Reflections on the 10th anniversary of the Parliamentary Joint Committee on Human Rights

Charlotte Fletcher and Anita Coles^*

Reflections on the 10th anniversary of the Parliamentary Joint Committee on Human Rights (PDF 636KB)

August 2022 marks 10 years since the Parliamentary Joint Committee on Human Rights (PJCHR) tabled its first legislative scrutiny report. In that time, 43 parliamentarians have served on the PJCHR, which has tabled more than 100 scrutiny reports. This paper reflects on the PJCHR's work over that period, including setting out the volume of scrutiny undertaken, and the way in which the PJCHR worked during the COVID-19 pandemic. It also examines the ways in which the PJCHR's processes have evolved in that time. Lastly, this paper considers the PJCHR's impact, highlighting examples of its influence on the development of federal legislation.

Introduction

Following a recommendation of the National Human Rights Consultation Committee in 2009,¹ Australia's Human Rights Framework (the Framework) was launched in 2010. A key element of this Framework was the establishment by Commonwealth legislation² of the PJCHR. The PJCHR was established in early 2012 in the 43rd Parliament and tabled its first scrutiny report in August 2012. The PJCHR, made up of 5 members of the House of Representatives and 5 senators,³ was designed to enhance the understanding of, and respect for, human rights in Australia, and to ensure appropriate recognition of human rights issues in legislative and policy development. It was also intended to establish a dialogue between the executive, the parliament, and the public.⁴ The powers and procedures of the PJCHR are determined by resolution of both houses of parliament at the start of each parliament.⁵ The PJCHR has now been in operation for a decade, an anniversary providing a timely opportunity to reflect on the PJCHR's work and impact.

This paper is divided into 3 sections, examining:

the PJCHR's legislative scrutiny and educative work over the past 10 years
case studies highlighting the type, breadth and extent of the PJCHR's impact
the PJCHR's scrutiny work during the COVID-19 pandemic.

The work of the PJCHR over 10 years

The PJCHR's core function is to examine all Commonwealth bills and legislative instruments for compatibility with human rights.⁶ On average, the PJCHR has considered 225 bills and 1,827 legislative instruments every year. In addition, the PJCHR may examine Acts for compatibility with human rights,⁷ and inquire into matters that have been referred by the Attorney-General.⁸ The PJCHR reports its findings to parliament regularly, tabling its scrutiny reports in both the House of Representatives and the Senate. The PJCHR also tables an annual report each year, as well as reports for any inquiries undertaken. In total, across 10 years, this has amounted to the tabling of:

124 scrutiny reports
8 annual reports
6 self-initiated inquiry reports (which included calling for submissions and holding public hearings)
2 inquiry reports into human rights matters referred to the PJCHR by the Attorney-General.⁹

The PJCHR also publishes an index of all bills and legislative instruments that have been the subject of substantive comment each year.¹⁰ Further, the PJCHR sends a regular 'scrutiny update' email to parliamentarians, their staff and subscribers when a new report has been tabled in the parliament, highlighting key concerns and findings.¹¹

The PJCHR is supported by a small secretariat and is advised by an independent external legal adviser.¹² The secretariat is co-located with the secretariats to the Senate Standing Committee for the Scrutiny of Bills and the Senate Standing Committee for the Scrutiny of Delegated Legislation. This means that, in practice, a significant degree of informal collaboration between these 3 legislative scrutiny committee secretariats takes place.

The PJCHR's educative role

A key aspect of the PJCHR's work is its educative role—enhancing the understanding of, and respect for, human rights in Australia, and facilitating the appropriate recognition of human rights issues in legislative and policy development.

When the PJCHR was first formed, committee members played a direct role in articulating the PJCHR's expectations in terms of the quality of statements of compatibility with human rights, including when making speeches in the parliament,¹³ in executive summaries at the beginning of scrutiny reports,¹⁴ and writing to ministers and departments where statements of compatibility with human rights did not meet the PJCHR's expectations.¹⁵ The PJCHR has also progressively published and revised practice notes (now called guidance notes) and other resources to assist its stakeholders, including:

a practice note on the PJCHR's expectations for statements of compatibility (first published in September 2012, and revised in September 2014 and November 2021)
a practice note on offence provisions, civil penalties and human rights (first published in early 2014, and revised later that year)
the Guide to Human Rights, which gives an overview of the 25 key human rights found in the 7 international human rights treaties against which the PJCHR considers questions of human rights compatibility (first published in March 2014 and revised in June 2015).

In addition, committee members, particularly the Chairs and Deputy Chairs, have played an active role in spreading awareness of the PJCHR's role and work, including by presenting speeches to public officials, non-government organisations and lawyers.¹⁶

Over time the PJCHR continued to reiterate its expectations to ministers and departments in terms of the content of statements of compatibility (including that they should be read as stand-alone documents, provide sufficient information about the purpose and effect of proposed legislation, the operation of individual provisions and how these may impact on human rights; and include an assessment of whether the proposed legislation is compatible with human rights).¹⁷ The responses received from proponents of legislation (usually ministers), in terms of both their tone and substance, while occasionally dismissive in the earlier part of the PJCHR's operation, have largely improved across the decade.¹⁸

The PJCHR's secretariat has often, on the PJCHR's behalf, undertaken an educative role for those preparing statements of compatibility accompanying legislation. The PJCHR has authorised its secretariat to engage directly with departmental officers to ask specific questions about how bills and legislative instruments were intended to operate (and so understand their implications in terms of human rights), and to provide feedback and guidance in the drafting of statements of compatibility with human rights.¹⁹ The secretariat has also on a number of occasions provided training to assist departmental officers in understanding human rights, the PJCHR's expectations, and best practice when drafting statements of compatibility with human rights.

The PJCHR's scrutiny of bills

Over its 10-year span, the PJCHR has examined a total of 2,254 bills and commented on 602 (27%). Overall, the PJCHR has considered that three-quarters of bills do not raise human rights concerns requiring the PJCHR's comment. This is because the bills may not have engaged any human rights, may have promoted rights, may have limited rights but it appeared these were permissible limits, and/or raised only marginal human rights concerns.

The PJCHR generally comments substantively on a bill where it raises human rights concerns or questions, typically by seeking further information from the proponent of the legislation (usually the minister).²⁰ The threshold for when the PJCHR will formally comment on a bill has evolved over time, gradually shifting towards a higher threshold. To some extent, this shift reflects an increased awareness by departments and proponents of legislation of the PJCHR's expectations when drafting statements of compatibility with human rights (and their knowledge and understanding of relevant human rights and how a proposed measure may engage them). It also appears to reflect a change in the PJCHR's approach to reporting. In its earlier years it focused largely on improving awareness and understanding of the PJCHR's expectations regarding statements of compatibility.²¹ As such, while in the first half of its existence the PJCHR often raised more minor human rights issues on the basis that the statement of compatibility was considered inadequate, in more recent years it has focused its reports on legislation where there appear to be some significant human rights questions to be addressed.²²

The following chart shows the numbers of bills introduced into the parliament from the time the PJCHR commenced its work in August 2012 to April 2022 (at the end of the 46th Parliament). It shows that the numbers of bills introduced each year (shown in orange) tends to remain fairly steady, with an average of 236 new bills being introduced each year.²³ The apparent low number of bills in 2012 and 2022 are because these 2 time periods are less than 6 months.

The green line indicates the number of bills that the PJCHR commented on in its scrutiny reports that year. Of note:

In 2012 and 2013, the PJCHR commented on a significant proportion of new bills.²⁴ This is because the PJCHR initially wrote up a greater proportion of bills in order to explain what the bills did (even where there were no human rights concerns), to fulfil its educative role and to establish the role of the PJCHR in the parliament.
From 2014 to 2021 (inclusive), the number of bills the PJCHR commented on remained fairly steady. The spike in the number of bills written up by the PJCHR in 2019 (69) in spite of the drop in the numbers of bills introduced that year (213), is largely attributable to the re-introduction of bills after the 2019 federal election. The PJCHR had previously raised human rights concerns about a number of bills which lapsed because they had not been passed by the end of the parliament. When those bills (whether in identical or substantially similar form) were re-introduced after the election, the PJCHR reiterated its earlier comments.²⁵ This had the effect that those re-introduced bills were nevertheless considered to have been subject to substantive PJCHR comment, hence the apparent spike in the numbers of bills considered in 2019.

