New legislation passed last week by the Federal Parliament will ensure greater parliamentary scrutiny of Australia's compliance with its international human rights obligations. The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth):
- requires all new legislation introduced to the Federal Parliament to be assessed for its compatibility with human rights
- establishes a new parliamentary joint committee on human rights.
The establishment of these two parliamentary scrutiny processes represents an important step in contributing to stronger human rights laws in Australia. The processes comprise key elements of the Federal Government's "human rights framework", which was introduced in response to the extensive national human rights consultation conducted in 2009.
The Act was passed on 25 November 2011 and will commence 28 days after it receives royal assent.
Importantly, the new scrutiny processes provide valuable advocacy opportunities for all members of the community to ensure that their human rights are appropriately considered in the development of new laws and policies.
Statements of compatibility
The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) requires that each new Bill introduced to the Federal Parliament be accompanied by a "statement of compatibility." Such statements must contain an "assessment of whether the Bill is compatible with human rights" and be introduced by the minister or member who is responsible for introducing the Bill. A statement of compatibility will ordinarily form part of the explanatory memorandum and be presented to Parliament at the same time.
New parliamentary joint committee on human rights
The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) also establishes a new parliamentary joint committee on human rights. The committee will comprise five members of the House of Representatives and five senators and will have two primary functions:
- to examine Bills, legislative instruments and existing Acts "for compatibility with human rights and to report to both Houses of Parliament on that issue"
- 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."
Definition of "human rights"
For the purposes of both the statements of compatibility and the parliamentary joint committee's functions, "human rights" are defined as those human rights and fundamental freedoms contained in the seven core international human rights treaties to which Australia is party, namely:
- the International Covenant on Civil and Political Rights
- the International Covenant on Economic, Social and Cultural Rights
- the International Convention on the Elimination of All Forms of Racial Discrimination
- the Convention on the on the Elimination of All Forms of Discrimination against Women
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- the Convention on the Rights of the Child
- the Convention on the Rights of Persons with Disabilities.
Lessons from Other Jurisdictions
Similar processes already operate in Australia in both the Australian Capital Territory and Victoria, as well as in many other jurisdictions around the world such as the United Kingdom and New Zealand. In Victoria, for example, the Charter of Human Rights and Responsibilities Act 2006 (Vic) requires the preparation of statements of compatibility and also requires the scrutiny of acts and regulations committee to consider any Bill introduced to Parliament and to report to the Parliament on the Bill's compatibility with the protected human rights.
In the Victorian experience, evidence from the operation of the Victorian Charter to date demonstrates that these scrutiny processes play an important role in increasing parliamentary dialogue about human rights, as well as enhancing transparency and accountability in policy making and legislative development. As the Victorian scrutiny of acts and regulations committee has stated:
"The requirement that all Bills be accompanied by a statement explaining whether and how they are compatible with human rights has the purpose of both informing parliamentary debate and ensuring that human rights are properly considered when Bills are developed.
These formal scrutiny processes have ensured that the human rights of all individuals and groups in society are more appropriately considered in legislative and policy formulation and that, generally speaking, limitations on rights are only been imposed after careful consideration as to their reasonableness, necessity and proportionality."
The Victorian Charter's pre-legislative scrutiny processes have also provided increased opportunities for the Victorian community to participate in debates about important issues of public interest. The measures provide opportunities for individuals and community organisations to participate in the scrutiny of legislation by making written submissions to politicians and government departments responsible for preparing new laws and policies, as well as to the parliamentary committee responsible for reporting on the compatibility of new laws with relevant human rights.
Consistent with this experience, in introducing the new legislation the Attorney-General, Robert McClelland, stated that 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."
The requirement for statements of compatibility and establishment of the new parliamentary joint committee on human rights are likely to represent an important step in ensuring better protection and promotion of human rights in Australia.
How will the new measures impact on you?
If you would like further information on how the new parliamentary scrutiny measures will be relevant to you or your organisation, then DLA Piper may be able to assist you. For enquiries please contact Ben Schokman by email at firstname.lastname@example.org or on (03) 9274 5183.
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