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Human Rights (Parliamentary Scrutiny) Bill 2010



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ISSN 1328-8091

PARLIAMENTARY

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Parliament of Australia Departmentof Parliamentary Services

Contents

Purpose .................................................................................................................................................... 3

Background .............................................................................................................................................. 3

Federal statutory parliamentary committees and parliamentary human rights committees in other jurisdictions ............................................................................................... 5

Committee consideration ................................................................................................................... 5

The Majority Report ...................................................................................................................... 6

The Opposition Senators’ Report .................................................................................................. 7

The Australian Greens ................................................................................................................... 8

Policy position of non-government parties/independents ................................................................ 8

Position of major interest groups ....................................................................................................... 9

Financial implications ............................................................................................................................... 9

Main issues............................................................................................................................................... 9

Key provisions ........................................................................................................................................ 10

Concluding comments ........................................................................................................................... 12

Appendix A ............................................................................................................................................. 14

History of statutory parliamentary committees ............................................................................... 14

Parliamentary human rights committees with a mandate to review Bills in other Australian jurisdictions .................................................................................................................................... 16

Australia ....................................................................................................................................... 16

Australian Capital Territory .................................................................................................... 17

New South Wales ................................................................................................................... 17

BILLS DIGEST NO. 102, 2010-11 10 June 2011

Human Rights (Parliamentary Scrutiny) Bill 2010

Kirsty Magarey, Diane Spooner and Roy Jordan Law and Bills Digest Section

Northern Territory. ................................................................................................................. 18

Queensland ............................................................................................................................. 18

South Australia ....................................................................................................................... 18

Tasmania ................................................................................................................................. 18

Western Australia ................................................................................................................... 18

Other countries ............................................................................................................................ 19

Canada .................................................................................................................................... 19

New Zealand ........................................................................................................................... 19

United Kingdom ...................................................................................................................... 19

United States .......................................................................................................................... 19

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Human Rights (Parliamentary Scrutiny) Bill 2010

Date introduced: 30 September 2010

House: House of Representatives

Portfolio: Attorney-General

Commencement: The formal provisions of the Bill commence on Royal Assent and the substantive Parts (2, 3 and 4) commence 28 days after Royal Assent (the Bill refers to 1 January 2011 as a potential start date. However since 1 January 2011 has passed the 28th day will necessarily be the relevant date).

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bills home page, or through http://www.aph.gov.au/bills/. When Bills have been passed they can be found at the ComLaw website, which is at http://www.comlaw.gov.au/.

Purpose

To establish a Parliamentary Joint Committee on Human Rights (the Committee or the PJCHR) and to require statements of compatibility for Bills and legislative instruments.

Background

In its 2007 National Platform the ALP had a commitment to establish an inquiry and consultation process to gauge the need and support for the statutory protection of human rights. In November 2008, the Rudd Government established a National Human Rights Consultation Committee (NHRCC), chaired by Father Frank Brennan, to undertake consultation and report by 30 September 2009.

In his submission to the Committee, shadow Attorney-General Senator George Brandis, on behalf of the Coalition Opposition parties, stated that ‘a statutory bill of rights is not the best model for advancing human rights’ and instead recommended that expanded parliamentary scrutiny of legislation from a human rights point of view through a new Parliamentary Committee would be a better alternative. Senator Brandis’ submission was supported by this statement from him:

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. No bill of rights would be necessary to enable the Committee to proceed: it could inquire and report to the Parliament on any possible incompatibilities between a bill before the Parliament and the international human rights instruments, in particular the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to which Australia is a party. Such legislative scrutiny is not unknown at present: it exists in various forms in the Senate Scrutiny of Bills Committee, the Senate Standing Committee on Regulations and Ordinances, and the Joint Standing Committee on Treaties. By adopting such an expedient, human rights issues would be identified and deliberated upon within the Parliament

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itself as an ordinary, but more formalized, aspect of its legislative processes; identified concerns could be remedied with specific amendments to particular bills; democratic principles would be respected; and the risk of compromising the separation of powers by drawing the judiciary into the kind of decisions which, in a liberal democracy, are the province of elected and accountable representatives, would be avoided.1

The NHRCC recommended that Australia adopt a federal Human Rights Act, along the lines of legislation already introduced in the Australian Capital Territory (ACT) and Victoria. The proposed legislation would set out a list of rights drawn from major human rights treaties, ensure that new legislation introduced into the Parliament was compatible with the Act and provide for the High Court to declare existing legislation incompatible with the Act and to refer the legislation back to Parliament for possible amendment. It also recommended the introduction of a committee such as that envisaged by Senator Brandis.2

In April 2010, the Government responded to the NHRCC report by issuing Australia’s Human Rights Framework document and related press releases, which included proposals to establish a statutory Parliamentary Joint Committee on Human Rights which would scrutinise legislation for compliance with human rights treaties and a requirement that all new legislation introduced or tabled in Parliament be accompanied by a compatibility statement on human rights.3 In addition, the Human Rights Framework proposed that federal anti-discrimination laws would be consolidated into a single Act to remove unnecessary regulatory overlap and to make the system more user-friendly. A federal Human Rights Act, which may involve the courts, was not intended at that stage, but a commitment was made to revisit the issue in 2014.