The PJCHR's scrutiny of legislative instruments

In addition to its consideration of bills, the PJCHR examines all legislative instruments (that is, legislation made by the executive under the authority of an existing Act).²⁶ Legislative instruments usually take effect from the day after registration on the Federal Register of Legislation (FRL).²⁷ Legislative instruments are made continuously (including outside of parliamentary sitting days and, in some instances, during the caretaker period when elections are called), because the source of authority (an Act) already exists.²⁸ Delegated legislation may be either disallowable (meaning that either house of parliament can veto it within certain timeframes) or exempt from disallowance. Until July 2021, the PJCHR was the only parliamentary committee empowered to routinely scrutinise exempt delegated legislation.²⁹

Over the past 10 years, the PJCHR has examined more than 18,000 legislative instruments, commenting on 466 (an average of 3% overall). The PJCHR does not comment on the vast majority of delegated legislation as it often does not engage, or only marginally engages, human rights. For example, commonly seen legislative instruments routinely provide for a range of matters that raise no human rights concerns, including: new statements of principles specifying whether a particular medical condition may be connected to military service;³⁰ determining the characteristics of coins;³¹ establishing total allowable catches of certain fish;³² listing new threatened and endangered species;³³ and establishing and amending accounting standards.³⁴ Nevertheless, the PJCHR is required to examine each legislative instrument.³⁵

Because of this large volume, the PJCHR has always taken an exceptions-based approach to reporting on legislative instruments, and it has experimented with different ways by which to make clear what instruments have been considered in each reporting period. For the first 2 years of operation, the PJCHR published a list of all legislative instruments that had been considered at the end of each report (including those that raised no human rights concerns).³⁶ This practice ceased in August 2014, with reports thereafter simply referring to legislative instruments 'received' within a particular date range ('received' meaning provided to the secretariat by the Office of Parliamentary Counsel).³⁷ Some commentators expressed concern that this reduced the transparency around what legislative instruments had been considered.³⁸ This issue was resolved in February 2018 when references to legislative instruments 'received' between a particular period were replaced by reference to legislative instruments 'registered on the Federal Register of Legislation' between a particular date range.³⁹ This method allows for the full list of legislative instruments considered by the PJCHR during that period to be generated via the FRL website.⁴⁰

The following chart shows the numbers of legislative instruments registered on the FRL from August 2012 to June 2022. As indicated by the light blue line, the numbers of legislative instruments registered has fluctuated from year-to-year. The dark blue line indicates the number of instruments the PJCHR has commented on in its scrutiny reports each year.

Of note:

In 2013, the PJCHR commented on a relatively large proportion of legislative instruments (3.8%).⁴¹ As was the case with bills at the time, this is because the PJCHR initially wrote up a greater proportion of legislative instruments in order to explain what the instruments did (even where there were no human rights concerns), to fulfil its educative role and to establish the role of the PJCHR in the parliament.
In 2019, the PJCHR commented on a comparatively small percentage of legislative instruments (1.2%).⁴² This is likely attributable, in part, to the 2019 federal election period, during which the PJCHR did not exist and so no scrutiny reports were tabled,⁴³ and the fact that the PJCHR tabled only 6 scrutiny reports overall during 2019.

The timeliness of the PJCHR's reports

The PJCHR seeks to conclude its assessment of bills while they are still before the parliament, and its assessment of legislative instruments within the timeframe for disallowance (usually 15 sitting days),⁴⁴ where applicable. This ensures that its technical assessment of the compatibility of legislation with international human rights law is available to parliamentarians to inform their consideration of proposed legislation and motions proposing to disallow legislative instruments. However, there is no procedural requirement that provides that bills cannot pass before the PJCHR has reported on a particular bill, and the varying speeds with which bills proceed through both chambers is beyond the PJCHR's control. Further, while the PJCHR seeks to complete its consideration of legislative instruments within their period of disallowance, legislative instruments can become law immediately, and 20% of legislative instruments are exempt from disallowance.

The following chart illustrates the timeliness of the PJCHR's report on bills.⁴⁵ The data in green sets out the number of bills the PJCHR has considered each year, and the data in orange shows the number of bills that had already passed the parliament at the time the PJCHR published its initial comment.

Of note:

Between 2012 and 2015 (inclusive) there were some delays in the PJCHR's reporting on bills. In 2014 in particular, 24.8% of bills had passed before the PJCHR had published its initial comment.⁴⁶
From 2016 to 2021 (inclusive) the timeliness of the PJCHR's reporting on bills improved significantly. In 2019 in particular, just 4.2% of bills (9 bills) passed before the PJCHR had published an initial comment.⁴⁷
The spike in the number of bills that had passed before the PJCHR's initial comment in 2020 (21 bills, or 8.3%) is largely attributable to legislation which was passed in response to the COVID-19 pandemic, much of which passed both houses of parliament the day it was introduced.⁴⁸
Since 2016, the PJCHR has consistently reported on more than 90% of all bills while they remained before the parliament.

The PJCHR's capacity to report in a timely way has depended on several factors from time to time. These include the speed of legislative passage, the PJCHR's own work practices, and the timeliness of ministerial responses.

Speed of legislative passage

At times, the volume of legislation introduced, and the speed with which it is passed, has meant that the PJCHR is unable to complete its reports before legislation is passed. On some occasions it has been impossible for the PJCHR to consider bills before they pass the parliament. This was particularly the case in relation to bills responding to the COVID-19 pandemic, which often passed on the day they were introduced, or within a day or 2 of introduction.⁴⁹ Of the 24 bills that passed before the PJCHR's final comment in 2020, 15 passed both houses of parliament on the same day they were introduced, and all passed both houses within 7 calendar days of their introduction.

Evolving committee work practices

Some aspects of the PJCHR's work practices have also contributed to its timeliness. In its first 8 years, the PJCHR generally met only in person during joint sitting weeks, and would meet in the second week of back-to-back sittings where these occurred. This meant that bills that had been introduced in the first sitting week were not able to be fully reviewed before the PJCHR's meeting in the second week (especially where they were complex and may have had complicated human rights implications), because this would require their review within one day of their introduction. Consideration of such bills was often deferred, a practice which attracted some criticism.⁵⁰ In addition, consideration of private members' bills would often also be deferred because they were not given priority in terms of internal review as such bills rarely pass the parliament.⁵¹ Ultimately, the PJCHR would often resolve not to comment on many deferred bills once they had been appropriately reviewed. With respect to legislative instruments, the PJCHR historically reported on many instruments where the period for disallowance had already passed. Overall, the PJCHR's timeliness in respect of reporting on both bills and legislative instruments has prompted some criticism.⁵²

However, in the 46th Parliament, since the onset of the COVID-19 pandemic, the PJCHR resolved to meet and table its scrutiny reports both within and outside of parliamentary sittings. This has meant that it can report in a more timely way, and that the PJCHR only occasionally needs to defer the consideration of bills in cases where there is no time to consider them and they raise potentially significant human rights concerns. In 2021, 203 of the 223 bills introduced (91%) were still before the parliament when the PJCHR published its final comments, meaning that its advice was available to parliamentarians to consider while a bill remained before the parliament. Further, since 2021 the PJCHR has reviewed all legislative instruments, and commented on relevant instruments, within the disallowance period.⁵³

Ministerial responses

A further factor influencing the PJCHR's capacity to conclude its consideration of legislation in a timely manner is the receipt of responses from the proponent of legislation in the time provided. Where the PJCHR has written to the relevant minister to seek information before concluding its advice to parliament, it has always stipulated a deadline by which it expects a response to be provided (typically 2 weeks, with discretion for the secretariat to provide extensions of time if feasible). Although there is no legal or procedural requirement that a minister provide the response within this period, the timeliness of responses from ministers has improved dramatically in recent years. The following chart sets out the numbers of requests made by the PJCHR for a response (shown in blue) compared with the number of responses which were received within the time provided (in orange).

Of note:

In 2012 and 2013 the PJCHR did not report on the number of responses it had received, and as such this time period is not included in the chart.
Until 2018, PJCHR reports identified whether a response was on time or late depending on the initial requested date and did not include data on whether responses were received on time where extensions had been granted. Responses received after the initial requested date, even where an extension had been granted, were considered late.⁵⁴ Nevertheless, a trend of increased timeliness of responses is apparent, with more than 30% of all responses received on time from 2016–17 to 2019, and more than 70% of responses received on time in 2020 and 2021.⁵⁵
In 2018, the PJCHR transitioned to reporting on its work according to calendar, rather than financial, year. As such, the 2016 to 2017 time period covers 18 months from July 2016 to December 2017.
The high number of late responses received in 2018 can be largely attributable to single report entries dealing with numerous legislative instruments.⁵⁶
In 2019, there is a drop in the number of bills both introduced and attracting PJCHR comment. This is because a federal election was held, which impacted the number of bills introduced that year, and the number of scrutiny reports the PJCHR could table. Further, the PJCHR did not seek a response in relation to many of the bills commented on because they were being re-introduced. The PJCHR merely reiterated its earlier comments.
From September 2019, the PJCHR resolved to only comment substantively on private members' bills where information suggested that they would proceed to further stages of debate. This contributed to the reduction in the number of requests for responses from that year.

