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Wednesday, 22 August 2012
Page: 6142


Senator STEPHENS (New South Wales) (17:32): On behalf of the Parliamentary Joint Committee on Human Rights, I present report No. 1 of 2012, Bills introduced 18 to 29 June 2012, and note that the report was tabled in the House of Representatives on 22 August 2012. I move:

That the Senate take note of the report.

In tabling the Parliamentary Joint Committee on Human Rights' first report of 2012—and, in fact, its first report ever—I take this opportunity to draw the attention of the Senate to the approach that the committee has adopted in examining each of the bills referred to in this report. Senators will recall that the committee is established under the Human Rights (Parliamentary Scrutiny) Act 2011 to examine and report to parliament on the compatibility of bills and legislative instruments with Australia's human rights obligations under seven core human rights treaties specified in section 3 of the act. The committee is able to examine existing legislation and conduct broad inquiries into matters relating to human rights as referred to it by the Attorney-General.

Before discussing the committee's consideration of bills in this report, I emphasise the significance that the committee attaches to the statement of compatibility. As the chair of the committee said in his statement to the House on 20 June this year, the committee views statements of compatibility as a key element in the parliament's consideration of human rights in the legislative process. The requirement for each new bill and each legislative instrument to be accompanied by a statement of compatibility has the potential to significantly increase transparency and accountability in the development of policy and legislation. It is obviously a significant starting point for the committee's consideration of bills and instruments. The committee considers that the preparation of a statement of compatibility should be the culmination of a process that commences early in the development of policy and not as a 'tick box' exercise at the end. In this way, a statement of compatibility can reasonably be expected to reflect, in appropriate detail, the assessment of human rights that took place during the development of the policy and the drafting of the legislation.

The statement of compatibility should: take the objective of the proposed legislation as its point of reference; identify the rights engaged; indicate the circumstances in which the legislation may promote or limit the rights engaged; and set out the justification for any limitations, in an appropriate level of detail, together with any safeguards provided in the legislation or elsewhere.

I now turn to the first report of the committee. The committee has considered 17 bills introduced during the period 18 June to 29 June 2012. Having examined these bills, the committee has approached them in the following way. Five of the bills do not engage human rights. However, one of the bills was introduced with a statement of compatibility that does not accord with the committee's expectations. The committee therefore proposes to write to the relevant minister and provide advice that it hopes will assist in the preparation of statements of compatibility of a similar nature in the future. The committee has identified a further four bills that were each introduced with a statement of compatibility claiming the bill does not engage human rights but for which the committee considers it requires further information before it is able to form its own view. In each case the committee proposes to write to the proponent of the bill and invite them to elaborate on the information provided in the statement of compatibility. This leaves eight bills that engage human rights. The committee has formed the view that five of these are compatible with human rights and that it requires further information to assist in its consideration of the remaining three bills.

I make it clear that it is not the committee's intention to name and shame anyone in this report. I want to emphasise that, at this very early stage in the implementation of this process, the committee is committed to working constructively with ministers, agencies and individual members and senators as they familiarise themselves with these requirements.

It is in this context that I draw your attention to a particular matter that the committee has considered in this report. Two of the bills examined in this report contain strict liability and reverse burden offences. In each case, the statement of compatibility claims that these offences have been drafted in light of guidelines provided by the Criminal Justice Division of the Attorney-General's Department and are consistent with these guidelines. In considering this claim, the committee has not accepted at face value the implication that the guidelines themselves are fully consistent with human rights. The committee has therefore examined the relevant part of the guidelines and is generally satisfied that strict liability and reverse burden offences that are drafted in accordance with these guidelines are likely to be compatible with human rights. However, the committee will continue to consider such offences on a case-by-case basis. The committee intends to adopt this approach in its consideration of all provisions that are said to be drafted in accordance with specific guidelines or drafting conventions. I therefore draw the Senate's attention to the committee's consideration of the Commonwealth Government Securities Legislation Amendment (Retail Trading) Bill 2012 and the Maritime Legislation Amendment Bill 2012. I emphasise that the committee considers that both of these bills are compatible with human rights.

In conclusion, I thank the chair and members of the committee, who have worked very collegiately over the past few weeks to try to structure a process that works for us all. I particularly commend and acknowledge the work of Jeanette Radcliffe and the secretariat, who have been working so hard to help the committee establish its procedures. It is a privilege for us all to be involved in creating a new process like this, which is so significant to the environment in which we are all working. I commend the report to the Senate and seek leave to continue my remarks later.

Leave granted; debate adjourned.