In June 2010 the Rudd Government introduced an earlier version of the Human Rights (Parliamentary Scrutiny) Bill 2010, together with a related Bill, the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010. The Bills were to be a partial implementation of the Australian Human Rights Framework. The main Bill provided for the powers, proceedings and functions of the committee, and introduced a requirement for statements of compatibility to be prepared for all Bills and disallowable legislative instruments. The Bills reached their second reading stage but lapsed in July 2010 when the 42nd Parliament was dissolved.

1. G Brandis, Submission by the Federal Opposition to the National Human Rights Consultation, 15 June 2009, viewed 2 February 2011, http://www.humanrightsconsultation.gov.au/www/nhrcc/RWPAttach.nsf/VAP/(D7E73B088FC7560533342EEFD6A9B B42)~Senator%2Bthe%2BHon%2BGeorge%2BBrandis,%2BSC%2Bon%2Bbehalf%2Bof%2Bthe%2BFederal%2BOppositi on_AGWW-7T677J.pdf/$file/Senator%2Bthe%2BHon%2BGeorge%2BBrandis,%2BSC%2Bon%2Bbehalf%2Bof%2Bthe%2BFederal% 2BOpposition_AGWW-7T677J.pdf

2. National Human Rights Consultation Committee, National Human Rights Consultation Report, September 2009, viewed 14 January 2011, http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Report 3. Attorney-General's Department, 'Australia's Human Rights Framework', 21 April 2010, viewed 30 November 2010, http://www.ag.gov.au/humanrightsframework

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These reintroduced Bills, with their proposal for a PJCHR, although still before the Parliament recently featured as a central element in the Australian Government’s Submission to the UN General Assembly’s Human Rights Council’s Universal Periodic Review of Australia’s compliance with their international human rights obligations.4

The Bills were read for the third time in the House of Representatives on 23 and 24 November 2010, and did not go to division.

Federal statutory parliamentary committees and parliamentary human rights committees in other jurisdictions

Providing some background and history to the establishment of parliamentary committees gives further context to the proposed establishment of another committee. Further information on this topic is provided in Appendix A, which looks at the history of statutory parliamentary committees in the Federal Parliament. An example of the benefits of cross-parliamentary liaison was recently supplied by Senator Helen Coonan, the Chair of the Senate Scrutiny of Bills Committee. She reflected that at the time of its establishment her Committee was the only one of its kind but that it subsequently served as an inspiration for the establishment of similar committees in six of Australia’s eight parliaments and for the UK’s Delegated Powers Scrutiny Committee.5 Pooling the understandings and experiences of parliamentary committees designed to support parliaments in their consideration of legislation may likewise be a useful exercise. Consequently, Appendix A also provides further information on comparable legislative arrangements in a range of domestic and international parliaments.

Committee consideration

The Bill as introduced in the previous Parliament was referred to the Senate Legal and Constitutional Affairs Legislation Committee on 2 June 2010 for inquiry and report by 15 June 2010, a date which was subsequently extended to 17 August 2010. Upon the prorogation of the Parliament before the reporting date the Committee decided not to continue its inquiry unless the Bills were reintroduced into the Parliament. These Bills were introduced into the Parliament in late September and they were referred again for report on 23 November 2010, which was extended until 7 December 2010,

4. See generally R McClelland, ‘Ministerial statement: Universal Periodic Review’, Parliament House, Canberra, 2 March 2011, viewed 3 March 2011, http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/page/Speeches_2011_FirstQuarter_2March201 1-MinisterialStatement-UniversalPeriodicReview, and the Working Group’s Advanced unedited version of the Draft Report, 3 February 2011, viewed 3 March 2011, http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~OIL+-+UPR+-+Australia+-+outcomes+report.pdf/$file/OIL+-+UPR+-+Australia+-+outcomes+report.pdf

5. H Coonan, ‘Role and contribution of Senate Legislative Committees’, Senate Committees and Government Accountability, 11 November 2010, p. 43, viewed 20 February 2011, http://www.aph.gov.au/senate/conferences/ctte-40th-anniversary/transcripts/111110.pdf

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whereupon additional time was required to consider the voluminous and varied submissions and evidence. Accordingly, a new reporting date of 28 January 2011 was set and met.6

The Majority Report

The Majority Report recommended that the Bills be passed subject to their recommendations for change. Most important, despite documenting considerable disquiet regarding the definition of human rights and the failure of the Bill to give cognisance to the pre-existing domestic understandings of human rights, the Majority did not recommend modifying the definition of human rights. Instead, (in Recommendation 1), they endorsed a review of this definition:

 so that the suitability and appropriateness of the seven human rights treaties nominated in the Bill as the core basis for consideration of human rights could be re-examined after 12 months operation of the Bill, and

 to consider whether additional legal materials fundamental to Australia’s legal system should be included in the definition of human rights7, and whether the definition of human rights used by the Committee and the Australian Human Rights Commission should be harmonised.

