Chapter 2
The committee's mode of operation
Overview
2.1
The committee examines and reports on the human rights compatibility of all
bills and legislative instruments that come before the Parliament. Since its
inception, and in keeping with the longstanding conventions of the Senate
scrutiny committees, the committee has sought to adopt a non-partisan,
technical approach to its scrutiny of legislation.
2.2
The committee generally meets when both the House of Representatives and
the Senate are sitting, and has a regular reporting cycle around these
meetings. The committee's reports are tabled after each meeting, and deal with
the bills and instruments of delegated legislation introduced or tabled in the
preceding period.
2.3
The committee seeks to conclude and report on its examination of bills
while they are still before the Parliament, so that its findings may inform the
legislative deliberations of the Parliament. The committee's ability to do so
is, however, dependent on the legislative program of the government of the day
and the timeliness of ministers' responses to the committee's inquiries. Where
a bill is passed before the committee has been able to conclude its
examination, the committee nevertheless completes its examination of the
legislation and reports its findings to the Parliament.
2.4
The committee examines all legislative instruments tabled in the
Parliament, including legislative instruments that are exempt from the
disallowance process under the Legislation Act 2003 (LA).[1]
The committee seeks to conclude and report on its examination of legislative
instruments within the timeframe for disallowance prescribed by the LA (15
sitting days). In the event that the committee's concerns cannot be resolved before
the expiry of this period, the committee may give a 'protective' notice of
motion to disallow the instrument to ensure that the ability of the Parliament
to disallow the instrument is not lost pending the conclusion of the
committee's examination.
The committee's analytical framework
2.5
Australia has voluntarily accepted obligations under the seven core United
Nations (UN) human rights treaties. It is a general principle of international
human rights law that the rights protected by the human rights treaties are to
be interpreted generously and any limitations on human rights are to be
interpreted narrowly. Accordingly, the primary focus of the committee's reports
is determining whether any identified limitation of a human right is
justifiable.
2.6
International human rights law recognises that reasonable limits may be
placed on most rights and freedoms—there are few absolute rights (that is,
rights which cannot be limited in any circumstances).[2]
All other rights may be limited as long as the limitation meets certain
standards. In general, any measure that limits a human right must comply with
the following criteria (the limitation criteria):
-
be prescribed by law;
-
be in pursuit of a legitimate objective;
-
be rationally connected to its stated objective; and
-
be a proportionate way to achieve that objective.
2.7
Where a bill or instrument limits a human right, the committee requires
that the statement of compatibility provide a detailed and evidence-based assessment
of the measures against these limitation criteria.
2.8
As required, the committee takes into account the views of human rights
treaty bodies, as well as international and comparative human rights
jurisprudence. These sources are relevant to the interpretation of the human
rights against which the committee is required to assess legislation.
Statements of compatibility
2.9
The Act requires that each bill and disallowable legislative instrument
be accompanied by a statement of compatibility.[3]
The statement of compatibility serves as the starting point for the application
of the committee's analytical framework, and sets out an assessment of the
extent to which the legislation engages human rights.
2.10
The committee sets out its expectations in relation to statements of
compatibility in its Guidance Note 1.[4]
The scrutiny dialogue model
2.11 The committee's main function of scrutinising legislation is pursued
through dialogue with legislation proponents (usually ministers). Accordingly,
where legislation raises a human rights concern which has not been adequately justified
in the relevant statement of compatibility, the committee's usual approach is
to publish an initial report setting out its concerns, and seeking further
information from the legislation proponent. Any response from the legislation
proponent is subsequently considered and published alongside the committee's
concluding report on the matter. As well as making findings on the human rights
compatibility of the relevant legislation, the committee may make specific
recommendations to ensure the compatibility of the legislation with Australia's
human rights obligations.
2.12 In some cases, ministers may provide an undertaking to address the
committee's concerns in the future (for example, by amending legislation or undertaking
to conduct a review of the legislation in due course).