The timeliness (and fulsomeness) of responses to the PJCHR is the responsibility of individual proponents of legislation. However, this trend of significantly increased responsiveness arguably reflects that the legitimacy of the PJCHR's processes—its role, questions, and advice to parliament—appears to have gradually gained acceptance by parliamentarians, as the PJCHR has progressively established itself. Consequently, the necessity for ministers to engage with the PJCHR's processes by responding substantively to its questions in a timely way—while not universal—appears to have progressively become the expected norm.⁵⁷ As noted, since 2016, the PJCHR's comments on new bills have been available for parliamentarians to consider while a bill is before the parliament in over 90% of cases, and since 2020, 100% of legislative instruments have been considered within the disallowance period.

The PJCHR's impact

Assessing impact

Assessing the PJCHR's impact is important in understanding whether the PJCHR has been effective in achieving its aims. The PJCHR's core legislated function is to examine all Commonwealth bills and legislative instruments for compatibility with human rights.⁵⁸ When the Human Rights (Parliamentary Scrutiny) Bill was introduced in 2010, the then
Attorney-General the Hon Robert McClelland stated that the new PJCHR was 'designed to improve parliamentary scrutiny of new laws for consistency with Australia's human rights obligations and to encourage early and ongoing consideration of human rights issues in policy and legislative development'⁵⁹ The then Shadow Attorney-General, the Hon George Brandis KC, while disagreeing on the definition of 'human rights', noted that expanding parliamentary scrutiny of legislation from a human rights point of view 'has the advantage of locating greater emphasis on human rights at the heart of the political system itself'.⁶⁰ Mr Graham Perrett MP, who would go on to become a long-serving committee member, stated that the PJCHR would 'have a very powerful gate-keeping and scrutiny role', helping to ensure that Australian laws reflect human rights obligations, and 'tighten[ing] the parliament's focus on human rights'.⁶¹ When the PJCHR was formally established in 2012, inaugural Chair Mr Harry Jenkins MP, stated that the PJCHR had been established 'as part of a concerted effort to enhance the understanding of, and respect for, human rights issues and to ensure the appropriate recognition of human rights in the legislative process'.⁶²

Numerous commentators have considered the extent of the PJCHR's impact when measured against certain factors. For example, Professor George Williams and Daniel Reynolds have twice, in 2015 and 2020, analysed the impact of the PJCHR, gauging it in terms of its deliberative, legislative and media impacts, and its impact on judicial output.⁶³ Dr Laura Grenfell and Dr Sarah Moulds have analysed the extent of the PJCHR's success by reference to: the adequacy of time to conduct formal parliamentary scrutiny; the attributes of particular committees that lead to greater legislative influence; the power and willingness of committees to facilitate public input; a culture of respect for the value of formal parliamentary scrutiny including rights scrutiny; and the generation of a rights discourse in parliamentary debates.⁶⁴

Several studies have considered that there are many challenges associated with assessing the practical 'effectiveness' of parliamentary committees more broadly.⁶⁵ As Meg Russell and Megan Benton have observed in the British context, 'much of [p]arliament's influence is subtle, largely invisible and frequently even immeasurable'.⁶⁶ In the Australian context, Dr Sarah Moulds has recently considered the capacity for Australian parliamentary committees to have a hidden influence on the development of legislation, not necessarily remedying rights concerns, but in a rights-enhancing manner.⁶⁷

This paper does not traverse the ground already trodden by others in attempting to define the yardstick by which a parliamentary committee may be considered to be effective. Rather, it highlights some specific examples of the PJCHR's impact, some of which is acknowledged, some unacknowledged, and some being examples of the hidden influence on the development of legislation. These examples help to demonstrate that the PJCHR's impact is most readily apparent where:

its comments have been explicitly acknowledged and addressed in re-drafted legislation and explanatory materials
its advice has been raised in parliamentary debates and motions, media commentary, or other committee inquiries
its in-depth public inquiries into legislation (which include engagement with civil society, the public, and academia) have resulted in significant legislative change and media coverage.

Some of these case studies demonstrate that it can often be challenging to identify the PJCHR's impact on face value, without very close monitoring of the progress of legislation over time, or a detailed knowledge of its passage through both chambers of parliament. This can often be because while aspects of the PJCHR's concerns may in fact be addressed by amendments or future legislation or policy, the PJCHR's role and influence in causing those amendments to be made is not always explicitly acknowledged. In such instances, the PJCHR may have an important impact on the re-drafting of legislation, but without any specific acknowledgment given as to the role of the PJCHR.

It is noteworthy that many of these case studies highlight the PJCHR's impact on the development of legislative instruments, despite them being a small part of the PJCHR's work. One reason for legislative instruments constituting such a considerable portion of the 'success stories' arising from the PJCHR's work may be because officials can fairly readily amend or re-make legislative instruments and their explanatory statements, meaning that changes in response to the PJCHR's comments are more likely. On the other hand, once bills are introduced to parliament, changes are often less likely.

As the following 7 case studies demonstrate, the PJCHR's impact is most readily apparent where its influence has been explicitly acknowledged in terms of: decisions to amend legislative instruments and bills; mentions in debates and motions in the parliamentary chambers; and references in submissions to other parliamentary committees, and the reports and recommendations of other parliamentary committees.

For example, since 2019, the PJCHR has twice resolved to inquire into legislative instruments (by calling for submissions and holding hearings) as part of its normal scrutiny function. Both inquiries have had tangible impacts.

Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019⁶⁸

The legislative instrument

The Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019 (the instrument) made under the authority of the Aged Care Act 1997 (Cth), regulated the use of physical and chemical restraints in aged care.⁶⁹

The process

The instrument was registered on the FRL on 2 April 2019, taking effect from 1 July. In May and July, the PJCHR received correspondence from Human Rights Watch and the Office of the Public Advocate (Victoria) asking it to consider numerous human rights concerns in relation to the instrument.⁷⁰ In July 2019 the PJCHR resolved to inquire into the instrument, holding a public hearing and receiving 17 submissions.

To ensure that the instrument remained open to disallowance during the inquiry (and therefore subject to parliamentary control), on 16 September 2019 on behalf of the PJCHR, Senator Nick McKim lodged a protective notice of motion to disallow the instrument in the Senate. This extended the period by which the instrument was subject to disallowance by a further 15 sitting days. The PJCHR published its inquiry report on 13 November 2019.

The findings

The PJCHR recommended that the use of restraints in residential aged care facilities be better regulated, including by exhausting alternatives to restraint; taking preventative measures and using restraint as a last resort; obtaining or confirming informed consent; improving oversight of the use of restraints; and having mandatory reporting requirements for the use of all types of restraint.⁷¹

The impact of the inquiry

The PJCHR's inquiry and findings received stakeholder coverage — Numerous stakeholders published articles highlighting the PJCHR's inquiry and findings,⁷² and Human Rights Watch highlighted the inquiry in its in civil society submission to the United Nations as part of Australia's third Universal Periodic Review in 2021.⁷³

The government responded formally to the PJCHR's inquiry — The government welcomed the PJCHR's inquiry, indicating in-principle support for all of the majority recommendations.⁷⁴

The legislative instrument was amended — In response to the PJCHR's report, the government introduced amendments to the Quality of Care Principles to make it clear that restraint must be used as a last resort, refer to state and territory laws regulating consent and require a review of the first 12 months operation of the new law.⁷⁵ This review, finalised in December 2020, made several recommendations, including to clarify consent requirements, strengthen requirements for alternative strategies, require an assessment of the need for restraint in individual cases and for monitoring and reviewing the use of restraint.⁷⁶

The Royal Commission into Aged Care Quality and Safety (the Royal Commission) recommended consideration of the PJCHR's findings — The Royal Commission considered the use of restrictive practices. The final report of the Counsel Assisting the Commission recommended new requirements for regulating the use of restraints and that this should be informed by 3 things, one of which was the PJCHR's 2019 inquiry report.⁷⁷

New legislation was subsequently introduced — Following the Royal Commission's recommendations, legislation was introduced that provides that restraints may only be used in aged care facilities: as a last resort; after considering all alternative strategies; to the extent necessary and proportionate; in the least restrictive form and for the shortest time; and after informed consent is given. It also provided that the use of a restrictive practice must be monitored and reviewed.⁷⁸

ParentsNext: examination of Social Security (Parenting payment participation requirements – class of persons) Instrument 2021⁷⁹

The legislative instrument

The Social Security (Parenting payment participation requirements – class of persons) Instrument 2021 (the instrument), made under the authority of the Social Security Act 1991 (Cth), specified the class of persons subject to compulsory participation in the ParentsNext program (which may require that a person: attend playgroups; complete further education and training; or address non-vocational barriers to employment such as through counselling or health appointments).⁸⁰ A failure to attend these appointments without a reasonable excuse could result in the person's parenting payments being suspended and, if there was a persistent failure, reduced or cancelled.