The other recommendations for change that were proposed in the Majority Report included various strengthenings and clarifications of the Bill’s provisions. It was recommended that the operational provisions of proposed section 7 be expanded to include rights to inquire and report on:

 matters at the Committee’s own initiative (‘connected with the performance of its functions’) (Recommendation 2)  matters in connection with its function referred to it by either Chamber (Recommendation 3),and  amendments to Bills (Recommendation 4).

With respect to proposed section 6, which stipulates that the ‘powers and proceedings’ of the Committee are to be determined by resolution of both Houses of the Parliament, the Report recommends that those parliamentary resolutions should include specific provisions so that:

 The Committee can report on its proceedings and their progress, the evidence and any recommendations (Recommendation 5)  Resolutions such as those envisaged in proposed section 6 should include the ‘ability to interact freely with, and request and obtain information from, ministers, government agencies and

other individuals or entitites’ (Recommendation 6), and

6. Senate Legal and Constitutional Committee, Human Rights (Parliamentary Scrutiny) Bill 2010 [Provisions] and Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 [Provisions], January 2011, viewed 1 February 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/human_rights_bills_43/index.htm

7. The three nominated sources of law were the Australian Constitution, the common law as applied in Australia and the statutes of the Commonwealth or state or territory parliaments.

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 The Committee is able to adopt an interactive approach to their work - for instance being able to suggest to the relevant minister that their concerns be addressed in a particular way, or being able to request information from the relevant minister as to why an issue has been approached in a particular manner (Recommendation 7).

With respect to statements of compatibility the Majority make a number of recommendations, specifically that the Bill be amended so that a member suggesting amendments be required to prepare a statement of compatibility (Recommendation 8) and that the Bill be revised so that statements of compatibility are given greater form - in particular so they must provide reasons for any incompatibility found (Recommendation 10). As statements must be prepared on all Bills by ministers, private members or senators, if adopted, Recommendation 8 will have significant ramifications on the workload particularly of private members and senators.

Recommendation 11 recommends that the Explanatory Memorandum for the Bill be amended so that the timing of a statement of compatibility is clarified. The recommendation is that the statement of compatibility is clearly required to be part of the Explanatory Memorandum and to have the same timing.

The changes in Recommendation 9 have broader implications for the Bill. Recommendation 9 is framed by reference to the need to clarify the content of a statement of compatibility but requires more generally that the purpose of the Human Rights Bill be articulated to include its purpose, which ‘is to promote and protect human rights in Australia’. Clarifying the purpose of the legislation may have implications for subsequent interpretations of the legislation.

The Opposition Senators’ Report

The Opposition Senators’ Report went to some lengths to establish that they were effectively the first body to have consistently advocated in favour of a Joint Parliamentary Committee on Human Rights (PJHCR). In fact, the argument ran, theirs was effectively the Committee that was being created, as the recommendations for the same body from the Government and from the NHRCC were framed by reference to, or rejection of, an additional mechanism involving what the Report termed ‘a statutory bill of rights’. Since the Coalition had argued for only a PJHRC theirs was the position being adopted in the Bill. They recommended supporting Part 2 of the Bill, which is the central operative part.

The Opposition did, however, have serious reservations with respect to a number of aspects of the Bill. In particular they were unhappy with the definition of ‘rights’, which ‘entirely ignores the human rights Australians enjoy under our own domestic law.’8 They recommend ‘a non-prescriptive approach to rights’ and suggest the Committee itself could be asked to consider whether there are

8. Senate Legal and Constitutional Committee, op. cit., p. 53.

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‘any omissions in the protection of personal rights and liberties arising from any of those sources *both domestic and international+, and how those omissions might be addressed’.9

They also argue that statements of compatibility should be abandoned. This is on the basis that these statements are ‘merely the expression of the opinion of the Executive Government’10 and that since the government would be bound to appear before a committee of inquiry to defend its legislation and that:

That is a more appropriate way for the Committee to inform itself of the opinion of the Executive Government, than creating a procedure in which, in effect, the Executive certifies a statute for compliance with human rights obligations, and thereby pre-empts the deliberations of the Parliamentary Committee itself.11

The Australian Greens

The Australian Greens provided ‘additional comments’ rather than another Report. In these comments they drew attention to their commitment to ensuring that Australia observes its international human rights obligations and that international human rights structures should be strong enough to render the monitoring of these rights effective. They share with a number of other submissions a regret at the government’s decision not to pursue the Human Rights Act, calling on the Government to pursue this option, if not now, then when the Human Rights Framework is reviewed in 2014. They endorse the position that the listed treaties should not be considered an exhaustive list of human rights sources and call for the Human Rights Commission’s mandate to be broadened to cover the proposed PJCHR’s more extensive list of treaties.