2.13
The committee does not generally seek public submissions in relation to
its assessments of legislation. However, the committee welcomes correspondence and
submissions from interested parties in relation to specific items of
legislation under consideration, and will take these into account where
relevant to the examination of a particular item of legislation.
Structure of the committee's reports
2.14
The structure of the committee's reports reflects the progress of the
dialogue model described above, with matters proceeding from an initial report
describing the human rights issues and concerns to a concluding report that
takes into account any information received by the legislation proponent in
response to the committee's initial report.
2.15
Chapter 1 of the committee's reports includes new and continuing
matters. This generally includes all bills introduced during the preceding period,
with bills not raising human rights concerns being listed as such, and bills
raising human rights issues being the subject of substantive report entries
setting out the nature of the committee's concerns and the information being
sought from the legislation proponent.[5]
2.16 Chapter 1 also includes the committee's reports on any instruments of
delegated legislation tabled in the preceding period that raise human rights
concerns. Due to the very high volume of delegated legislation examined by the
committee, such instruments are reported on as per an exceptions-based
approach.
2.17
Chapter 1 also considers continuing matters, which are matters in
relation to which the committee has received a response from the legislation
proponent, but requires further information in order to conclude its examination
of the matter.
2.18
Chapter 2 of the committee's reports examines responses received in
relation to the committee's requests for information and on the basis of which
the committee will conclude or finalise its examination of the legislation in
question. As noted above at paragraph [2.11], the committee's concluding
remarks on legislation may include findings as to the human rights
compatibility of the legislation and/or specific recommendations to address any
human rights concerns.
Legal advice
2.19
The committee is assisted by an external legal adviser, who is appointed
by the Presiding Officers of the Parliament. The committee's legal adviser during
the reporting period was Professor Andrew Byrnes.
Committee publications and resources
2.20
In addition to its regular reports on the human rights compatibility of
legislation, the committee has produced a number of publications and resources
to assist ministers, departments and interested parties more generally in
engaging with the committee and its work.
Committee guidance notes
2.21
The committee has produced the following guidance notes to assist
legislation proponents and other interested parties in understanding and
engaging with the committee and its work.
2.22
The guidance notes are available on the committee's website and are
included in Appendix 2 to this report.[6]
Guidance Note 1—Drafting statements
of compatibility
2.23
This note sets out the committee's approach to human rights assessments
and its requirements for statements of compatibility. It is primarily designed
to assist legislation proponents in the preparation of statements of
compatibility.
Guidance Note 2—Offence provisions,
civil penalties and human rights
2.24
This guidance note sets out some of the key human rights compatibility
issues in relation to provisions that create offences and civil penalties. It
is not intended to be exhaustive but to provide guidance on the committee's
approach and expectations in relation to assessing the human rights
compatibility of such provisions.
Guide to human rights
2.25
The committee's Guide to human rights (the guide) provides an
introduction to the key human rights protected by the human rights treaties
relevant to the committee's assessments of legislation.
2.26
The guide is intended to provide a brief and accessible overview of
Australia's human rights obligations, the key human rights considered by the
committee, and the manner in which human rights may be justifiably limited.
Case studies are provided to illustrate how human rights may be engaged and
limited in practice. The guide also includes a references section for those
seeking more comprehensive information about the rights listed in the guide.
2.27
The guide is available on the committee's website.[7]
Index of bills and legislative
instruments
2.28
The Index of bills and Index of instruments raising human
rights concerns list all the bills examined by the committee, and those
legislative instruments in relation to which the committee has identified human
rights concerns (as noted above at paragraph [2.16], the committee takes an
exceptions-based approach to reporting on legislative instruments).[8]
2.29
The Index of bills contains a shorthand description of any rights
engaged by a bill, the action taken by the committee (that is, whether the
committee made no comment on the bill, made an advice-only comment or made a
comment requiring a response from the legislation proponent), and the relevant reports
in which the committee's full comments may be found.[9]
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