Executive Summary
This report provides the Parliamentary
Joint Committee on Human Rights' view on the compatibility with human rights as
defined in the Human Rights (Parliamentary Scrutiny) Act 2011 of bills
introduced into the Parliament during the period 12 November to 5 December
2013 and legislative instruments received during the period 8 June and 22
November 2013. The committee has also considered 10 responses to the
committee's comments made in previous reports in the 43rd Parliament.
Bills introduced 12 November to 5 December 2013
The committee considered 45 bills, all
of which were introduced with a statement of compatibility. Of these 45 bills,
22 of the bills considered do not require further scrutiny as they do not
appear to give rise to human rights concerns. The committee has identified 20 bills
that it considers require further examination and for which it will seek
further information.
The committee has decided to defer
its consideration of the Building and Construction Industry (Improving
Productivity) Bill 2013, the Building and Construction Industry (Consequential
and Transitional Provisions) Bill 2013 and the Migration Amendment (Regaining
Control Over Australia's Protection Obligations) Bill 2013. The committee notes
that each of these three bills has been referred to Senate committees for
consideration. The committee considers that each of the three bills may give
rise to human rights concerns and has decided to defer its consideration of
each bill to allow for closer examination of the issues and the opportunity to
take account of submissions made to the Senate committees.
Legislative instruments received between
8 June 2013 and 22 November 2013
The committee considered 1 017
legislative instruments received between 8 June 2013 and 22 November 2013.
The full list of instruments scrutinised by the committee can be found in Appendix
1 to this report.
Of these 1 017 instruments, 973 (or over
95 percent) do not appear to raise any human rights concerns and are
accompanied by statements of compatibility that are adequate. A further 18 instruments
do not appear to raise any human rights concerns but are not accompanied by
statements of compatibility that fully meet the committee's expectations. As
the instruments in question do not appear to raise human rights compatibility
concerns, the committee has written to the relevant Ministers in a purely
advisory capacity providing guidance on the preparation of statements of
compatibility. The committee has decided to seek further information from the
relevant Minister in relation to the remaining 20 instruments before forming a
view about their compatibility with human rights.
The committee has deferred its
consideration of six instruments. Four of these raise issues in relation to
Australia's sanctions and extradition regimes that the predecessor to this
committee (the former committee) commented on in the 43rd Parliament.
The former committee wrote to the former Minister for Foreign Affairs and Trade
to request a review of the sanctions regime in light of Australia's
international human rights obligations and to report back to the committee in
the 44th Parliament. The former Minister responded stating that he
had instructed the department to carefully consider the committee's
recommendation. The committee has decided to draw the current Minister for
Foreign Affairs' attention to the former committee's request and defer
consideration of these instruments until it has received the Minister's
response.
The committee has decided to defer a
further two instruments while it considers the former committee's
recommendation that a 12-month review of the Stronger Futures package of
legislation be undertaken in the 44th Parliament to evaluate the
latest evidence and consider the continuing necessity for the Stronger Futures
measures.[1]
Responses
The committee has considered ten
responses to comments made in previous reports by the former committee in the
43rd Parliament. The committee has concluded its consideration of two
bills and two instruments as the responses relating to them appear to have
adequately addressed the committee's concerns.
The committee has decided to write to
the relevant Ministers seeking further information, or suggesting the inclusion
of safeguards, in relation to five bills and one instrument.
The committee makes a general
observation that the quality of a number of statements of compatibility
accompanying legislation considered during this reporting period fell short of
the committee's expectations. Statements of compatibility perform a significant
role in the legislative process. They provide an important starting point for
the committee's, and the Parliament's, assessment of human rights
compatibility. However, the committee does not regard statements of
compatibility as definitive and does not consider them to be exclusive in the
consideration of human rights compatibility. The committee routinely looks
beyond the stated objective of the legislation provided in the statement of
compatibility to consider the likely practical effect of the legislation and
whether the explanations offered for decisions to limit rights are evidence
based.
While the committee is able to
consider the human rights compatibility of legislation in the absence of a
statement of compatibility, such statements often provide valuable information
that cannot be gained from the legislation and the explanatory memorandum or
explanatory statement. A good statement of compatibility will set out the
objective of the legislation and the manner in which human rights have been
considered in framing the legislation to achieve this objective. This is
particularly important when, in order to achieve a particular objective,
certain rights are to be limited. The statement of compatibility should set out
how the objectives being sought have been weighed against any limitations on
rights. The statement should set out a clear justification for each limitation
and demonstrate that there is a rational and proportionate connection between
the limitation and the policy objective. The statement should also set out the safeguards
that will be applied to ensure that any limitations are implemented in the
least restrictive form. The committee will continue to write to the sponsors of
bills and instruments to draw their attention to the committee's expectations
for statements of compatibility when it considers that particular statements do
not adequately meet these expectations.
The committee considers, however, that
the overall quality of statements of compatibility continues to improve and
that there were many examples of good statements of compatibility accompanying
the legislation considered in this report. For example, the detail provided in
the statement of compatibility accompanying the Clean Energy Legislation
(Carbon Tax Repeal) Bill 2013 on the engagement of civil penalties introduced
by the bill with criminal process rights was extremely useful in assisting the
committee with its task.
Senator Dean Smith
Chair
Navigation: Previous Page | Contents | Next Page