With respect to the PJCHR’s mandate and powers they recommend broadening the powers of self-referral that the Committee is given, in addition to ensuring a more comprehensive power of either Chamber to refer a matter to the Committee. Finally they recommend that the statements of compatibility be given greater legislative definition, in particular by ensuring that the statements of compatibility are tabled prior to second reading speeches. In summary they endorse Recommendations 2-8 of the Majority Report, while suggesting a strong form of wording for Recommendations 9, 10 and 11. They argue that Recommendation 1 of the Majority report, which deals with the definition of human rights, is an inadequate response. As noted above, the Majority Report postpones the need to address the definition of human rights until a review which should be held twelve months after the commencement of the proposed PJCHR.

Policy position of non-government parties/independents

The positions of the Coalition and the Government with respect to these Bills are well canvassed in the Report on this Bill. Similarly the Greens’ position is documented in the Committee’s Report. The

9. Ibid., p. 58.

10. Ibid.

11. Ibid.

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positions of Messrs Katter, Oakeshott and Windsor with respect to this Bill are not documented and, as noted above, since the Bill passed the House of Representatives with no division, their voting position was not documented. It could be the case that they will follow the position of the parties with which they have become affiliated, although if amendments are made which become controversial it is not clear what positions will be adopted in the House of Representatives. From the comparatively lengthy parliamentary history over which these Bills have developed, it might be possible that the Government will await forthcoming changes to the Senate’s make-up before exploring the final form of the Bill.

Position of major interest groups

This Bill’s development might be thought to follow the NHRCC’s proposals. While there were some strong voices raised against the ‘statutory bill of rights’ Father Brennan documents the widespread support for a legislative charter of rights expressed to his Committee12. Similarly the Senate Committee’s Report on this Bill documented widespread support for the PJCHR: ‘The vast majority of submitters and witnesses expressed in-principle support for the proposed new joint committee.’13 Nevertheless there are those, such as Senator McGauran, who are strongly opposed to the Bill in its entirety.14

Financial implications

The Explanatory Memorandum simply states that ‘*t+he items in this Bill have no financial impact on Government revenue.’15 There may, however be other financial implications. A new Committee will necessarily have budgetary implications for resource distributions within Parliament House, and the preparation of statements of compatibility will have resource implications for the public service, which will be responsible for preparing most of these statements. However these impacts are difficult to quantify, particularly when much of such work should in any case be included during the preparation of adequate secondary materials to accompany Bills.

Main issues

The main issues regarding this Bill have been extensively covered during the conduct of the Senate Legal and Constitutional Committee’s inquiries into the Bill’s provisions.

12. Of the 35 000 submissions sent to the NHRCC, 87% of the 33 356 who expressed an opinion were in favour of the legislative charter of rights, while independent research relying on a random telephone survey arrived at a figure of 57% in support, 14% opposed and 30% undecided. F Brennan ‘A charter of rights is divisive? The vast majority think not’, The Age, 23 April 2010, viewed 20 February 2011, http://www.theage.com.au/opinion/society-and-culture/a-charter-of-rights-is-divisive-the-vast-majority-think-not-20100422-tfqk.html also through other outlets.

13. Ibid., p. 15. 14. J McGauran, ‘Additional Comments to Opposition Senators’ Dissenting Report by Senator Julian McGauran’, Senate Legal and Constitutional Affairs Legislation Committee, Human Rights (Parliamentary Scrutiny) Bill 2010 [Provisions] and Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 [Provisions], p. 61, viewed

20 January 2011, http://www.aph.gov.au/senate/committee/legcon_ctte/human_rights_bills_43/report/d02.htm 15. Explanatory Memorandum, Human Rights (Parliamentary Scrutiny) Bill 2010, p. 2.

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The issues in contention seem to focus not so much on the advisability of a Committee (since all reports were in favour of a Committee) but instead, the precise definitions of its roles and powers and the relevant definitions of human rights were the primary matters of contention.

The Attorney-General recognised some of these concerns in his final address during the second reading debate in the House. He said:

It was certainly envisaged that, in working through these issues and obtaining grounding and experience in referring to those fundamental principles, the parliament itself may in the future choose to prescribe or list more precisely those fundamental human rights that the parliament determines to be appropriate. It may well be that an early role of the Parliamentary Joint Committee on Human Rights might well be to examine those instruments to obtain the views of the Australian people, to obtain the views of the parliament and to actually go through those instruments and list an Australian-specific point of reference to those human rights considerations that the Parliament of Australia regards as being specific and fundamental to Australia. This was envisaged as a two-stage step by the Brennan committee, and I refer that to members. It may well be that this could be the first stage of the process to that Australian-specific path. The government is committed to positive and practical changes to promote and protect human rights and I commend the bills to the House.16

Key provisions

The Bill is divided into four parts, with the first part covering the formal sections, including commencement and definitions. It is the definition of 'human rights' in proposed section 3 which has been the source of some controversy.

