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Monday, 22 November 2010
Page: 3232

Mr KEENAN (6:32 PM) —I rise to speak on the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. These bills arise from the government’s response to the report of the National Human Rights Consultation. The most significant aspect of the government’s response was its abandonment of its earlier support for a bill of rights, which was a capitulation to the opposition’s criticism of that proposal, and its adoption of the more modest proposal put forward by the opposition.

The coalition’s submission to the National Human Rights Consultation recommended the establishment of a parliamentary committee to consider legislation from a human rights point of view. The following is the relevant portion of the coalition’s submission:

…the Opposition urges the NHRC to recommend against the adoption of a statutory bill of rights as its preferred model. Instead, the Opposition recommends that expanded Parliamentary scrutiny of legislation from a human rights point of view is a better alternative. The option we propose has the advantage of locating greater emphasis on human rights at the heart of the political system itself, while it is free of the potentially undemocratic consequences of placing unprecedented power to resolve essentially political questions in the hands of the judiciary.

…            …            …

Specifically, the Opposition invites the NHRC to consider recommending the establishment of a new Parliamentary Committee (either a Joint Standing Committee or a Standing Committee of the Senate), which would be given the specific task of considering legislation from a human rights point of view.

The new parliamentary committee would be able to examine legislation and conduct broad inquiries relating to human rights referred to it by the Attorney-General of the day. Its operation would be similar to that of the Joint Standing Committee on Treaties.

The purpose of statements of compatibility will be to inform parliamentary debate and, where appropriate, to justify restrictions or limitations upon rights where those restrictions are in the interests of other individuals or society more generally. The requirement to include statements of compatibility for disallowable instruments extends the responsibility for such statements from the committee to the executive. The workload and cost implications of this should be considered by the Senate committee.

Notwithstanding the fact that the bill reflects coalition policy, there are serious concerns about a broad definition of ‘human rights’ being derived from seven international instruments and the possible introduction, by the back door, of those instruments into Australian domestic law. The coalition supports in principle the establishment of the parliamentary committee; however, it holds concerns about the balance of the legislation, particularly in the definition of human rights.

Contrary to the approach taken in this bill, the rights which are routinely considered and applied by the courts and which govern—very successfully—the relationships of Australians with each other and their governments are those to be found in the Constitution, the statutes of the Commonwealth and the states, and in the common law. It is a fact that the principles underpinning and deriving from those traditions have informed the international conventions, rather than vice versa. The great and abiding traditions arising from these sources must find expression in these bills if the committee is to do its job.

As noted in the bill’s explanatory memorandum:

Part 1 of the Bill deals with preliminary matters including commencement and definitions. The Bill will define ‘human rights’ as the rights and freedoms recognised or declared by the seven core United Nations human rights treaties as they apply to Australia. These 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.

Part 2 of the bill establishes the Parliamentary Joint Committee on Human Rights and sets out the functions and administrative arrangements for the committee. The intended functions of the committee include examining acts, bills for acts and legislative instruments to check that they are compatible with Australia’s human rights obligations. The committee will report to both houses of parliament. The committee will also inquire into matters relating to human rights that are referred to it by the Attorney-General.

Part 3 of the bill will introduce the requirement for statements of compatibility to be prepared for all bills and legislative instruments subject to disallowance. This statement of compatibility must assess whether the bill or legislative instrument is compatible with the human rights in the seven core United Nations human rights treaties. Part 4 of the bill deals with miscellaneous matters and enables the Governor-General to make regulations.

The Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 contains the consequential amendments to the Legislative Instruments Act relating to statements of compatibility. This bill also contains amendments to the Administrative Appeals Tribunal Act 1975 to include the President of the Australian Human Rights Commission as an ex-officio member of the Administrative Review Council, as announced under the Human Rights Framework and related amendments.

In conclusion, as the Senate Standing Committee on Legal and Constitutional Affairs is to report on the bills on 7 December, the coalition reserves the right to move amendments if necessary. With that reservation, I commend this bill to the House.