Parliamentary Scrutiny of Human Rights to be Strengthened with new Bill

On 2 June 2010, the Attorney-General introduced the Human Rights (Parliamentary Scrutiny) Bill 2010, a key element of the Government’s new ‘Human Rights Framework’, in the House of Representatives. The Bill establishes a Joint Parliamentary Committee on Human Rights, to be comprised of five members of the House of Representatives and five Senators, with two primary functions:

• first, to examine Bills, legislative instruments and existing Acts ‘for compatibility with human rights and to report to both Houses of Parliament on that issue’; and
• second, to inquire into ‘any matter relating to human rights which is referred to it by the Attorney-General, and to report to both Houses of Parliament on that matter’.

The Bill also introduces a requirement that each new Bill introduced to parliament be accompanied by a Statement of Compatibility which includes an ‘assessment of whether the Bill is compatible with human rights’.

For the purposes of both the Joint Committee and Statements of Compatibility, ‘human rights’ means those human rights and fundamental freedoms contained in the seven core international human rights treaties to which Australia is party.

The legislation gives effect to the finding of the National Human Rights Consultation Committee that:

Greater consideration of human rights is needed in the development of legislation and policy and in the parliamentary process in general.  The primary aim of such consideration is to ensure that human rights concerns are identified early, so that policy and legislation can be developed in ways that do not impinge on human rights or, in circumstances where limitations on rights are necessary, those limitations can be justified to parliament and the community.

Consistent with this finding, in introducing the legislation, the Attorney-General stated the purpose of the measures is to ‘improve parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development’.  In order to fulfil this purpose, the measures should exhibit the following features.

Joint Parliamentary Committee on Human Rights

The powers, proceedings and modalities of the Committee are to be ‘determined by resolution of both Houses of Parliament’.  In the view of the HRLRC, in determining the Committee’s powers and working methods, Parliament should have regard to the following considerations.

First, the Committee should be given broad and permissive powers.  The broad mandate and modalities of the UK Joint Committee on Human Rights, recommended by the Council of Europe as an example of best practice in parliamentary human rights scrutiny, is one of its key strengths.

Second, the Committee should ‘screen’ all Bills that come before parliament, but, as with the UK Committee, focus its inquiries and reports on those Bills which raise prima facie human rights concerns (including those Bills or types of laws which have been identified as doing so by UN human rights bodies, the Australian Human Rights Commission and reputable human rights NGOs).  This will ensure that the work of the Committee is appropriately targeted.

Third, in assessing and reporting on the human rights compatibility of legislation, the Committee should consider Statements of Compatibility (together with other extrinsic materials), but should conduct its own independent analysis to ensure effective scrutiny of Bills.  It should also consider relevant international and foreign human rights jurisprudence.

Fourth, the Committee must have the power to call for submissions, convene public hearings and examine witnesses.

Fifth, the Committee must be given sufficient time to conduct inquiries and produce reports so as to actually inform parliamentary debate in a meaningful way.

Sixth, it is critical that the Committee have an adequately resourced secretariat with the requisite human rights law experience and expertise.

Seventh, the Committee should play a role in giving effect to the Government’s commitment to a ‘review of legislation, policies and practices for compliance with the seven core UN human rights treaties’.  In order to do this, it should be able to make recommendations and requests to the Attorney-General as to those matters which are referred to it for inquiry.

Statements of Compatibility

While the Human Rights (Parliamentary Scrutiny) Bill 2010 specifies that Statements should include an ‘assessment’ as to the compatibility of a proposed Bill with the human rights in all seven core UN human rights treaties to which Australia is party, it is silent on the nature, scope and detail of this assessment.  If, however, Statements of Compatibility are to fulfil their purpose of ‘improving parliamentary scrutiny of new laws for consistency with Australia’s human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development’, they should have the following features.

First, human rights should be considered, and Statements of Compatibility prepared, early in the policy development process.  As the Australian Human Rights Commission has stated, ‘to be truly useful, these statements must assist policy and legislative development from the outset, rather than being treated as an administrative requirement that is simply added on at the end stage of preparing a Bill.’

Second, Statements must be reasoned and include discussion and rigorous analysis of the human rights issues raised by a Bill.  The Attorney-General’s media release accompanying the Bill contained useful guidance in this regard, stating that Statements should ‘assist in explaining the purpose and intent of legislation, to contextualise human rights considerations, and where appropriate, justify restrictions or limitations on rights in the interests of other individuals or society more generally’.

Third, Statements should not be too long, legalistic or technical as this will detract from their utility in informing parliamentary dialogue about rights.  Keeping Statements of Compatibility succinct but adequately reasoned will be a particular challenge given that the compatibility analysis is to take account of the seven core human rights treaties, rather than, say, just civil and political rights as is the case under the Victorian Charter and the ACT Human Rights Act.  The best way to achieve this may be to confine the discussion to those rights which are actually limited by a Bill or a provision thereof, rather than to include a discussion of all those rights which are merely engaged by the proposed legislation.

Fourth, Statements of Compatibility should consider and, where appropriate, explain limitations in a rigorous and evidence-based manner which demonstrably justifies the intrusion on rights.  This will be a challenge because the seven core human rights treaties do not include a general limitations clause unlike, say, s 7 of the Victorian Charter of Human Rights and Responsibilities or s 1 of the Canadian Charter of Rights and Freedoms.  The best approach as a matter of practice may be for Statements to set out (a) whether and how a Bill limits human rights and (b) where human rights are limited, whether and how such limitations are ‘reasonable limits under law which can be demonstrably justified in a free and democratic society’.  This formulation is very similar to that contained in s 1 of the Canadian Charter which requires that any impairment of rights (a) be for a ‘pressing and substantial’ purpose; (b) be proportionate and rationally connected to the purpose; and (c) impair human rights as little as possible (see R v Oakes [1986] 1 SCR 103).

Fifth, given the extensive international and comparative human rights jurisprudence from which Australia can draw, it would be useful for guidelines on the preparation of Statements to specify that, in considering the scope and content of the seven core human rights treaties, ‘proper consideration be given to international human rights law and the judgments of domestic, foreign and international human rights courts, bodies and tribunals’.  Section 32(2) of the Victorian Charter contains a similar formulation.

Finally, to have the greatest impact and accessibility, Statements of Compatibility should be tabled with the Second Reading Speech of a Bill and also included in Hansard.  This will ensure that they meaningfully inform parliamentary dialogue and debate.