The definition is framed as exhaustive and stipulates seven central treaties, as recognised/declared to apply in Australia - meaning that any reservations to the treaties which Australia has in place will apply to the Conventions to be considered by the Committee. There have been a number of different treaties and declarations nominated for inclusion in this list, while at the moment no recognition is given to the possibility of agreeing to the inclusion of more treaties in this section other than through legislative amendment.

The second part of the Bill, contained in proposed Part 2 establishes the Committee, and specifies that it is to be appointed 'as soon as practicable' after the commencement of the first session of each Parliament (proposed section 4). Proposed section 5 stipulates a number of arrangements for the Committee:

 It is to consist of 10 members - 5 from the Senate and 5 from the House of Representatives.  Ministers, the Speaker and President and the Deputy-President and Chair of Committees of the Senate and the Chair of Committees of the House of Representatives are all precluded from serving on the Committee

16. R McClelland, 23 November 2011, p. 3525

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 All members cease to hold office when the House of Representatives is dissolved or expires.  Members also cease to hold office if they take up one of the excluded offices or if they deliver their resignation in writing to the President or Speaker (as relevant).  Either chamber is able to appoint a member to fill a relevant vacancy.

Proposed section 6 stipulates that the powers and proceedings of the Committee are to be determined by resolution of both Houses of the Parliament and proposed section 7 stipulates the functions of the Committee. The functions include: examining Bills and legislative instruments for compatibility with human rights (as defined in the Act); examining Acts for compatibility (obviously this would allow the Committee to examine and report on legislation already passed by the Parliament), and finally it can inquire into matters relating to human rights 'referred to it by the Attorney-General'. In all cases the Committee's functions require it to report its findings to both Houses of Parliament.

The third part of the Bill is in proposed Part 3, governing the ‘statements of compatibility’, which must be prepared at the behest of a member proposing a Bill (proposed subsection 8(1)) and then presented to the relevant House by the Member (or a Member acting on their behalf, proposed section 8(2)). The statement of compatibility ‘must include an assessment’ as to whether a Bill ‘is compatible with human rights.’ The Explanatory Memorandum provides a little more detail when it says that:

Statements are intended to be succinct assessments aimed at informing Parliamentary debate and containing a level of analysis that is proportionate to the impact of the proposed legislation on human rights.17

This additional detail derives from, therefore, the legislative provisions, rather than being contained therein.

It is clear both from the wording of the provision itself and from the Outline to the Explanatory Memorandum that ‘preparation and presentation to Parliament of a statement will be the responsibility of the Minister or private member or senator responsible for the Bill.’18

It should be noted with respect to proposed subsection 8(4) that, while it stipulates a court or tribunal is not bound by a statement of compatibility, such statements can still provide interpretive guidance to a court or tribunal where the meaning of the legislation is ambiguous or unclear. The Explanatory Memorandum points out that this provision (proposed 8(4)) is ‘not intended to exclude the operation of section 15AB of the Acts Interpretation Act 1901, which deals with use of extrinsic material in the interpretation of an Act.’19

17. Explanatory Memorandum, p. 4. 18. Ibid., p. 1. 19. Ibid., p. 5.

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Under proposed section 9 a similar regime is to be followed with respect to those legislative instruments which can be subject to disallowance. In this case however, the statement of compatibility becomes part of the explanatory statement by virtue of amendments made to the Legislative Instruments Act 2003 (the LIA) in the accompanying Human Rights (Parliamentary Scrutiny)(Consequential Provisions) Bill 2010. The Explanatory Statement is then tabled in accordance with the LIA.20

The final (and fourth) part of the Bill in proposed Part 4, contains a generic provision (proposed section 10), which would allow for the Governor-General to make regulations under the Act.

Concluding comments

The Bill does not change or challenge Australian law. It seeks to establish a Parliamentary Committee with a clear brief to evaluate Bills as they are introduced into Parliament. To evaluate them against a traditional understanding of human rights as enunciated in selected, well-established, international instruments. The Committee’s findings would not be binding on the Parliament but would simply be a mechanism for informing Parliament and the community as to how proposed legislation stands up against the human rights templates established within the United Nations’ human rights frameworks.

In some sense the proposal should be seen as a minor move towards informing the community about human rights, an aim which is recognised by most parties as desirable. On the other hand the proposal could be seen to be proposing a process which may impair the free flow of Parliamentary behaviour, through its requirement that certain administrative tasks must be undertaken before legislation is introduced. The requirement for statements of compatibility on all Bills, not just Government Bills, will contribute to this issue as well. Furthermore, if the relevant international human rights instruments are seen to be flawed, erroneous or misleading, then to utilise them in this way could be argued to be ill-advised. A possible response to the ‘human rights treaties are flawed’ argument would be to point out that the interpretation of treaties would be mediated by the Committee’s members, who are unlikely to favour some of the more extreme interpretations that have been suggested for these treaties. With this in mind it is possible to re-frame the proposition for the Committee in this manner:

The Committee would be required to evaluate legislative proposals against its understanding of human rights as enunciated in well-established, selected international instruments.

