning based on international human rights standards:

[49]... [T]here is considerable tension between s 58 of the Sentencing Act 2017 [South Australian law enabling the indefinite detention order[ and Article 9 of the 1CCPR [human rights treaty proscribing arbitrary detention]. The detention authorised by... the...