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Monday, 22 November 2010
Page: 3242


Ms SMYTH (7:14 PM) —I rise to speak in favour of the bills before the House this evening, the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. I note that the member for Moreton has spoken of positive and negative occurrences in Australia’s human rights history in its distant past. I would particularly like to mention this evening Australia’s recent history of participation in the development and implementation of human rights law, which has been a fairly impressive one.

The Racial Discrimination Act was implemented by the Whitlam Labor government, the Sex Discrimination Act and the Australian Human Rights Commission Act by the Hawke Labor government and, importantly, the Disability Discrimination Act by the Keating Labor government. All of these very important reforms have reflected our longstanding commitment to enshrining international human rights obligations in domestic law. Now, under the Australian Human Rights Framework, those very significant pieces of legislation will be combined and harmonised.

At different times in its history, Australia has had significant influence in international institutions which have considered international obligations, and particularly international human rights obligations. There is no better example of this, to my mind, than the legacy of the great Labor luminary ‘Doc’ Evatt and his role in, amongst a raft of other things, the development of the Universal Declaration of Human Rights.

Despite all of this, we know that the human rights commitments which we have made as a nation by ratifying various very significant human rights instruments can sometimes be regarded as quite remote obligations, sometimes unconnected to the day-to-day lives of ordinary Australians. Although we regularly hear reference to the term ‘human rights’, what this means in practice is perhaps not widely understood in our community. Indeed, at least one member here this evening is convinced that we have a right to freedom of speech. We do not; we have, at best, an implied freedom of political communication. I say again that what human rights means in practice is perhaps not well understood in our community. It is for these reasons that it is especially important that the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 are given effect to.

These pieces of legislation will implement key provisions of Australia’s Human Rights Framework, which was released in April this year. The Human Rights Framework is intended to improve understanding of human rights. By improving understanding of human rights, it is hoped that we might be able to expect an increased respect for human rights obligations. The bills before the House will go a considerable way to ensuring due recognition of matters of human rights in the development of other legislation and policy. The bills incorporate key reforms which reflect the recommendations of the National Human Rights Consultation Committee following its rounds of public consultation on methods of promotion and observance of human rights obligations in Australia.

The National Human Rights Consultation Committee remarked in its findings:

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.

Australia must ensure that it takes active steps to ensure that it complies with its obligations under the core international instruments which will be used as the benchmark for human rights analysis under the bills. The rights and obligations in those instruments reflect the concerns of Australia and other countries which have ratified them to ensure that appropriate protection is given to citizens against unwarranted or arbitrary interference in their fundamental rights, irrespective of their gender, colour, disability, age, background or social status.

These bills reflect this government’s determination to properly give effect to the human rights obligations which we as a nation have acceded to. They provide for early consideration of human rights issues in both policy and law-making and reflect this government’s desire to give meaningful, practical and, importantly, whole-of-government effect to our international commitments. Scrutiny of new legislation to ensure consistency with our human rights obligations is a key focus of the bills. Each of these bills provides for measures which are intended to enhance parliamentary scrutiny of new legislation according to those international obligations and to encourage prompt consideration of human rights issues where they arise in the development of policy and legislation. This will be achieved in part through the establishment of the Parliamentary Joint Committee on Human Rights, which will have two key roles: firstly, to consider proposed and existing legislation to ensure that it is compatible with Australia’s human rights obligations and, secondly, to undertake inquiries into specific human rights matters which might be referred to the committee by the Attorney-General and then to report to parliament on those matters in due course. The committee will be the first committee established at a federal level which will be dedicated to scrutinising legislation from the perspective of both our national and international human rights obligations. It marks a significant advancement in the implementation of human rights obligations in a very practical way.

In all aspects of governance at a federal level, human rights will be given due regard. Importantly, the bills will also require that statements of compatibility be prepared for all bills and legislative instruments subject to disallowance. This will have regard to obligations in seven core United Nations human rights instruments which will form the benchmark for assessment of Australia’s human rights obligations. Statements of compatibility are intended to form part of the explanatory memorandum for legislation. It is anticipated that statements of compatibility will provide for analysis of the human rights implications of legislation, but those analyses will be in proportion to the likely impact of proposed legislation on human rights. The statements are intended to be relatively concise. Although statements of compatibility are not intended to be binding upon a court or tribunal, as is the case with other extrinsic materials, it is expected that the statements could be used to aid a court in the interpretation of the provisions of a statute where the meaning of the statute is otherwise ambiguous.

When parliament considers new legislation, statements of compatibility will give parliament guidance as to the relevant human rights considerations raised by the legislation and will assist in the direction of parliamentary debate. In appropriate circumstances, statements of compatibility might justify the restriction or limitation of certain rights where those restrictions or limitations may be in the interests of other individuals or society more generally, as permitted by the international human rights instruments which are used as a benchmark.

By establishing the new Joint Committee on Human Rights and requiring that statements of compatibility be prepared in relation to all new legislation, this government is taking steps to safeguard against the possibility of contravening our human rights obligations by oversight, omission or excess. We are also ensuring better opportunities for dialogue between the proposers of new legislation, other members of parliament, members of the public and affected groups in relation to the likely impact of proposed legislation from a human rights perspective. The measures proposed by the bills provide for greater transparency and improved opportunities for consultation in the legislative process.

In recent weeks we have discussed the circumstances of Afghanistan. We have, as a parliament, had regard to the civil unrest of a range of countries both in our immediate region and around the globe. What assists us in maintaining order and peace and in promoting opportunity in our own society is our recognition of certain minimum rights of each individual. These bills take further practical steps to assist in achieving this, particularly as legislation becomes more complex and expansive. I am very pleased to be able to lend my support to the passage of these bills.