The process

The PJCHR tabled its initial consideration of this instrument in Report 2 of 2021 on 24 February 2021, seeking a response from the minister.⁸¹ The minister provided the PJCHR with further information on 11 March, including advising the PJCHR that 18% of participants in the ParentsNext program are Indigenous Australians, one-third of all participants have had their parenting payments suspended for an average of 5 days, and 1,072 participants have had their payments cancelled. Based on this additional information, the PJCHR resolved to undertake a short inquiry into the instrument, seeking evidence from key stakeholders on the human rights implications of the instrument.⁸²

To extend the period by which the instrument was subject to parliamentary control, former Senator Pat Dodson, on behalf of the PJCHR, lodged a protective notice of motion to disallow the instrument in the Senate on 11 May 2021.⁸³ This extended the period by which the instrument was subject to disallowance by a further 15 sitting days (to 11 August). The PJCHR received 39 submissions and held a public hearing in June 2021, taking evidence from a range of community organisations, peak bodies, academics and the Department of Education, Skills and Employment. It tabled its final report on 4 August 2021.⁸⁴

The findings

The PJCHR's report contained an extensive consideration of the key issues raised by witnesses and submitters regarding how the ParentsNext program operated in practice. It also contained an in-depth analysis of the compatibility of the measure with human rights, including an analysis of the requirements of the rights to social security and an adequate standard of living. The PJCHR recommended that a class of persons not be prescribed for the purposes of paragraph 500(1)(ca) of the Social Security Act 1991 (Cth), or alternatively recommended a number of amendments if ParentsNext were to remain compulsory.

The impact

The PJCHR's inquiry received substantial media coverage — The evidence presented to the PJCHR, and its findings, received media and stakeholder coverage.⁸⁵

A motion to disallow 2 sections of the instrument was debated and voted on — On completion of its inquiry, the PJCHR resolved to withdraw its notice of disallowance, leaving the issue of disallowance to the parliament. However, Senator Pat Dodson took the opportunity to take over the disallowance notice in his personal capacity (and not as a committee member). This motion to disallow was moved on 11 August 2021 (the final day to disallow the instrument). Senator Dodson spoke to the motion, stating:

The committee's unanimous findings are that there is a considerable risk that the compulsory participation in the ParentsNext program impermissibly limits human rights, including the rights of the child, and that the program's financial sanctions mean that a considerable portion of parents are unable to meet their basic needs and those of their children. They are strong findings that cannot be ignored. The committee's unanimous recommendation was that the ParentsNext program be made voluntary for parents of children under the age of six. In seeking to disallow this instrument, Labor is giving effect to this bipartisan recommendation.⁸⁶

Former Senator Rachel Siewert also spoke to the motion, arguing that the evidence presented in this inquiry and previous inquiries indicated that the benefits of the program did not outweigh its immediate and long-term harms, and noting that the PJCHR had found that it limited human rights.⁸⁷ The motion was subsequently put to a vote. The Senate was equally divided, with 16 ayes and 16 noes.⁸⁸ As such, the question was negatived and the 2 sections of the instrument were not disallowed.⁸⁹ At the dissolution of the 46th Parliament on 11 April 2022, no government response to the PJCHR's inquiry had been received.

Further commentary by parliamentarians — Several parliamentarians circulated media releases about the PJCHR's findings, and the vote seeking to disallow elements of the instrument.⁹⁰

In the following case study, the human rights concerns raised by the PJCHR were addressed by amendments made to a bill following its re-introduction in the new parliament:

Crimes Legislation (Police Powers at Airports) Bills 2018 and 2019⁹¹

The bill

The Crimes Legislation (Police Powers at Airports) Bill 2019 (now Act) proposed to amend the Crimes Act 1914(Cth) to introduce new powers at major airports, including the power for constables and protective service officers (PSOs) to give directions to persons to provide identification documents, move-on (including vacating the airport), or stop (including directing them not to take a flight).

The process

The 2018 bill was introduced into the House of Representatives on 12 September 2018. It was referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) the following day for inquiry and report. The PJCHR reported on the bill on 16 October 2018, raising concerns that the proposed powers for constables and PSOs to give directions for persons at major airports to provide identification, move-on, or stop, limited several human rights, particularly the right to assembly.⁹² The PJCIS reported on 13 February 2019, raising similar concerns and recommending that the bill be amended to ensure that the move-on powers did not interfere with the right to peaceful assembly, or give police the ability to use the powers to disrupt or quell a protest that is peaceful and does not disrupt the safe operation of an airport. The bill lapsed at the dissolution of Parliament on 11 April 2019.

The bill was re-introduced at the commencement of the next parliament, on 4 July 2019, and the reintroduced bill included a provision making it clear that the powers provided that safeguarding the 'public order and safe operation' of a major airport does not apply, by itself, to persons 'exercising their right to lawfully engage in advocacy, protest, dissent or industrial action'. The PJCHR briefly reported on this new bill and welcomed the changes that addressed its earlier concerns (shared by the PJCIS).

The impact

The PJCHR's concerns were addressed in subsequent amendments to the bill — In the second reading speech on the Crimes Legislation Amendment (Police Powers at Airports) Bill 2019, the Minister for Home Affairs, and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, noted that the bill had been considered by numerous parliamentary committees, and that the amendments incorporated were consistent with the views expressed by the PJCHR.⁹³

The PJCHR's comments informed parliamentary debate on the bill — Senator Nick McKim drew extensively on the PJCHR's comments, in voicing opposition to the bill.⁹⁴

There have also been instances in which the PJCHR's comments on a bill have influenced other Senate committees (and their submitters) conducting a concurrent inquiry into the legislation:

Data Availability and Transparency Bill 2020 (2022)⁹⁵

The bill

The Data Availability and Transparency Bill 2020 (2022) (now Act) sought to establish a legislative framework to: facilitate the sharing of public sector data held by Commonwealth bodies with accredited entities; facilitate controlled access to such data; and establish a National Data Commissioner.

The process

The bill was introduced into the House of Representatives on 9 December 2020 (the second last sitting day of the year). In the first parliamentary sitting week of 2021, the bill was referred to the Senate Standing Committee on Finance and Public Administration (the F&PA committee) for inquiry and report by 29 April 2021.

On 24 February 2021, the PJCHR tabled a detailed initial consideration of the bill, seeking further information from the minister in response to 10 specific questions about the compatibility of various provisions with the right to privacy.⁹⁶ The PJCHR published its final consideration of the bill on 31 March, taking into consideration the additional information provided by the minister. The PJCHR advised parliament that it retained concerns that the proposed scheme may not constitute a proportionate means by which to achieve its stated objectives, and recommended specific amendments to improve the bill's compatibility with the right to privacy. The F&PA committee tabled its inquiry report one month later, dedicating an entire chapter of its report to the PJCHR's consideration of the bill.⁹⁷ It likewise recommended that consideration be given to whether amendments could be made to the bill, or further clarification added to the explanatory memorandum, to provide additional guidance regarding privacy protections, particularly in relation to the de-identification of personal data.⁹⁸

The impact

The PJCHR's analysis directly informed a concurrent bill inquiry — the PJCHR's technical analysis of the bill featured extensively in the F&PA committee's inquiry, informing the development of one of its recommendations.