Thus the Committee’s successes or failures would depend, as with so many Parliamentary Committees, on the strengths and weaknesses of its membership and their collective understanding of the international human rights treaties as they apply in Australia.

20. Ibid., p. 1. See also item 4 of the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010.

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The attention and detail provided in a number of submissions to the Committee’s enquiries provide a significant basis for further development of the Bill, and indicate a strong general interest in the outcome of these discussions. Indeed the problems in this area do not generally include a scarcity of information. The Senate provides a significant degree of materials regarding issues facing parliamentary committees21, while a detailed background to the issues raised by the Bill can also be seen in proceedings of conferences such as the Australia-New Zealand Scrutiny of Legislation Conference: Scrutiny and Accountability in the 21st Century22 and the Senate Committees and Government Accountability, 40th Anniversary Conference.23 Furthermore the writings on the interactions between human rights concerns and parliamentary, or specifically legislative activities, is too voluminous to document here, but the NHRCC Report is a good introduction.24

21. See, for instance, the information provided in the Senate’s ‘Information about Committees’, viewed 21 January 2011, http://www.aph.gov.au/senate/committee/com-info.htm 22. Papers from the Australia-New Zealand Scrutiny of Legislation Conference: Scrutiny and Accountability in the 21 st

Century, 6-8 July 2009, viewed 20 February 2011, http://www.aph.gov.au/senate/sl_conference/index.htm 23. A conference to mark the 40th anniversary of the Senate's legislative and general purpose standing committee system held at Parliament House, Canberra, on 11 November 2010 and at Old Parliament House, Canberra, on

12 November 2010, viewed 20 February 2011, http://www.aph.gov.au/senate/conferences/ctte-40th-anniversary/index.htm 24. http://www.humanrightsconsultation.gov.au/

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Appendix A

History of statutory parliamentary committees

Originally statutory parliamentary committees in the Federal Parliament were established by legislation so that the committee could last the life of the Parliament rather than for the one year originally permitted under standing orders.25

According to Raymond Holzheimer:

Statutes appear particularly suitable to record the agreement between the Houses for joint standing committees. ... Standing Orders of either House provide a similar fixed framework for appointment of committees, also with members appointed at each new Parliament, but require the approval of only one House. Joint committees may be appointed by concurrent resolutions of both Houses [but] it is generally true that the more permanently established committees are appointed by more formal means [i.e. legislation].26

This view is also supported by other commentators who record the uncertainties in the early years of the Parliament over the establishment of joint committees and the usefulness of legislation to set out a committee’s membership, terms of reference and powers.27

The role of statutory joint committees now, however, ‘is to monitor the operations of sensitive agencies or complex areas of the law’.28

Committees set up by statute not only have perpetuity over different parliaments but also fixed terms of reference, which cannot be amended except by legislation.

The following joint statutory committees have been established since 1901. Current committees are in bold.29

25. J S Clemons, ‘Second reading speech: Committee of Public Accounts Bill 1913’, Senate and House of Representatives, Debates, 11 December 1913, p. 4146 26. R Holzheimer, Parliamentary Committees: an Examination of the purpose and effectiveness of Committees of Inquiry of the Australian Commonwealth Parliament, PhD thesis, University of Queensland, 1980, p. 11. 27. G S Reid and M Forrest, Australia’s Commonwealth Parliament 1901-1988, Melbourne University Press, Carlton, Vic.,

1989, pp. 370-374. 28. Odgers' Australian Senate Practice, twelfth edn, chapter 16 - Committees, viewed 10 June 2010, http://aph.gov.au/senate/pubs/odgers/chap1619.htm 29. House of Representatives practice, fifth edn, appendix 24: Committees of the House of Representatives and joint

committees, (updated online to 2008), viewed 3 June 2010, http://www.aph.gov.au/house/pubs/PRACTICE/index.htm. Table edited and updated by Roy Jordan.

Human Rights (Parliamentary Scrutiny) Bill 2010 15

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YEAR COMMITTEE NAME ENABLING LEGISLATION

1913-1931 Public Accounts Committee of Public Accounts

Act 1913

1913-1931 Public Works Commonwealth Public Works

Committee Act 1913

1937- Public Works Commonwealth Public Works

Committee Act 1936 (later replaced by Public Works Committee Act 1969)

1946- Broadcasting of Parliamentary

Proceedings

Parliamentary Proceedings Broadcasting Act 1946

1952-1997 Public Accounts Public Accounts Committee Act

1951

1984-2002 National Crime Authority National Crime Authority Act

1984

1988-2001 Australian Security Intelligence

Organisation

Australian Security Intelligence Organisation Act 1979 (Part VA)

