Commonwealth Statements of Compatibility – small steps, early days

The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) took effect in January 2012. Among other things, the Act requires that all Bills introduced to either house of Parliament be accompanied by a Statement of Compatibility, setting out an assessment of whether the Bill is compatible with human rights. With the sitting of Federal Parliament in the first two weeks of February 2012, the first Statements of Compatibility were tabled. This represents significant progress in the consideration of Australia’s human rights obligations in the development of legislation by policy-makers and its considerations in Parliament. Evidence suggests that the Victorian and ACT systems of scrutiny of legislation for compatibility with human rights has had an impact in making legislation more human rights compliant.

The Commonwealth scheme has two significant differences to the existing Australian schemes:

• The definition of human rights incorporates the seven major human rights treaties to which Australia is a party, rather than just certain civil and political rights as in the ACT and Victorian models. This means that Statements must consider a much larger set of rights, but also treaties that impose different obligations on the state in respect of limitation and realisation of rights.
• The obligation to table Statements of Compatibility is not accompanied by any role for courts in assessing compatibility of legislation with human rights. Accordingly, there is no prospect of the accuracy of an assessment of compatibility made in a Statement being considered by a court.

The impact of these differences and particularly the absence of court oversight on the effectiveness of the scheme will need to be assessed over time.

Approximately twenty Bills were introduced to the Commonwealth Parliament in the first two sitting weeks. Interesting, seven of these Bills were non-Government Bills, and in some cases the member introducing the Bill did not comply with the requirement to table a Statement of Compatibility. The Act provides that a failure to table a Statement does not affect the validity of legislation.

Although it is difficult to make any definitive assessments based on such a small sample of Statements, some initial observations can be made.

All of the Statements noted that the Bills were compatible with human rights. In fact, of the fifteen Statements that were tabled, seven stated that no rights were engaged. This appears on face value to be a high proportion with no human rights impacts - higher than in Victoria, where a smaller set of rights is considered.

Half of the Bills that were found to engage or limit rights primarily limited economic, social and cultural rights, including the right to social security, health and education. This is the first time that the compatibility of Bills with economic, social and cultural rights has been explicitly considered in an Australian Parliament.

Unsurprising, the quality and depth of the analysis contained in the Statements thus far has been variable. Some Statements have set out what the government considers to be the content of relevant rights in some detail, whereas other provide little information about the content of rights or the justification for apparent limitations on rights. The Statement of Compatiblity for the Family Assistance and Other Legislation Assistance Bill 2012, for example, which reduces access to certain benefits, justified the changes by stating that “Australia has one of the most generous family payments systems in the world”, notwithstanding the fact that the changes were prima facie retrogressive measures that would require stronger justification.

In general, an early issue appears to be the standard for limitation of different rights. The Victorian and ACT Charters contain general limitations provisions which – although they have received some criticism – provide policy makers and politicians with a clear test for the justification of limitations on rights. While the Commonwealth Attorney-General’s Department has developed useful materials setting out permissible limitations on rights, the early Statements of Compatibility are not clearly setting out the test they are applying in justifying limitations. This is all the more needed in the Commonwealth scheme because of the different tests applied in international law for different rights, and under different treaties.

These are all challenges that can be met as policy-makers and politicians become more familiar with the scheme. In Victoria there have been significant changes over time in the form and content of statements, and in general the quality has improved over time.

A key role in the success or otherwise of the Commonwealth scheme will be played by the Joint Parliamentary Committee on Human Rights – especially given the absence of court oversight. In Victoria, SARC has been very influential in scrutinising statements – for better or worse. The Committee has yet to be established, although indications are that it will be done soon.

Statements of Compatibility can be found in the Explanatory Memorandum of a Bill, on the new Parliament House website: http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation#a1

Hugh Mannreitz is a Melbourne lawyer