Focus: Human rights scrutiny for all federal laws
17 June 2010
In brief: Scrutiny of laws for consistency with human rights will be enhanced under new legislation recently introduced into Parliament by Federal Attorney-General Robert McClelland. Partner Alex Cuthbertson (view CV), Senior Associate Rachel Nicolson and Lawyer Dora Banyasz report.
How does it affect you?
- Each new piece of federal legislation will be examined by a parliamentary committee for consistency with Australia's human rights obligations.
- Ministers and Senators must prepare a statement of compatibility when introducing a bill to parliament, which provides an assessment of the compatibility of the bill with Australia's human rights obligations. These statements of compatibility may be used as extrinsic materials in interpreting legislative obligations.
- These changes will bring an increased human rights focus to the drafting and passing of legislation in all fields of regulation.
- These changes may also result in an increase in judicial consideration of human rights law and standards when interpreting legislative obligations.
- It will be important to examine how these mechanisms are implemented in practice and the consequences of their implementation for the private sector.
In December 2008, the Federal Government launched its National Consultation on Human Rights, the aim of which was to seek the community's views on human rights in Australia. The National Human Rights Consultation Committee, chaired by Father Frank Brennan, conducted extensive consultations across Australia, culminating in the release of the National Human Rights Consultation Report in September 2009.
On 21 April 2010, the Government released Australia's Human Rights Framework, its response to the committee's report. A key component of the framework was a commitment by the Government to establish a new Parliamentary Joint Committee on Human Rights to scrutinise the compatibility of new and existing federal legislation with Australia's human rights obligations. The Government also committed to introducing a requirement for all new federal legislation to be accompanied by a statement of compatibility.
On 2 June 2010, the Attorney-General, Robert McClelland, introduced a bill to the House of Representatives to enact the Human Rights (Parliamentary Scrutiny) Act 2010 (Cth) (the Bill). This Bill will implement the Government's commitments under the framework, described above.
The Bill defines human rights by reference to the seven major international human rights instruments, all of which have been ratified by Australia:
- the International Convention on the Elimination of all Forms of Racial Discrimination;
- the International Covenant on Economic, Social and Cultural Rights;
- the International Covenant on Civil and Political Rights;
- the Convention on the Elimination of all Forms of Discrimination Against Women;
- the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
- the Convention on the Rights of the Child; and
- the Convention on the Rights of Persons with Disabilities.
Importantly, it is the rights and freedoms recognised or declared by these treaties, as each treaty applies to Australia, that will form the basis for the review of any proposed federal legislation. The Federal Government has also stated its intention to review existing federal legislation against these rights, over time.
The Bill establishes two scrutiny mechanisms by which the Federal Parliament will consider Australia's human rights obligations in respect of federal legislation.
First, it establishes a Parliamentary Joint Committee on Human Rights. This committee will be composed of five members from the Senate and five members from the House of Representatives. The committee will have a number of functions. Primarily, it will examine bills and legislative instruments that come before either Houses of Parliament for compatibility with human rights (as defined above), and report to both the Senate and House of Representatives on that issue. In performing this function, the committee will be able to call for submissions, hold public hearings and examine witnesses, when it considers this to be appropriate. The committee will also have the broader function of being able to inquire into any matter relating to human rights that is referred to it by the Attorney-General.
Secondly, the Bill mandates that any member of Parliament who proposes to introduce a bill must prepare and present a statement of compatibility for that legislation. The statement of compatibility must provide an assessment of whether the bill is compatible with human rights. While no particular form for the statement is provided, according to the Explanatory Memorandum, the level of analysis required will be proportionate to the impact on human rights of the proposed legislation. Similar legislative scrutiny provisions were introduced into Victoria in 2006, under the Charter of Human Rights and Responsibilities Act 2006 (Vic). In general terms, Victorian statements of compatibility explain how the bill is compatible or, alternatively, is not compatible with human rights, and specify the nature and extent of any incompatibility. It is likely that federal statements of compatibility will, in practice, contain similar information to these Victorian statements. The federal statements of compatibility are expressly stated not to be binding on any court or tribunal. However, in the Explanatory Memorandum, it is stated that statements of compatibility may be used as extrinsic material in the interpretation of federal legislation.
If the Bill is enacted, the substantive provisions are scheduled to commence on the later of 1 January 2011 or 28 days after the Bill receives Royal Assent.
These new requirements will introduce into the legislative process an increased consideration of the potential human rights impacts of federal legislation, across all areas of federal legislation. The Government's commitment under the framework to increase human rights education will be an important component in the effective implementation of these mechanisms. The public service and decision-makers will benefit from training in order to understand and engage with, and to meet their obligations under, this system. It will be important to monitor how these changes affect the passage of legislation and the extent to which the content of legislation is modified to ensure compliance with human rights. From the Victorian experience, where similar legislative scrutiny provisions were introduced in 2006, it is clear that this process can have a significant impact on the formation of legislation.
- Alex Cuthbertson Partner,
Ph: +61 9613 8740
- Paul NicolsPartner, Sector Leader - Industrials,
Ph: +61 2 9230 4414
- Kim ReidPartner,
Ph: +61 2 9230 4037
- Tracey HarripPartner,
Ph: +61 7 3334 3215