The power to enforce United Nations treaties

Laszlo Nagy made this Freedom of Information request to Australian Human Rights Commission

Australian Human Rights Commission did not have the information requested.

From: Laszlo Nagy

Delivered

Dear Australian Human Rights Commission,

The Attorney General confirms Australia's strict compliance to seven core international human rights treaties. This is defined as a state cannot use its internal laws to ignore its treaty obligations...Courts cannot operate outside the treaty they are signatory to, the Vienna treaty s27

As the courts are not abiding by these treaties, please forward the instrument that enforces courts to abide by these treaties.

Yours faithfully,

Laszlo Nagy

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From: Freedom of Information
Australian Human Rights Commission

Dear Laszlo

I refer to your request received by the Commission on 7 February 2019.

The right to access governments documents under the Freedom of Information Act 1982 (Cth) (FOI Act) is a right to obtain existing documents in the possession of an agency. A ‘document of an agency’ is:

-A document created or received in the agency
-A document in relation to which the agency has a contractual arrangement to ensure it receives the document.

As your request relates to an instrument that governs the conduct of courts in relation to Australia's treaty obligations, the Commission would not hold any documents relating to your request.

To the extent that you are requesting access to legislative instruments that govern federal courts, a Federal Register of Legislation is here: https://www.legislation.gov.au/

Courts are often exempt from certain provisions of the FOI Act but may have their own Information Publication plans which detail the types of information Courts are likely to provide. For example, the High Court's Information Publication plan can be found here: http://www.hcourt.gov.au/about/freedom-o...

As your request refers to the Attorney-General, you may wish to send your request to the Attorney-General's Department (AGD) to find out whether the AGD holds any documents that can satisfy your request. Requests can be sent to [email address]. More information about the AGD's FOI regime can be found here: https://www.ag.gov.au/RightsAndProtectio...

Please feel free to contact me if you have any questions relating to this.

Kind regards,

Stephanie Abi-Hanna
Paralegal
Legal Section
Australian Human Rights Commission
Level 3, 175 Pitt St, Sydney NSW 2000
GPO Box 5218, Sydney NSW 2001
T +61 2 9284 9635 F +61 2 9284 9611
E [email address] W www.humanrights.gov.au

Human rights: everyone, everywhere, everyday
We acknowledge the traditional custodians of this land,
the Gadigal peoples of the Eora Nation, and pay
our respects to their Elders, past, present and future.

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From: Laszlo Nagy

Delivered

Dear Freedom of Information,

It is my understanding that by law, the authority should normally have responded promptly.
I eagerly await your response to my request..

Yours sincerely,

Laszlo Nagy

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Locutus Sum left an annotation ()

There are several comments that are worthwhile to make. (1) Your request has been refused. Why and how it has been refused is a little uncertain but it has been refused. (2) Even if I am wrong in my statement in the previous sentence ( ... I am not ... ) it would not help to force the agency to do more.

Here is the explanation. I will start with the explanation for statement 2.

The agency has already told you that they do not have the documents you want: "As your request relates to an instrument that governs the conduct of courts in relation to Australia's treaty obligations, the Commission would not hold any documents relating to your request." It is true that this is not the statement of a formal FOI decision but it does not really matter. A formal decision would make more unnecessary work for the agency and it would be a refusal under section 24A of the FOI Act where it say, "An agency or Minister may refuse a request for access to a document if: (a) all reasonable steps have been taken to find the document; and (b) the agency or Minister is satisfied that the document: (i) is in the agency’s or Minister’s possession but cannot be found; or (ii) does not exist."

Now for an explanation of statement #1. You are correct to believe that an agency must respond within 30 days to a valid request for a document. This is in section 15(2)(b) of the FOI Act where it says: On receiving a request, the agency or Minister must: (a) as soon as practicable but in any case not later than 14 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified that the request has been received; and (b) as soon as practicable but in any case not later than the end of the period of 30 days after the day on which the request is received by or on behalf of the agency or Minister, take all reasonable steps to enable the applicant to be notified of a decision on the request (including a decision under section 21 to defer the provision of access to a document)."

Obviously the agency acknowledged your request in the 14 days allowed and in my opinion, they also answered it. But your request is not actually a valid request. A valid request must be for a specific identifiable document. It is not allowed to ask the agency to do research into the law or to answer questions about the law. In addition, the documents that you want (copies of laws, treaties, etc.) are available for a fee under an arrangement in place by a different agency (the Attorney-General's Department). Section 12(1)(b) of the Act explains that a person can't use the FOI Act to get access to such documents. Instead, you must do your own research, and buy the documents. You can in fact get copies of the laws without paying a fee! You must visit the legislation website that the agency told you about in their reply.

And finally, even if I am wrong, and your request was valid, it is also true that your request has been refused. This is because section 15AC of the FOI Act says that when an agency does not make a formal response to a valid request within the time that is allowed (30 days) the the "the principal officer of the agency or the Minister is taken to
have made a decision personally refusing to give access to the document on the last day of the initial decision period". The words "is taken" mean that the law will pretend, in a formal manner, that the refusal decision did occur.

My suggestion to you is to accept that (i) the agency does not have the documents you want, and (ii) that you want advice about the law and that no agency is obliged to give you that advice, and (iii) that you use https://www.austlii.edu.au and https://www.legislation.gov.au to do the research that is needed. If you are not sure where to begin in the search, it might be helpful to find the "Explanatory Memorandum" for the Act that relates to the human rights legislation that you are interested in. These explanatory memoranda often give background information about treaties and international law that is meaningful to the Act.

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From: Freedom of Information
Australian Human Rights Commission


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Dear Mr Nagy,

 

I understand that you requested that the Commission provide you with a
copy of ‘the instrument that forces courts to abide by international human
rights treaties’.

 

The Commission provided a response to your request on 7 February 2019 (see
attached). In this response, the Commission informed you that as your
request relates to an instrument that governs the conduct of courts in
relation to Australia's treaty obligations, the Commission would not hold
any documents relating to your request. The Commission then referred you
to other agencies that may hold the information you are seeking.

 

If there is a document in the possession of the Australian Human Rights
Commission that you would like to seek access to under the Freedom of
Information Act 1982, please provide your request in writing to this email
address.

 

Regards

 

Julie O’Brien
General Counsel

Australian Human Rights Commission
Level 3, 175 Pitt Street, Sydney NSW 2000
GPO Box 5218, Sydney NSW 2001
T +61 2 9284 9881 | F +61 2 9284 9611
E [1][email address] | W [2]humanrights.gov.au

Human rights: everyone, everywhere, everyday

We acknowledge the traditional custodians of this land,

the Gadigal peoples of the Eora Nation, and pay

our respects to their Elders, past, present and future.

[3]Title: Everyone's Business project logo - Description: Everyone's
Business - national workplace sexual harassment inquiry

[4]For more information or to have your say, [5]click here

[6]For 2018 survey results Everyone's Business: 4th National Sexual
Harassment survey

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