The PJCHR's comments were referenced in debate on the bill — The Minister for Employment, Workforce, Skills, Small and Family Business noted that the PJCHR's comments (and those of other committees) had been carefully considered, and amendments had been introduced in response.⁹⁹

Numerous amendments to the bill were introduced in the House of Representatives — As passed by both houses in March 2022, the bill contained 251 government amendments that were partly in response to concerns raised by the PJCHR. The supplementary explanatory memorandum stated that the amendments clarify and strengthen privacy protections, and include several privacy enhancing measures, including data minimisation requirements and a starting position that data shared under the Scheme must not include personal information unless an exception applies.¹⁰⁰ In particular, the 2022 bill introduced a general complaints division, which allows members of the general public to make complaints to the Commissioner about the operation and administration of the Scheme. This amendment reflects the PJCHR's recommendation that a mechanism be established to enable the Commissioner to consider complaints from individuals with respect to the Scheme.

In the following case study, the PJCHR's comments led to a legislative instrument being replaced to seek to address its human rights concerns (and those of another scrutiny committee):

Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021¹⁰¹

The legislative instrument

The Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021 (the instrument) was registered on the FRL on 27 July 2021.¹⁰² It excluded work for specified employers (who may pose a risk to the health and safety of workers) from counting towards eligibility for a second or third working holiday visa. It also gave the minister the power, by a future legislative instrument, to publicly list such employers in a legislative instrument if the minister is satisfied the employer, or work, poses a risk to safety or welfare.

The process

The PJCHR initially reported on this legislative instrument on 25 August 2021, stating that specifying individual employers on a public list on the basis that they may pose a health and safety risk to prospective employees engaged and limited the right to privacy and reputation. The PJCHR sought the minister's advice in respect of 6 questions, in order to establish whether the measure was sufficiently circumscribed and contained sufficient safeguards to constitute a proportionate limit on rights. The minister's response was received on 30 September, and the PJCHR concluded its consideration in Report 12 of 2021, on 20 October 2021.¹⁰³

The findings

While the PJCHR considered that the measure pursued a legitimate objective, concerns remained regarding proportionality. In particular, noting the breadth of the minister's discretion to include employers on the list, the lack of independent merits review, the power to include individual names, and the public accessibility of the list, the PJCHR considered the measure risked being a disproportionate limit on the right to privacy. The PJCHR suggested a number of amendments to the legislative instrument to assist with proportionality, including that the process of making a decision to include an employer on the list be set out in the instrument, including that written reasons be provided to the employer and the employer have a right of reply. The PJCHR also recommended that the statement of compatibility with human rights be updated to reflect the information provided by the minister.

The impact

The regulation was replaced — On 4 March 2022, the minister registered a new legislative instrument to replace this instrument.¹⁰⁴ The explanatory materials to the new instrument noted that 'in response to concerns raised by both the PJCHR and the Senate Standing Committee for the Scrutiny of Delegated Legislation, the Government considers it appropriate to include a procedural fairness mechanism in the Migration Regulations themselves'.¹⁰⁵

Aspects of the PJCHR's concerns were addressed in the new regulation — The Regulation was amended to include a procedural fairness mechanism, requiring that before specifying a person, partnership or unincorporated association [as an 'excluded' employer], the minister would be required to advise that employer in writing of his/her intention to do so, and the reasons, giving them at least 28 days to make a written submission to the minister about the proposed specification.

There are also instances in which the PJCHR's comments have explicitly been taken into consideration in the progress of bills which have been introduced into the parliament (and the making of related legislative instruments), and the PJCHR's role has been acknowledged:

Sydney Harbour Trust Regulations¹⁰⁶

Background

In 2010 (2 years before the PJCHR was created), the Sydney Harbour Federal Trust Regulations 2001 (the Regulations) were (re)made under the authority of the Sydney Harbour Federation Trust Act 2001 (Cth). This instrument regulated conduct on land belonging to the Sydney Harbour Trust (the Trust),¹⁰⁷ including establishing a blanket ban on organising or participating in a 'public assembly' (including a meeting, demonstration, or performance) on Trust land without a licence or permit. This instrument was due to cease effect (or 'sunset') on 1 October 2019. However, in September 2019, the Legislation (Deferral of Sunsetting—Sydney Harbour Federation Trust Regulations) Certificate 2019 (Certificate) was registered. This short legislative instrument deferred that earlier sunset date by 2 years, meaning that the legislative instrument would continue to have effect until 1 October 2021.

The process

The PJCHR assessed the deferral of sunsetting instrument and noted that the explanatory materials accompanying it failed to acknowledge that the measure engaged any human rights.¹⁰⁸ The PJCHR wrote to the Attorney-General in February 2020 asking for more information about the broad prohibition of public assemblies, and the impact on the rights to freedom of expression and assembly. The Attorney-General responded on 3 March, noting that the Regulations would be subject to a separate independent review process.¹⁰⁹ The PJCHR urged the Attorney-General to give close consideration to the concerns it raised in reviewing the Regulations.¹¹⁰

One year later, on 18 March 2021, the Sydney Harbour Federal Trust Amendment Bill 2021 was introduced. The explanatory memorandum accompanying the bill (now an Act) stated that the Regulations that would be made under its authority were anticipated to be 'remade with minor changes to their operation'. The PJCHR therefore wrote to the new responsible minister—the Minister for Agriculture, Water and the Environment—seeking their advice as to whether the blanket prohibition on public assemblies was intended to be retained.¹¹¹ The minister advised that the Regulations had originally been drafted to protect the public from the hazards of un-remediated sites in the Trust, and that to address the PJCHR's concerns it was intended for the Regulations to be amended 'to be more explicitly compatible with the right of peaceful assembly'.¹¹²

A new regulation was subsequently registered on 18 September 2021.¹¹³ It provided that a public assembly is lawful without the need for Trust approval, introducing a requirement that organisers merely advise the Trust of their intention to assemble.¹¹⁴

The impact

The PJCHR's comments on the Sydney Harbour Federal Trust Amendment Bill 2021 informed debate — Mr Josh Wilson MP noted the PJCHR's comments in debate on the bill, arguing that the prohibition on public assemblies went against basic principles and was contrary to the 'recent history and tradition of Cockatoo Island'.¹¹⁵

The new Regulation altered the blanket prohibition on public assemblies — When assessing the new Regulation the PJCHR noted that the new Regulation provided that a public assembly is lawful, provided that organisers advise the Trust of their intention to assemble.¹¹⁶ The PJCHR retained some concern about the retention of a potentially broad power to prohibit peaceful public assemblies, but considered that this amendment represented a substantial improvement on the previous Regulation.¹¹⁷

The new Regulation explicitly acknowledged the PJCHR's impact on the re-drafting — The statement of compatibility with human rights set out the PJCHR's previous comments regarding the compatibility of the measure with the rights to freedom of expression and assembly, stating that the amendments to the Regulations were made in response to those concerns.¹¹⁸

There have been cases in which parliamentarians and submitters to other committee inquires have utilised the PJCHR's comments:

Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015¹¹⁹

The bill

The Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015 (the bill) sought to amend the Migration Act 1958 (Cth) to allow an authorised officer to use such reasonable force as they reasonably believed necessary to protect the life, health or safety of any person in an immigration detention facility or to maintain the good order, peace or security of an immigration detention facility.

The process

The bill was introduced into the House of Representatives on 25 February 2015. It was referred to the Senate Legal and Constitutional Affairs Legislation Committee
(LCA committee) on 5 March. On 18 March, the PJCHR reported that the use of force powers engaged and limited a number of human rights, including the right to life; the prohibition against torture and cruel, inhuman or degrading treatment; the right to humane treatment in detention; and the right to freedom of assembly, and additionally noted concerns regarding proposed immunities. It set out various concerns about the lack of safeguards in the bill and sought further advice from the Minister for Immigration and Border Protection.

Submissions to the LCA committee inquiry closed on 7 April, and it reported on the bill on 5 June. The PJCHR published its concluding comments on the bill on 23 June. Several amendments were moved to the bill by non-government members and senators regarding the safeguards around the use of force, and the bill lapsed on 17 April 2016 on the prorogation of the parliament and was not re-introduced.

