2019

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

HUMAN RIGHTS (PARLIAMENTARY SCRUTINY) AMENDMENT (AUSTRALIAN FREEDOMS) BILL 2019

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Bernardi)

HUMAN RIGHTS (PARLIAMENTARY SCRUTINY) AMENDMENT (AUSTRALIAN FREEDOMS) BILL 2019

 

OUTLINE

 

The purpose of the Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019 is to better define and protect the basic freedoms of each and every Australian. This is done by improving the scrutiny of proposed and existing laws regarding their compatibility with the human rights and unalienable freedoms of individual Australians.

 

The Bill achieves this by explicitly prescribing a set of fundamental Australian freedoms which lawmakers must consider when introducing new legislation into the Parliament, above and beyond the set of human rights currently prescribed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Act). These freedoms include those of opinion, speech, thought, conscience and religion, the rights to life and protection of the family as well as freedoms from torture and retrospective criminal laws.

 

These unalienable freedoms of the individual—long-considered synonymous with liberal democracy—can no longer be taken for granted. As myriad new rights are defined, with new laws enacted and new legal and corporate precedents set, these unalienable freedoms are being gradually whittled down, crowded out and competed away. As such, they are now in need of more express definition, scrutiny and protection - as this Bill seeks to achieve.

 

The Bill does not establish an Australian “bill of rights”. However, it does ensure that our lawmakers—in their roles of designing, drafting, scrutinising, debating and enacting new laws, whether bills or disallowable legislative instruments—better protect these unalienable Australian freedoms. It does so by requiring any proposed law seeking to limit or remove such freedoms to be accompanied by a statement:

·          setting out which of those freedoms are, or may be, impacted and the justification or rationale for negatively impacting such freedoms;

·          addressing how the proposed law protects Australian freedoms; and

·          explaining how the proposed law ensures the protection of Australian freedoms is given priority over other human rights.

 

The Parliamentary Joint Committee on Human Rights (the Committee) will be similarly required to consider these Australian freedoms—above and beyond the set of human rights it currently considers—when it examines proposed laws.

 

This broadened assessment also extends to existing Acts that may be referred to the Committee for examination, as well as other matters relating to human rights and freedoms that the Attorney-General may refer to the Committee.

 

NOTES ON CLAUSES

Clause 1: Short Title

1.         Clause 1 is a formal provision specifying that the short title of the Bill, when enacted, shall be the Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Act 2019 .

Clause 2: Commencement

2.         This clause provides for the main provisions of the Bill to commence the day after Royal Assent.

Clause 3: Schedules

3.         Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule.  Any other item in a Schedule to this Act has effect according to its terms.

Schedule 1 — Amendments

Human Rights (Parliamentary Scrutiny) Act 2011

4.         The amendments in this Schedule set out the unalienable freedoms inherent in every Australian and aim to ensure that these freedoms are protected and given priority over all other human rights in the development of new laws.

Item 1 - Subsection 3(1)

5.         Item 1 inserts a definition of “Australian freedoms” into the definitions part of the Act — subsection 3(1) — which already includes a definition of “human rights”. This added definition includes the unalienable freedoms of opinion, speech, thought, conscience and religion, the rights to life and protection of the family as well as freedoms from torture and retrospective criminal laws. This definition makes explicit the freedoms of individuals long considered synonymous with liberal democracy.

Items 2 - Section 7

6.         Item 2 inserts the phrase “and Australian freedoms” after every use of the term “human rights” in section 7 of the Act, which defines the functions of the Committee. This would ensure that the Committee considers human rights and Australian freedoms whenever examining and reporting on:

·          the compatibility of bills and legislative instruments;

·          existing Acts; and

·          any matter for inquiry referred to the Committee by the Attorney-General.

Items 3 and 4 - Subsections 8(3) and 9(2)

7.         Items 3 and 4 replace existing subsections 8(3) and 9(2) of the Act to ensure that the statement of compatibility for any bill or disallowable legislative instrument specifically addresses Australian freedoms (not just human rights) and outlines how the Bill impacts those freedoms and prioritises them over other human rights.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . Indeed, this Bill buttresses and augments those human rights and freedoms.

 

Overview of the Bill

The purpose of the Human Rights (Parliamentary Scrutiny) Amendment (Australian Freedoms) Bill 2019 is to better define and protect the basic freedoms of each and every Australian. This is done by improving the scrutiny of proposed and existing laws regarding their compatibility with the human rights and unalienable freedoms of individual Australians.

 

The Bill achieves this by explicitly prescribing a set of fundamental Australian freedoms which lawmakers must consider when introducing new legislation into the Parliament, in addition to the human rights currently prescribed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 . These freedoms include those of opinion, speech, thought, conscience and religion, the rights to life and protection of the family as well as freedoms from torture and retrospective criminal laws.

 

Human rights implications

This Bill enhances the fundamental freedoms of individuals by more explicitly defining and protecting them when laws are being made and examined by the Parliamentary Joint Committee on Human Rights .

 

Conclusion

This Bill is compatible with human rights and freedoms as it expressly defines, enhances and protects those freedoms that are most fundamental to, and necessary for, Australian individuals to continue to live in and enjoy a liberal democracy.

 

Senator Bernardi