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Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010



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ISSN 1328-8091

PARLIAMENTARY

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Parliament of Australia Departmentof Parliamentary Services

Contents

Purpose .................................................................................................................................................... 2

Background .............................................................................................................................................. 2

Financial implications ............................................................................................................................... 4

Main Provisions ........................................................................................................................................ 4

BILLS DIGEST NO. 103, 2010-11 10 June 2011

Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010

Kirsty Magarey and Diane Spooner Law and Bills Digest Section

2 Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010

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Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010

Date introduced: 30 September 2010

House: House of Representatives

Portfolio: Attorney-General

Commencement: The formal provisions and items amending the Administrative Appeals Tribunal Act 1975 commence on Royal Assent. The amendment to the Legislative Instruments Act 2003 commences at the same time as Part 3 of the Principal Act (the proposed Human Rights (Parliamentary Scrutiny) Act 2010).

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 and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

To add the President of the Australian Human Rights Commission (AHRC) to the Administrative Review Council’s core members and to incorporate statements of compatibility into the definition of an explanatory statement in the Legislative Instruments Act 2003.

Background

The background to the Principal Bill can be found in the Bills Digest for the Human Rights (Parliamentary Scrutiny) Bill 2010.1

The provisions fall into two parts. The first amendments incorporate the President of the AHRC as an ex officio member of the Administrative Review Council (ARC). This change to the ARC cannot be said to be consequential to the passage of the Principal Act, which seeks to establish a statutory committee considering human rights in a systematic manner.

The independence of this Bill’s provisions is further demonstrated by the fact these first three provisions have commencement dates entirely independent of the commencement of the Principal Act. The provisions do, however, follow on from the Government’s ‘human rights framework’, as

1. K Magarey, D Spooner and R Jordan, Human Rights (Parliamentary Scrutiny) Bill 2010, Bills Digest, no. 102, 2010-11, Parliamentary Library, Canberra, 2011, viewed 10 June 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillsdgs%2F835499% 22

Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 3

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both the Explanatory Memorandum and second reading speech make clear.2 For further background on that framework see the Bills Digest for the Principal Bill.3

The ARC is a body established in the hope that it would ‘ensure that our system of administrative review is as effective and significant in its protection of the citizen as it can be’4, or to put it in the words of its most recent annual report:

The Administrative Review Council is an independent statutory body provided for under Part V of the Administrative Appeals Tribunal Act 1975... An essential part of the Council’s role is to promote knowledge and contribute to the discussion of administrative law matters, reinforcing the core administrative values of lawfulness, fairness, rationality, openness and efficiency. 5

The annual report goes on to reflect that

The Council is primarily an independent law reform and advisory body. It also has an important educative role promoting knowledge about the Commonwealth administrative law system by publishing reports and guides designed to contribute to the discussion of administrative law matters, within government and more widely, and helping promote better primary decision making. It has a valuable role in the formulation of innovative policy with respect to administrative developments.6

The ex officio incorporation of the President of the Human Rights Commission onto this body seems appropriate given their interest in the implementation of administrative law.

The other legislative change in the Bill is an amendment to the Legislative Instruments Act 2003 (the LIA). This is consequential to the Principal Act’s requirements that a statement of compatibility with human rights instruments be prepared when a legislative instrument can be subject to a parliamentary disallowance motion.

The amendment proposed would add to the definition of an explanatory statement in section 4 of the LIA. Under the amendment the definition of an explanatory statement would include (when an

2. Explanatory Memorandum, Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, viewed 12 November 2010, http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4425_ems_589bf93e-401b-45ce-a350-a98051584a1b/upload_pdf/347522.pdf;fileType=application%2Fpdf and R McCLelland, ‘Second reading speech: Human rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010’, House of Representatives, Debates, 30 September 2010, p. 273, viewed 10 June 2011, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F2010-09-30%2F0037%22

3. Human Rights (Parliamentary Scrutiny) Bill 2010, op. cit. 4. RJ Ellicott QC (Attorney-General), 15 December 1976 at the first meeting of the Council, quoted on the Council’s website: http://www.ag.gov.au/arc 5. Administrative Review Tribunal, thirty-third annual report 2008-09, Canberra 2009, p. 1, viewed 23 March 2011,

http://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~ARC+Annual+Repo rt+-+2008-09+-+pdf+version.PDF/$file/ARC+Annual+Report+-+2008-09+-+pdf+version.PDF 6. Ibid., pp. 1-2.

4 Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010

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instrument is subject to a possible disallowance motion) a statement of compatibility prepared under the proposed Human Rights (Parliamentary Scrutiny) Act 2010.

This requirement to have and to lodge an explanatory statement will not be legally enforceable. Section 26 of the LIA, which governs explanatory statements (requiring that they be lodged for registration when a legislative instrument is lodged for registration) also provides that a failure to lodge such an explanatory statement does not result in the invalidity of the instrument (subsection 26(2)).

Financial implications

There will be no financial implications of the Bill, as the Explanatory Memorandum makes clear.7

Main Provisions

The key legislative changes insert the President of the AHRC onto the ARC under subsection 49(1) of the Administrative Appeals Tribunal Act 1975 (item 1) and adjust the quorum for the ARC accordingly from 4 to 5 (item 3).

The LIA is changed to include in its definition of ‘explanatory statement’ a statement of compatibility under the proposed Human Rights (Parliamentary Scrutiny) Act. These statements will then be required when a disallowable legislative instrument is tabled in Parliament (item 4).

7. Explanatory Memorandum, Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010, p. 1, viewed 12 November 2010, http://parlinfo.aph.gov.au/parlInfo/download/legislation/ems/r4425_ems_589bf93e-401b-45ce-a350-a98051584a1b/upload_pdf/347522.pdf;fileType=application%2Fpdf.

Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 5

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© Commonwealth of Australia 2010

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