The impact

The PJCHR's human rights concerns were endorsed by numerous submissions to the LCA committee inquiry and reflected in the LCA committee report — the LCA committee report stated that a number of submissions referred to and endorsed the concerns raised by the PJCHR.¹²⁰ For example, the Kaldor Centre for International Refugee Law and the Gilbert + Tobin Centre of Public Law's submission referred extensively to the PJCHR's report and, when setting out the human rights impact of the bill, referred the LCA committee to the analysis by the PJCHR for a more detailed analysis of the rights implications of the bill.¹²¹ The Law Council of Australia noted and commended the consideration of the bill by the PJCHR and noted that its constituent bodies that considered the bill, the Law Institute of Victoria and the Law Society of NSW, agreed with the PJCHR's conclusions. Its submission quoted extensively from the research presented in the PJCHR's reports, and its recommendations reflected the issues raised by the PJCHR.¹²² Further, the Australian Lawyers for Human Rights' submission made extensive reference to the PJCHR's report and agreed with the concerns expressed.¹²³

The PJCHR's concerns were referenced in debate on the bill — The PJCHR's report, and the submissions to the LCA committee inquiry, were quoted in parliament during debates on the bill in both the House and the Senate.¹²⁴

The following 5 case studies illustrate that the PJCHR's influence on the development of legislation may not always be readily apparent. In some cases, the PJCHR's concerns have been addressed (in whole or part) by amendments or future legislation or policy without explicit reference to the PJCHR's consideration of the legislation. In such cases, discerning the PJCHR's influence may require very close monitoring of the progress of legislation over time, or an intimate knowledge of its passage through both chambers of parliament.

In the following example, the influence of the PJCHR's recommendations on the drafting and re-drafting of legislation and explanatory materials (including statements of compatibility with human rights) only becomes clear with careful review:

Australian Security Intelligence Organisation Amendment Bill 2020¹²⁵

The bill

On 13 May 2020, the Australian Security Intelligence Organisation Amendment Bill 2020 (the bill) was introduced into the House of Representatives. It sought to repeal and replace the Australian Security Intelligence Organisation's (ASIO) compulsory questioning framework, including amending the provisions related to questioning warrants. This framework: provided for the apprehension of subjects; would require a subject to attend questioning and provide information, and/or produce records or things; and provided for the search of a person and entry to premises. The proposed measures engaged a significant number of human rights, including the rights to: liberty; freedom of movement; humane treatment in detention; privacy; fair trial; freedom of expression; as well as the rights of the child and the rights of persons with disability.

The process

The day this bill was introduced into the House of Representatives, the provisions of the bill were referred to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) for report (meaning that the bill would not proceed to debate prior to that report being tabled, which ultimately occurred in December 2020). On 17 June, the PJCHR reported its initial consideration of this bill, noting the many human rights questions that the proposed measures raised, and seeking responses to 51 specific questions. The minister's 38-page response was received on 9 July, in which the minister advised that a number of safeguards would be set out in a statement of procedures to be made by legislative instrument. The PJCHR then reported its extensive concluded findings on the bill on 18 August. In some respects, it considered that the additional information provided by the minister satisfied its human rights concerns. In other instances, it offered specific recommendations to improve the human rights compatibility of the bill (and further recommendations were set out in a dissenting report).

The PJCIS tabled its report on the bill on 3 December 2020.¹²⁶ The bill subsequently passed both houses of parliament in a single day, on 10 December 2020 (the final sitting day of the year). Fourteen days later, on 24 December 2020, the Australian Security Intelligence Organisation (Statement of Procedures) Instrument 2020 (made under s 34AF of the Australian Security Intelligence Organisation Act 1979 (Cth)) was registered.¹²⁷

The impact

At first glance, the PJCHR's comprehensive consideration of the human rights implications of this bill (and its many recommendations) appeared to have little tangible impact. The PJCIS did not acknowledge the PJCHR's comments in its own report despite raising similar concerns,¹²⁸ and the PJCHR's concerns received minimal coverage in the media. Further, when multiple amendments were made to the bill to address the PJCIS's recommendations one week after its report had been tabled,¹²⁹ and when the bill was then introduced into the Senate, the PJCIS's recommendations were noted but the PJCHR's consideration of the bill was not.¹³⁰

On closer inspection, however, the PJCHR's recommendations would appear to have been considered and, in numerous respects, given effect:

Numerous recommendations made by the PJCIS, which directly addressed some of the PJCHR's concerns, were implemented — These included providing that the best interests of the child would be a primary consideration in decisions involving minors and strengthening oversight by the Inspector-General of Intelligence Services.¹³¹ Then PJCHR Chair, Senator the Hon Sarah Henderson, drew the PJCHR's recommendations and these amendments to the attention of the Senate.¹³²

The statement of compatibility with human rights to the bill was expanded as the PJCHR recommended — If the original statement of compatibility to the bill is compared with the revised statement of compatibility¹³³ following amendments made to the bill on 10 December, it can be seen that the statement has been expanded to include an analysis of specific human rights issues as flagged by the PJCHR, including reflecting that: the best interests of the child are to be a primary consideration; both body searches and forced entry to private premises engage and limit the right to privacy; and limitations on leaving Australia engage and limit the rights to freedom of movement and protection of the family.

The Statement of Procedures to be followed in the exercise of questioning powers (a legislative instrument) incorporated many of the PJCHR's recommendations — The bill empowered the Minister for Home Affairs to make a Statement of Procedures in the form of a legislative instrument. The PJCHR was advised that this was intended to include more detailed guidance as to how questioning could be conducted, and many safeguards to protect human rights. As the document did not exist at the time of the PJCHR's report, the PJCHR could not assess the potential safeguard value of such a document. As such, the PJCHR made numerous recommendations for what additional safeguards should be included in such a document. When the legislative instrument was registered on 24 December 2020,¹³⁴ it included many of the safeguards that the PJCHR had recommended, including specific protections where the subject of a warrant has a known vulnerability such as a disability, and requirements for the conditions of the questioning environment itself.

In some cases, the PJCHR's influence on the development of legislation has taken place over a lengthy period. In the following case study, the PJCHR's previous comments had not been explicitly acknowledged in the explanatory materials accompanying the most recent instrument. As such, it would be challenging to have identified the PJCHR's impact on its development over that lengthy period without an understanding of the historical involvement:

Australian Public Service Commissioner's Directions¹³⁵

The legislative instruments

The Australian Public Service Commissioner's Directions 2013 (the 2013 Directions) prescribe the minimum standards with which agency heads and Australian Public Service (APS) employees must comply to meet their obligations under the Public Service Act 1999 (Cth), and support agency heads to fulfil their responsibilities in respect of their employer powers. The 2013 Directions require agency heads to notify certain employment decisions in the Australian Public Service Gazette. Historically they required the publication of decisions to terminate a public servant's employment and the grounds for termination on a public website.

The process

The PJCHR engaged in an ongoing dialogue with the executive regarding the compatibility of various iterations of these Directions. The PJCHR first sought clarification in 2013 as to why it was necessary to publish employment decisions in the Public Service Gazette, including publication of decisions to terminate a public servant's employment and the grounds for termination on a public website (this could include setting out that employment was terminated on mental health grounds, which the PJCHR noted engaged the right to privacy and to equality and non-discrimination). In response, the APS Commissioner stated that they would review these powers.¹³⁶

Following that review, the 2013 Directions were amended in 2014. The explanatory materials to the amending legislative instrument acknowledged the PJCHR's concerns about the power to publish decisions, stating that in response to the PJCHR's concerns the 2013 Directions were being amended to remove most of the requirements to publish termination decisions.¹³⁷ However, the requirement to publicly publish a termination on the grounds of a breach of the Code of Conduct was retained.

The PJCHR further considered this requirement in subsequent reports in 2015, concluding that publishing this information on a publicly accessible website was not a proportionate limit on the right to privacy, as there were other less rights restrictive methods available (such as internal record-keeping).¹³⁸ The PJCHR raised similar concerns in 2016, in response to which the APS Commissioner again undertook to review the necessity of publicly notifying termination information.¹³⁹ Following that review, the legislative instrument was re-made, ultimately addressing the PJCHR's privacy concerns.¹⁴⁰

The impact

The Directions were amended several times over 8 years in response to the PJCHR's concerns — They were initially amended in a way that much better protected privacy and rights of persons with disabilities. They were then later improved more broadly.

The most recent Directions addressed the PJCHR's long-held privacy concerns — The APS Commissioner's Directions 2022 included a new exception so that an employee's name may not be included in a notification for an employment termination for breach of the Code of Conduct if including the name is not necessary to ensure public confidence in the integrity of the APS.¹⁴¹ This amendment addressed the privacy concerns the PJCHR had been raising since 2014 and thus the PJCHR did not comment on these Directions.