1991-2001 Corporations and Securities Australian Securities

Commission Act 1989 (Part 14)

1994-2006 Native Title and the Aboriginal

and Torres Strait Islander Land Fund

Native Title Act 1993 (section 203)

1998- Public Accounts and Audit Public Accounts and Audit

Committee Act 1951

2002-2005 ASIO, ASIS and DSD Intelligence Services Act 2001

(section 28)

2002- Corporations and Financial

Services

Australian Securities and Investments Commission Act 2001 (Part 14)

2003-2010 Australian Crime Commission Australian Crime Commission

Act 2002 (Part III)

16 Human Rights (Parliamentary Scrutiny) Bill 2010

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YEAR COMMITTEE NAME ENABLING LEGISLATION

2005- Intelligence and Security Intelligence Services Act 2001

(section 28)

2007- Australian Commission for Law

Enforcement Integrity Law Enforcement Integrity Commissioner Act 2006 (Part 14)

2010- Parliamentary Joint Committee

on Law Enforcement

Parliamentary Joint Committee on Law Enforcement Act 2010

[proposed] 2011- Human Rights Human Rights (Parliamentary

Scrutiny) Bill 2010 (2011)

Parliamentary human rights committees with a mandate to review Bills in other Australian jurisdictions

Australia

Some legislatures in Australia have set up committees to scrutinise new legislation from a human rights perspective. The Australian Parliament currently has a Senate Standing Committee for the Scrutiny of Bills which includes in its mandate:

[to examine] all bills which come before the Parliament and reports to the Senate whether such bills:

 trespass unduly on personal rights and liberties;  make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;  make rights, liberties or obligations unduly dependent upon non-reviewable decisions; ...30

The Senate Standing Committee on Regulations and Ordinances was established in 1932 and, apart from certain Committees dealing with internal parliamentary matters, is the oldest Senate Committee. Its functions, which are set out in Senate Standing Order 23, are to scrutinise all disallowable instruments of delegated legislation to ensure their compliance with non-partisan principles of personal rights and parliamentary propriety.31

30. Committee website, viewed 10 June 2010, http://www.aph.gov.au/senate/committee/scrutiny/cominfo.htm 31. Taken from the Committee’s website, viewed 10 June 2010, http://www.aph.gov.au/Senate/committee/regord_ctte/cominfo.htm

Human Rights (Parliamentary Scrutiny) Bill 2010 17

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The following list sets out details of similar committees in other jurisdictions. Only the Victorian Scrutiny of Acts and Regulations Committee is specifically required to assess new legislation against a list of rights set out in legislation. It has a mandate to assess legislation against the Charter of Human Rights and Responsibilities which is set out in the Charter of Human Rights and Responsibilities Act 2006 (Vic) and which in turn implements many of the provisions of the International Covenant on Civil and Political Rights 1966 into the State of Victoria.

Australian Capital Territory

Standing Committee on Justice and Community Safety (when performing the duties of a scrutiny of Bills and subordinate legislation committee).

Established at the beginning of each Assembly, the Standing Committee on Justice and Community Safety examines both Bills and legislative instruments subject to disallowance and considers whether the clauses of Bills introduced into the Assembly:

(i) unduly trespass on personal rights and liberties;

(ii) make rights, liberties and/or obligations unduly dependent upon insufficiently defined administrative powers;

(iii) make rights, liberties and/or obligations unduly dependent upon non-reviewable decisions;

(iv) inappropriately delegate legislative powers; or

(v) insufficiently subject the exercise of legislative power to parliamentary scrutiny.

The Committee also reports to the Legislative Assembly about human rights issues raised by Bills presented to the Assembly pursuant to section 38 of the Human Rights Act 2004 (ACT).

The Committee is not able to initiate its own inquiries when performing the duties of a scrutiny of Bills and subordinate legislation committee.

New South Wales

Legislation Review Committee (joint statutory committee).

Established in 2003 by the Legislation Review Act 1987 (NSW), the Committee has the functions of reviewing all Bills introduced into Parliament and all regulations subject to disallowance. The Committee’s function with respect to Bills is set out in section 8A of the Legislation Review Act 1987 (NSW). Section 8A(1)(b) requires the Committee to report to Parliament on whether a Bill:

(i) trespasses unduly on personal rights and liberties, or

(ii) makes rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers, or

(iii) makes rights, liberties or obligations unduly dependent upon non-reviewable decisions, or

18 Human Rights (Parliamentary Scrutiny) Bill 2010

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(iv) inappropriately delegates legislative powers, or

(v) insufficiently subjects the exercise of legislative power to parliamentary scrutiny.

The Committee does not have power to initiate its own inquiries.

Northern Territory.

The Northern Territory does not have a dedicated scrutiny of Bills or human rights committee, although the Standing Committee of Legal and Constitutional Affairs may inquire into human rights issues and the Standing Committee on Subordinate Legislation and Publications may report on human rights aspects of disallowable instruments.

