INDEX 2

Human Rights Violations and Torture (Confidence: 92%)

Description: Evidence of actions that may align with human rights abuses, including possible psychological abuse and coercion. These issues are closely associated with claims under the Convention against Torture

The UN CRPD: An Assessment of Australia’s Level of Compliance

In its 2019 Concluding Observations on Australia’s Combined Second and Third Periodic Reports, the CRPD Committee expressed concern that there was no effective legislative framework to protect persons with disabilities from systemic, intersectional and multiple forms of discrimination, especially at the Commonwealth level.62 It then reiterated its 2013 recommendation that Australia strengthen anti-discrimination laws, particularly the DDA, to address and prohibit intersectional and multiple forms of discrimination.63

In its 2019 report to the CRPD Committee, the AHRC was concerned that ‘… in the absence of comprehensive human rights protections people with disability are not adequately protected from intersectional discrimination’.76

The AHRC added that the lack of remedies for intersectional discrimination impacted significantly upon First Nations people.77

It is clear that the laws of the Australian Parliament do not provide remedies for intersectional discrimination. These laws also require complaints of multiple or intersectional forms of discrimination to be brought under two or more statutory regimes. It is clear that Australia is not fully complying with article 5 of the CRPD. However, it is worth noting that the Australian Human Rights Commission considers two or more complaints as one for the purposes of conciliation, thereby offering some potential for intersectional factors to be considered.78

 International Covenant on Civil and Political Rights (ICCPR) and anti-torture provisions.Legal Relevance: In the Australian legal system, human rights claims could tie into constitutional law, the Charter of Human Rights (in applicable states), and international treaties to which Australia is a party. 

Values in Law: How they Influence and Shape Rules and the Application of Law [2016] FedJSchol 15 Chief Justice Allsop AO 20 October 2016

The argument of Sir Maurice Byers on Mr Kableas behalf reached to the very foundations of civil society: he submitted that the statute was not a law, but rather, in substance, an order to the Court to imprison Mr Kable; he submitted that the New South Wales

Constitution assumed the rule of law as a constitutional imperative, the continuation of which was a working assumption of the Australian Constitution; he submitted that the statute was inconsistent with a basal element of representative parliamentary democracy thus founded on the rule of law, by its call for imprisonment otherwise than pursuant to conviction for an offence; and the undermining of State courts making them unfit for the investiture of federal jurisdiction.

12 Aspects of these arguments were woven into the reasons of the majority[6]; a critical feature being the centrality of the chapter of the Constitution (Ch III) devoted to the federal judicature. Justice Gaudronas starting point was the constitutional structure of an integrated Australian judicial system for the exercise of the judicial power of the Commonwealth.[7] The Court was concerned with the freedoms and liberty upon which Australiaas whole system of government is founded. The Court held that the Judicature is vested with a form of power distinct and different from executive and legislative power; the power is based on pre-existing law (though part of the Judicatureas task is the lawas health and direction and so its change from time to time) and, as part of its essential fabric, the execution of judicial power is constitutionally required to be fair, equal and just. This is not rhetoric. These features are part of the defining character of the power. They are features that reach back to the rejection of inequality of status that was the foundation of the Ancient World,

Regulatory and State Capture (Confidence: 95%)

Description: The dataset suggests patterns indicative of regulatory capture, where regulatory bodies may be influenced by those they are supposed to regulate. There is evidence pointing to systemic bias that may protect certain organizations or individuals.

Legal Relevance: This theme directly connects to administrative law and regulatory oversight, potentially supporting claims of improper influence, conflicts of interest, and failures in due process or ethical governance.

VPSC Review of Victoria’s Executive

Officer Employment and Remuneration

Framework, 2016

It found a ‘piecemeal’ mix of legislation, policy and convention around executives that did not provide transparency, fairness or

rigour, and suggested major changes to improve integrity and accountability.

Is there a trend towards politicisation in Australia?

206. As reflected in the earlier discussion of recent landmark reports, government actions at odds with the Westminster tradition have attracted strong criticism across Australia. The Robodebt Royal Commission found senior APS officials knowingly shielded ministers from unwelcome advice, the Coaldrake Review highlighted the reluctance of Queensland officials to provide frank advice, and the Head Review found a senior New South Wales executive appointment decision was not kept at arms-length from a minister.

207. Here in Victoria, the Coate Report found responsibility and reasons for a significant Government decision were opaque, and IBAC’s Operation Daintree criticised senior VPS staff for allowing ministerial staffers to interfere with advice and decisions (discussed later in this chapter).

 Conflict of Interest and Misfeasance in Public Office (Confidence: 83%)Description: Identified conflicts of interest within institutions and possible misfeasance by public officers could point to improper actions taken without due regard to public duty.Legal Relevance: Misfeasance in public office is a serious claim that can lead to personal liability for public officers and is actionable under civil law. Evidence of conflict of interest also strengthens claims of biased decision-making.
Complaints: Good Practice Guide for Public Sector Agencies, Victorian Ombudsman SEP 2016
Royal Commission into the Robodebt Scheme, July 2023findings about breaches of the fundamental values of the Westminster tradition:• It is remarkable how little interest there seems to have been in ensuring the Scheme’s legality, how rushed its implementation was, how little thought was given to how it would affect welfare recipients and the lengths to which public servants were prepared to go to oblige ministers on a quest for savings. 

ARBITRARY ABUSE OF POWER AND REGULATORY SANCTIONS LEADING TO RESTRAINT OF TRADE

218. Perceptions of unfair recruitment or promotion of some executives dominated submissions. Some people recounted instances of executives apparently ‘dropped in’ to senior roles with no process. A few suggested this might have been to skew advice provided by the bureaucracy or to reward political loyalty, although we did not find direct evidence of this in the cases we investigated...

Erosion of merit selection

220. A particularly strong theme to emerge was the importance of merit-based employment decisions. The DPC Secretary’s submission affirmed merit selection as integral to the VPS:

The strong capability and professional culture in our public service is built upon a foundation of merit-based selection to support excellence in the provision of advice. We select the best people based on merit to provide the best policy advice to the government of the day.

221. However, many submissions also indicated an apparent erosion of this principle, potentially undermining public sector independence and professionalism.