In the following case study, the PJCHR's consideration of legislative instruments to provide for the imposition of sanctions on individuals received media coverage and arguably led to improvements to statements of compatibility with human rights:

Autonomous Sanctions and Charter of the United Nations designations or listings¹⁴²

The legislation

Under the Autonomous Sanctions Regulations 2011 and the Charter of the United Nations Act 1945 (Cth) the Minister for Foreign Affairs may designate or list a person (in a legislative instrument) as subject to sanctions. Such a listing or designation results in an individual's assets being frozen and the cancellation of any visa, and a ban on travel. Since 2013, the PJCHR has drawn attention to the human rights implications of such executive decisions, which can operate variously to both promote and limit rights. If sanctions are placed on persons to whom Australia owes human rights obligations (usually those located in Australia), this could operate to limit human rights, particularly the rights to freedom of movement; private life; family life; and a fair hearing. The statements of compatibility accompanying sanctions legislation initially did not recognise that placing sanctions limited any human rights.

The process

In 2013 the PJCHR sought further information as to the human rights implications of the imposition of sanctions. It asked that the Department of Foreign Affairs (the department) conduct a comprehensive review of the sanctions regime in light of Australia's international human rights obligations and report back. In 2013 the then Minister stated that he had instructed the department to carefully consider the PJCHR's recommendation. However, the Minister for Foreign Affairs (the minister) in 2015 advised the PJCHR she considered there was no need to review the sanctions regime. The PJCHR subsequently undertook its own review,¹⁴³ identified the relevant rights that appeared to be impermissibly limited and made a number of recommendations for safeguards to be included in the legislation to better protect rights.¹⁴⁴ The PJCHR continued to raise its concerns and, in 2018, the minister agreed to ask the department to consider whether additional detail regarding the human rights impacts of sanctions could be provided in future statements of compatibility.¹⁴⁵

In 2021, numerous legislative instruments made between 2001 and 2020 imposing sanctions on almost 300 individuals, were tabled. They were classified as exempt from the disallowance process (by which parliament can veto the instrument), and therefore were not accompanied by statements of compatibility. The PJCHR noted that it appeared this was an incorrect classification, and also questioned the validity of the previous listings.¹⁴⁶

The impact

The human rights implications of autonomous sanctions are now better acknowledged in statements of compatibility accompanying legislative instruments imposing sanctions — Prior to the PJCHR's work, statements of compatibility with human rights did not reflect a consideration as to the human rights implications of the imposition of sanctions on individuals. While the legislation has not yet been amended to contain the safeguards recommended by the PJCHR, the quality of statements of compatibility accompanying such legislative instruments have improved, with such statements now regularly acknowledging that rights may be limited.¹⁴⁷

The PJCHR's concerns received media coverage — In addition, flowing on from the PJCHR's consideration of those instruments which were not registered over a period of 20 years, the PJCHR's concerns were quoted in a media report.¹⁴⁸ On 2 August 2021 the instruments were updated to reflect that they were subject to disallowance, and statements of compatibility were prepared for all instruments. On 11 August 2021, a bill was introduced to validate any actions taken under the earlier listings.¹⁴⁹

The PJCHR continues to note its concerns about the sanctions regime by listing any such legislative instruments that have been registered within the reporting period, but where it does not appear the individuals subject to designation or listing are in Australia it makes no further comment on individual listings.¹⁵⁰

In addition to the PJCHR's consideration of bills and legislative instruments through its scrutiny and inquiry reports, the PJCHR has also influenced the development of legislation behind the scenes.

As noted earlier, the PJCHR Chair initially took the lead on liaising with departments and ministers to provide feedback on the drafting of statements of compatibility with human rights. In 2013 and 2014, where inadequacies in statements of compatibility were identified, the Chair sent advisory letters to legislation proponents to provide guidance on the preparation of, and requirements for, statements of compatibility.¹⁵¹ From June 2018, the PJCHR undertook a project to improve statements of compatibility by further explaining the PJCHR's expectations, underpinned by the legal requirements, as to their content and information as to how they could be improved. This included liaising with legislation proponents and government departments about areas of concern, supplementing and developing further guidance materials and resources to assist in the preparation of statements of compatibility and providing targeted training to departmental officials regarding the PJCHR's expectations. It also involved preliminary discussions to explore options for collaboration with the Attorney-General's Department, in relation to guidance materials, as well as the Australian Human Rights Commission.¹⁵² This process lapsed at the end of the 45th Parliament in mid-2019. In the 46th Parliament, in September 2021, the PJCHR resolved that its secretariat should, where it considered it appropriate, engage directly with relevant departments immediately after the legal adviser and secretariat have identified minor, technical human rights concerns with legislative instruments, in an attempt to resolve the matter before involving the minister or PJCHR by reporting on the legislation publicly. This was intended to help departmental officials understand the type of information that should be included in a statement of compatibility. Further, where a statement of compatibility was considered to be inadequate (but where it nonetheless did not appear that the legislation raises human rights concerns), the PJCHR authorised the Committee Secretary to write to departmental officials setting out the PJCHR's expectations for future reference. The PJCHR in the 47th Parliament has also endorsed the PJCHR's secretariat undertaking this informal engagement.

Providing feedback in this manner in relation to bills facilitates the PJCHR's educative function, providing departments with information to inform future such drafting. In relation to legislative instruments (and their explanatory materials), this feedback can be incorporated directly by departmental officers, because legislative instruments can often be amended and updated by departmental officers or other delegates directly.

Between September and December 2021, the secretariat liaised directly with departments in relation to a number of bills and legislative instruments. In one case, this resulted in a large department updating its internal guidance for preparing statements of compatibility, and inviting the Committee Secretary to present on the subject at a training session attended by over 70 departmental officers. The approach has also resulted in significant improvements to the explanatory materials accompanying legislative instruments, as well as fostering the PJCHR's positive educative relationship with departments:

Instruments amending the Pharmaceutical Benefits Scheme

Background

Each year, numerous legislative instruments are registered to add, remove or otherwise alter the listing of medications on the Pharmaceutical Benefits Scheme (PBS), which provides for medication subsidies. For some time, the statements of compatibility with human rights accompanying these instruments were largely standard wording noting that the PBS itself promotes the right to health by providing for access to subsidised medication,¹⁵³ but not addressing whether the amendments being made by a specific legislative instrument were taking subsidised medications or medical services away from patients (and so potentially limiting the right to health). As such, it could be difficult to determine the effect of the instrument on its face given the complexity of the PBS and the potential availability of other medications or medical procedures.

Liaison with department

Following the PJCHR's resolution that the secretariat may liaise directly with departmental officers to discuss minor technical human rights concerns, the secretariat contacted the Department of Health (the department) seeking advice about the operation of several PBS instruments. The secretariat advised that it was unclear from the statements of compatibility what the effect of deleting relevant drugs from the PBS would be and asked whether there would be any detriment to patients.

Result

The department swiftly responded, explaining the effect of the relevant instruments and advising that they would amend their statements of compatibility in future to explain how most amendments to the PBS do not affect human rights, but where any drug is to be de-listed entirely, to provide more specific information as to the effect of this on patients. This revised approach has since been observed.¹⁵⁴

Human rights scrutiny of COVID-19 related legislation

The COVID-19 pandemic, and the associated legislative response by the federal Parliament, impacted on the PJCHR's work, both in terms of its influence on committee processes and the types and extent of human rights scrutiny concerns it considered.

Changes to committee processes

In early 2020, as COVID-19 cases continued to emerge in Australia, states and territories progressively introduced lockdown and quarantine measures, which limited the capacity of parliamentarians to physically attend parliament in Canberra. To keep operating effectively while unable to continue its usual practice of meeting in person, the PJCHR resolved to hold its meetings remotely, via teleconference. Further, the PJCHR resolved to:

publish a special scrutiny report focusing on COVID-19 related bills and legislative instruments, with an overview regarding the laws applicable to the protection of human rights in times of emergencies
maintain a list of all bills and legislative instruments made in response to the pandemic (not merely those that raised human rights concerns).¹⁵⁵

To communicate this approach, the PJCHR issued a media release setting out the PJCHR's proposed course of action regarding COVID-19 bills and instruments.¹⁵⁶ It also wrote to civil society stakeholders advising that the PJCHR could accept submissions about a bill or instrument at any time, and drawing their attention to the COVID-19 sub-page on the PJCHR's web pages.¹⁵⁷ Further, the PJCHR wrote to all ministers and heads of departments explaining the PJCHR's scrutiny approach regarding COVID-19 related bills and instruments. The PJCHR also continued to publish its regular scrutiny reports in a timely way, ultimately tabling 15 scrutiny reports in 2020 including one report dedicated to the scrutiny of COVID-19 legislation.¹⁵⁸

Scrutiny of COVID-19 related legislation

The COVID-19 pandemic required governments globally to introduce legislative measures seeking to contain the outbreak and respond to its impacts. In Australia, the Biosecurity Act 2015 (Cth) (the Biosecurity Act) is the primary legislative basis for the Australian government to manage the risk of diseases entering Australian territory and causing harm to human health. It sets out a number of measures that can be taken to prevent a listed human disease from entering, or establishing itself or spreading in, an Australian territory. On 21 January 2020, the Director of Human Biosecurity first added 'human coronavirus with pandemic potential' to the list of human diseases, to allow measures to be taken under the Biosecurity Act to manage and respond to risks to human health caused by the virus.¹⁵⁹ Since that time, numerous legislative instruments made under the Biosecurity Act and other Acts, and numerous Acts were made to respond to the economic, health, social and other impacts of COVID-19.