Queensland

The Scrutiny of Legislation Committee was originally established in 1995 and is now governed by section 103 of the Parliament of Queensland Act 2001 (Qld). The Committee considers:

(a) the application of fundamental legislative principles 32 to particular Bills and particular subordinate

legislation; and

(b) the lawfulness of particular subordinate legislation;

by examining all Bills and subordinate legislation.

South Australia

Sections 10-12 of the Parliamentary Committees Act 1991 (SA) establishes a joint Legislative Review Committee to examine matters referred to it, usually motions for disallowance of subordinate legislation. It does not have a specific Bills or human rights focus.

Tasmania

Although there is a Joint Standing Committee on Subordinate Legislation, there is no specific human rights or Bills committee.

Western Australia

Although a Legislative Council Legislation Committee was established in 2005 to scrutinise Bills referred to it by the Council from a technical perspective, there is no general scrutiny of Bills committee.

32. Fundamental legislative principles are the principles relating to legislation that underlie a parliamentary democracy based on the rule of law (Legislative Standards Act 1992, section 4(1)). The principles include requiring that legislation has sufficient regard to rights and liberties of individuals and the institution of Parliament.

Human Rights (Parliamentary Scrutiny) Bill 2010 19

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Other countries

Canada

The Senate Standing Committee on Human Rights inquires into Bills and topics referred to it by the Senate from a human rights perspective.

Standing Joint Committee on Scrutiny of Regulations scrutinises regulations to ensure they are in conformity with the Canadian Charter of Rights and Freedoms or the Canadian Bill of Rights.

New Zealand

The Justice and Electoral Committee was first established in late 1999 and is re-established at the beginning of each new Parliament by resolution of the House. The Committee has a mandate to scrutinise Bills referred to it by the House or to initiate its own inquiries into human rights issues (excluding Bills).33

United Kingdom

The Parliamentary Joint Committee on Human Rights was established in 2001. Its mandate is to scrutinise all Bills in order to alert Parliament to the risk of proceeding to legislate in a manner which will later be held by a court to be incompatible with the European Convention on Human Rights. The Committee also had a general mandate to consider matters relating to human rights in the United Kingdom.34

United States

The United States Congress has a strong committee system and, although there is not a single specific ‘scrutiny of Bills’ committee in either chamber, the standing committees established at the beginning of each Congressional term to cover broad subject areas and have a central role in reviewing all introduced legislation before it goes to the floor of the chamber.35 A Bill might go

33. New Zealand, House of Representatives, Standing orders, 1996, as amended to 2008, nos. 184-185, viewed 15 June 2010, http://www.parliament.nz/NR/rdonlyres/81D0893A-FFF2-47A3-9311-6358590BEB3D/100828/standingorders2008_5.pdf

34. See also: C Evans and S Evans, ‘Legislative scrutiny committees and Parliamentary conceptions of human rights’, Public Law, Winter, 2006, pp. 785-806, viewed 8 June 2010, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2FMARL6%22; M C Tolley, ‘Parliamentary scrutiny of rights in the United Kingdom: assessing the work of the Joint Committee on Human Rights’, Australian Journal of Political Science, vol. 44, no. 1, March 2009, pp. 41-55, viewed 8 June 2010, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2FJU3U6%22; F Klug and H Wildbore, ‘Breaking new ground: the Joint Committee on Human Rights and the role of Parliament in human rights compliance’, European Human Rights Law Review, no. 3, 2007, pp. 231-250, viewed 8 June 2010, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2F8GDP6%22

35. S R Benda, Committees in Legislatures: a Division of Labor, Legislative Research Series Paper #2, National Democratic Institute for International Affairs, Washington, DC, 1996, pp. 5-6, viewed 9 June 2010,

http://www.accessdemocracy.org/files/030_ww_committees.pdf

20 Human Rights (Parliamentary Scrutiny) Bill 2010

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before several committees at the same time. Although there are dedicated human rights subcommittees which deal with mainly overseas human rights issue, domestic human rights aspects of legislation are usually examined by subject committees. For the last few years, however, there has been a Subcommittee on Human Rights and the Law which was first established by the Senate Committee on the Judiciary during the Presidency of George W. Bush and which looked at human rights aspects of domestic legislation.36 It inquires into general human rights issues, as well as Bills and Acts from a human rights perspective.37

36. The website of the Subcommittee is at http://judiciary.senate.gov/about/subcommittees/humanrights.cfm, viewed 10 June 2010. 37. United States, Senate, Committee on the Judiciary, Report on the Activities of the Committee on the Judiciary United States Senate During the One Hundred Tenth Congress Pursuant To Rule xxvi of the Standing Rules of the United

States Senate, Senate Report 111-11, The Committee, Washington, DC, 2009, viewed 10 June 2010, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_reports&docid=f:sr011.111.pdf

Human Rights (Parliamentary Scrutiny) Bill 2010 21

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© Commonwealth of Australia 2010

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