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Wednesday, 2 June 2010
Page: 4900


Mr McCLELLAND (Attorney-General) (9:15 AM) —I move:

That this bill be now read a second time.

Introduction

The Human Rights (Parliamentary Scrutiny) Bill 2010, together with the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, implements legislative elements of Australia’s Human Rights Framework, which was released on 21 April 2010.

Members will recall that the National Human Rights Committee, chaired by Father Frank Brennan, was asked to seek the Australian community’s views about three fundamental questions:

  • which human rights and responsibilities should be protected and promoted?
  • are these human rights currently being sufficiently protected and promoted?
  • how could Australia better protect and promote human rights?

The committee was asked to report back to government on options to enhance the promotion and protection of human rights. There was no predetermined outcome. The only requirement in the terms of reference was that the options should preserve the sovereignty of parliament and not include a constitutionally entrenched bill of rights.

Indeed, the committee reported back to government with a number of options to promote and protect human rights, and I specifically thank the work of that committee.

I am proud of the government’s framework which reflects key recommendations of the committee’s report.

The changes in the framework are aimed at enhancing understanding of and respect for human rights in Australia and ensuring appropriate recognition of human rights issues in legislative and policy development. The government believes it can implement these changes without enacting a charter of rights.

What does this mean in practice?

First, the committee emphasised the importance of human rights education as the highest priority.

The framework implements a range of measures to enhance education in our community, including in schools. We have committed resourcing to the Australian Human Rights Commission to enhance its role in community engagement and education and we have provided resourcing for non-government organisations to engage and inform the community about human rights.

We will also invest in education and training programs for the Australian Public Service. In terms of the public sector, most of the day-to-day interactions people have with the government of the day take place through our Public Service. We are fortunate to have a highly educated and competent Public Service. And I think that most people would acknowledge the importance of having a Public Service that is genuinely focused on the interests of the public that it serves.

As a government, we are focused on influencing the culture and practice of decision makers, policy developers and law-makers at the starting point in the development of policy and laws and creating an appreciation as to how laws impact on the individuals to which the laws apply.

This bill includes measures which will mean that the executive in proposing legislation and the parliament in considering legislation will have greater regard to the impact of laws on the rights of citizens.

Broad aims of the bill

The government believes that it is important to ensure that Australia’s domestic laws comply with our international obligations—particularly those that protect fundamental rights and freedoms.

Australia is party to the seven core United Nations treaties that protect human rights. The government believes that Australia can and should live up to its obligations under these treaties not simply because this is the right thing to do but because the principles contained in those documents provide a protection against unwarranted, unjustified or arbitrary interference with the fundamental rights enjoyed by all people irrespective of their colour, background or social status.

The bill contains two important measures that are designed 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.

Essentially the implementation of these two measures—that is, statements of compatibility on human rights and a new Joint Parliamentary Committee on Human Rights—establishes a dialogue between the executive, the parliament and ultimately the citizens of Australia.

First, the requirement of a statement of compatibility on human rights will establish a dialogue between the executive that is proposing the legislative action and the parliament that is considering the proposed action whereby members and senators will be specifically informed of human rights considerations so they are able to consider the impact of proposed legislation on the rights of people and families back in their electorates.

And in turn, the new parliamentary committee will be able to establish a dialogue between the parliament and citizens of Australia whereby the members of the new joint committee will be able to canvass the views of the public as to how they will be affected by proposed legislation.

In that sense, these measures incrementally advance the concept of participatory democracy in Australia by providing additional means for citizens to have direct input into the legislative process.

It is appropriate at this point to provide a brief overview to set out more precisely how these measures will operate in practice.

Joint Parliamentary Committee on Human Rights

The first of these measures is to establish a new Joint Parliamentary Committee on Human Rights.

As I have already indicated, parliamentary committees perform an important role in ensuring transparency and accountability in the legislative process.

The Parliamentary Joint Committee on Human Rights will be the first parliamentary committee at the federal level dedicated entirely to human rights scrutiny.

The reference point for the committee will be the rights and freedoms recognised or declared by the seven core United Nations human rights treaties as they apply to Australia. The treaties are:

  • International Convention on the Elimination of All Forms of Racial Discrimination
  • International Covenant on Civil and Political Rights
  • International Covenant on Economic, Social and Cultural Rights
  • Convention on the Elimination of All Forms of Discrimination against Women
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  • Convention on the Rights of the Child, and
  • Convention on the Rights of Persons with Disabilities.

The new committee will examine and report to parliament on compatibility of bills and legislative instruments with Australia’s human rights obligations under these seven human rights treaties.

It will also be able to examine existing legislation.

Consistent with other committees, the powers and proceedings of the committee are to be determined by resolution of both houses of parliament.

As I have already flagged, it is proposed that the committee will have broad powers to seek submissions, hold public hearings and examine witnesses.

The committee will also be able to conduct broad inquiries into matters relating to human rights referred to it by the Attorney-General of the day.

Statements of Compatibility

The second measure is to introduce a requirement for statements assessing compatibility with human rights to accompany all new bills and disallowable legislative instruments.

Compatibility with human rights will be assessed against the rights and freedoms in the seven core human rights instruments to which Australia is a party and which I have identified.

Statements of compatibility will ensure human rights analysis is undertaken by the executive at an early stage when developing legislation.

It also provides a reference point for parliament’s consideration of bills and legislative instruments. The statements will alert parliament to the relevant human rights considerations in a particular bill or disallowable instrument and will inform parliamentary debate.

As with explanatory memoranda, which assist in explaining the purpose and intent of the legislation, statements of compatibility will contextualise human rights considerations.

Where appropriate, statements may justify restrictions or limitations on rights where such restrictions are in the interests of other individuals or society more generally as consistent with Australia’s responsibilities. For instance, citizens have a right to live free from fear, violence, intimidation or abuse, and the government has a corresponding responsibility to take all reasonable measures to ensure that occurs and that citizens receive that necessary protection. It is the case that in achieving that outcome of protecting citizens, clearly it may be necessary to take action against those who would abuse the rights of their fellow citizens.

Statements of compatibility will also aid the consideration of relevant human rights issues by the Joint Parliamentary Committee on Human Rights. After enactment, statements of compatibility may also be of assistance to the courts. Currently, in determining the meaning of provisions in the event of ambiguity, a court may refer to other material considered by parliament in the passage of legislation. This includes accompanying explanatory memoranda, second reading speeches and parliamentary committee reports.

A statement of compatibility and a report of the Joint Committee on Human Rights, while not binding on a court or tribunal, could be used by the court or tribunal to assist in ascertaining the meaning of provisions in a statute where the meaning is unclear or ambiguous.

By these measures, the parliament will be empowered through its response to a minister’s statement and any committee report, to give more precise guidance to the courts as to the legislature’s intention in enacting legislation in the context of Australia’s human rights obligations.

These statements do not create new rights. The courts will have no additional powers to strike down or amend legislation.

Conclusion

These measures are about ensuring that the business of government as a matter of practice and culture considers how its legislation impacts on the rights of the people of Australia.

As mentioned, that is not to say that there won’t be decisions for government to make which require a balancing of competing interests. Individuals have rights and they also have responsibilities. Individual rights need to be contextualised against those responsibilities and the broader rights of a safe and effectively functioning society.

Early and ongoing consideration of human rights issues in the policy and law-making process and informing parliamentary debate on human rights issues will make positive changes for the relevance of legislation and the parliamentary process to the lives of our fellow Australians.

I commend the bill to the House.

Debate (on motion by Mrs Gash) adjourned.