New Commonwealth laws subject 
to human rights scrutiny

Laura Hilly and Emma Hoiberg
Human Rights

In keeping with the promise put forward in the federal government’s Human Rights Framework in 2010 to increase protection of human rights in Australia, the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) (‘the Act’) came into effect on 4 January 2012.

The Act introduces two significant changes to the way legislation is to be passed through federal parliament:

  • It establishes a Parliamentary Joint Committee on Human Rights (‘the Committee’) to examine Bills for compliance with certain human rights; and
  • It requires a statement of compatibility to be prepared in respect of each Bill introduced into a house of parliament, which assesses whether the Bill is compatible with human rights.

The ‘human rights’ covered by the Act are those rights and freedoms contained in seven core international human rights instruments, as they apply to Australia:

  • International Covenant on Civil and Political Rights;
  • International Covenant on Economic, Social and Cultural Rights;
  • International Convention on the Elimination of All Forms of Racial Discrimination;
  • Convention on the Elimination of All Forms of Discrimination Against Women;
  • Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment;
  • Convention on the Rights of the Child; and
  • Convention on the Rights of Persons with Disabilities.

While the importance of international law in Australia has been long been recognised by Australian courts, the Act places a heightened level of scrutiny on federal legislative drafters to ensure that all proposed legislation is compliant with these rights.

The Committee, comprising members from both the Senate and House of Representatives, will be responsible for scrutinising compliance. It will examine all Bills, Acts and legislative instruments, and report to both houses of parliament. The Committee may also inquire into any matter referred to it by the Attorney-General.

Any member of parliament who proposes to introduce a Bill will be required to prepare and present a statement of compatibility. It is expected that the statement will ordinarily be contained within the Explanatory Memorandum for the Bill. With little joy for those who would hope to use the Act to enforce human rights before the courts, the Act specifically provides that a statement of compatibility is not binding on any court or tribunal, nor will a failure to comply with the statement of compatibility process affect the validity or operation of any Act. This also means that finding a proposed Bill is incompatible with human rights will not necessarily prevent the Bill from being passed through parliament.

However, it is hoped that the Act will result in greater attention to human rights at the drafting stage. To assist public sector policy makers and drafters in making assessments of human rights compatibility, the Attorney General’s Department now provides a useful collection of tools on its website: http://www.ag.gov.au/www/agd/agd.nsf/Page/Human_rights_and_anti-discriminationHuman_Rights_Scrutiny. This resource promises to be an important source of information to facilitate the mainstreaming of human rights in Australia.

Whether the Act will in fact significantly contribute to the protection of human rights in Australia remains to be seen, given that the first Bills subject to the new regime will be introduced in Parliamentary sittings beginning in February 2012. However, it is hoped that the human rights mainstreaming efforts provided for by the Act will be a catalyst for the thought, reflection and resources needed to contribute to substantial human rights protection in Australia and not be seen as simply another bureaucratic box to tick.

LAURA HILLY and EMMA HOIBERG are both currently undertaking post-graduate studies at the University of Oxford.

(2012) 37(1) AltLJ 59
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