The PJCHR considered that legislation taken to control the entry, establishment or spread of COVID-19 in Australia was likely to promote and protect the rights to life and health of Australians; and that legislative responses to help manage the impact of the COVID-19 pandemic on jobs and the economy were likely to engage and promote a number of human rights, including rights to work, an adequate standard of living and social security.¹⁶⁰ Equally, it recognised that such legislation could also limit other human rights (in particular, the rights to freedom of movement and liberty, privacy, equality and non-discrimination, and freedom of assembly). This necessitated careful consideration of whether such limitations were permissible under international human rights law.¹⁶¹

One notable aspect of the legislative response to COVID-19 was that many significant responses to the pandemic (including establishing travel bans, entry and exit requirements, and quarantine zones) were dealt with via legislative instruments made under the Biosecurity Act and were exempt from disallowance. This meant that the parliament's primary method of exerting control over delegated legislation was not available. It also meant that the measures were not required to include a statement of compatibility with human rights as part of their explanatory materials.¹⁶² Further, until 16 June 2021, the PJCHR was the sole parliamentary committee able to scrutinise this exempt delegated legislation.¹⁶³ As such, the PJCHR scrutinised many legislative instruments with significant impacts, which did not include a statement of compatibility (and were not required to include one), and so sought further information (largely from the Minister for Health and Aged Care) to establish whether the measures were compatible with human rights law. The ministerial responses and the PJCHR's assessment of these legislative instruments provided greater information about the rationale for, and impact of, each instrument than was otherwise available. This was significant noting that many of these legislative instruments appeared to raise significant human rights questions.

For example, the PJCHR examined numerous legislative instruments were made under the authority of the Biosecurity Act to regulate movement into and out of remote communities:

Legislative instruments restricting movement into (and later, out of) remote communities¹⁶⁴

The legislative instruments

Between 2020 and 2021, 21 legislative instruments were registered, which established or altered emergency requirements for remote communities.¹⁶⁵ These instruments were made under the authority of the Biosecurity Act, designating several geographical areas in Western Australia, Queensland, South Australia and the Northern Territory, and establishing that persons could not enter (and later, could not leave) these areas except in specified circumstances, in an effort to control the entry or spread of COVID-19. Failure to comply with this requirement constituted a criminal offence punishable by 5 years' imprisonment, or a penalty of up to $63,000, or both. Some of the 21 instruments amended those requirements over time, including revoking the requirements in some locations. These legislative instruments were exempt from the disallowance process.¹⁶⁶

The process

In its first scrutiny report dedicated to the examination of COVID-19 related legislation, the PJCHR noted that these measures were intended to prevent the spread of
COVID-19 and so would appear to promote the rights to life and health, but in doing so they may also have limited the right to freedom of movement and the right to equality and non-discrimination (noting that these remote geographical areas appeared to have a high proportion of Indigenous people living there, although this was not specifically addressed in the explanatory materials).¹⁶⁷ The PJCHR therefore asked the Minister for Health and Aged Care (the minister) for further information as to the compatibility of the measures with human rights, particularly the rights to freedom of movement, and equality and non-discrimination. The minister responded on 29 May but failed to provide any information with respect to the limitation on these rights.¹⁶⁸

A further such legislative instrument was registered on 23 April 2020,¹⁶⁹ and the PJCHR again wrote to the minister requesting information as to the compatibility of the measure with human rights, particularly the rights to freedom of movement, and equality and non-discrimination.¹⁷⁰ The minister responded on 9 July, explaining that the measure to control the spread of COVID-19 was necessary owing to the greater health risks to Indigenous Australians should these communities be exposed to the infection. The minister noted that the measure was in place for a specific period. While the PJCHR did note that information about any consultation with affected communities would have been useful, it found that the measures did appear to constitute a permissible limitation on the right to freedom of movement and a permissible limit on the right to equality and non-discrimination.

The impact

Human rights scrutiny available to the parliament — The PJCHR's consideration of the human rights implications of these determinations was the only parliamentary consideration of these instruments, and brought this issue to the attention of the parliament.¹⁷¹

Influence on civil society — The PJCHR's consideration of this legislation also assisted civil society in their understanding of the human rights implications of these measures when making submissions to the COVID-19 Select Committee.¹⁷²

Conclusion

In the first 10 years of its operation, the PJCHR has conducted a significant volume of legislative scrutiny, publishing a substantial number of scrutiny reports and 8 inquiry reports. The PJCHR's operating practices have continued to evolve as the PJCHR has established itself as a fixture of the parliament. As the case studies in this paper have demonstrated, the PJCHR continues to have an impact on the development of legislation, both directly and indirectly, and in educating parliamentarians, the executive, civil society and the public as to the human rights implications of Commonwealth legislation. The PJCHR's role, questions, and advice to parliament appear to have gradually gained acceptance by parliamentarians and the executive, and engagement with its processes appears to have progressively become an expected norm. Parliamentary committees continually evolve as their membership changes and their working practices become more established, and the next decade of the PJCHR will no doubt bring new perspectives, influence and impact.

Reflections on the 10th anniversary of the Parliamentary Joint Committee on Human Rights

Introduction

The work of the PJCHR over 10 years

The PJCHR's educative role

The PJCHR's scrutiny of bills

The PJCHR's scrutiny of legislative instruments

The timeliness of the PJCHR's reports

Speed of legislative passage

Evolving committee work practices

Ministerial responses

The PJCHR's impact

Assessing impact

Quality of Care Amendment (Minimising the Use of Restraints) Principles 201968

The legislative instrument

The process

The findings

The impact of the inquiry

ParentsNext: examination of Social Security (Parenting payment participation requirements – class of persons) Instrument 202179

The legislative instrument

The process

The findings

The impact

Crimes Legislation (Police Powers at Airports) Bills 2018 and 201991

The bill

The process

The impact

Data Availability and Transparency Bill 2020 (2022)95

The bill

The process

The impact

Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021101

The legislative instrument

The process

The findings

The impact

Sydney Harbour Trust Regulations106

Background

The process

The impact

Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015119

The bill

The process

The impact

Australian Security Intelligence Organisation Amendment Bill 2020125

The bill

The process

The impact

Australian Public Service Commissioner's Directions135

The legislative instruments

The process

The impact

Autonomous Sanctions and Charter of the United Nations designations or listings142

The legislation

The process

The impact

Instruments amending the Pharmaceutical Benefits Scheme

Background

Liaison with department

Result

Human rights scrutiny of COVID-19 related legislation

Changes to committee processes

Scrutiny of COVID-19 related legislation

Legislative instruments restricting movement into (and later, out of) remote communities164

The legislative instruments

The process

The impact

Conclusion

Quality of Care Amendment (Minimising the Use of Restraints) Principles 2019⁶⁸

ParentsNext: examination of Social Security (Parenting payment participation requirements – class of persons) Instrument 2021⁷⁹

Crimes Legislation (Police Powers at Airports) Bills 2018 and 2019⁹¹

Data Availability and Transparency Bill 2020 (2022)⁹⁵

Migration Amendment (Subclass 417 and 462 Visas) Regulations 2021¹⁰¹

Sydney Harbour Trust Regulations¹⁰⁶

Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015¹¹⁹

Australian Security Intelligence Organisation Amendment Bill 2020¹²⁵

Australian Public Service Commissioner's Directions¹³⁵

Autonomous Sanctions and Charter of the United Nations designations or listings¹⁴²

Legislative instruments restricting movement into (and later, out of) remote communities¹⁶⁴