CHAPTER 1


CHAPTER 1

Introduction

1.1        On 2 June 2010, the Senate jointly referred the provisions of the Human Rights (Parliamentary Scrutiny) Bill 2010 (Human Rights Bill) and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 (Consequential Bill) to the Senate Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 15 June 2010. This reporting date was subsequently extended to 17 August 2010.

1.2        On 23 July 2010, the committee tabled a short report which stated that, as a result of the prorogation of the 42nd Parliament, the committee had resolved not to continue the inquiry into the two bills. The report also noted that, if the bills were reintroduced in the new Parliament, the Senate could again refer them to the committee for inquiry.

1.3        Following the commencement of the 43rd Parliament, the two bills were reintroduced into the House of Representatives on 30 September 2010 by the Attorney-General, the Hon. Robert McClelland MP. On the same day, the Senate again referred the provisions of the bills to the committee for inquiry and report by 23 November 2010. On 17 November 2010, the Senate agreed to extend the reporting date until 7 December 2010. On 7 December 2010, the committee presented an interim report in which it indicated that additional time was required to consider the evidence presented during the course of the inquiry, and that the committee intended to present its final report by 28 January 2011.

Purpose of the bills

1.4        The two bills together seek to implement the legislative elements of Australia's Human Rights Framework announced by the Australian Government in April 2010. The framework outlines a range of measures to protect and promote human rights in Australia, and reflects the key recommendations of the report of the National Human Rights Consultation Committee, chaired by Father Frank Brennan AO (Brennan Committee).[1]

1.5        In his second reading speech, the Attorney-General explained the purpose of the Human Rights Bill:

The bill contains two important measures that are 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.

...

Essentially the implementation of these two measures – that is, statements of compatibility on human rights and the establishment of a new Parliamentary Joint Committee on Human Rights – establishes a dialogue between the executive, the parliament and ultimately the citizens they represent.[2]

1.6        Along with establishing the Parliamentary Joint Committee on Human Rights, the Human Rights Bill sets out the functions and administrative arrangements for that committee, namely:

  • to examine Acts, bills for Acts and legislative instruments for compatibility with Australia's human rights obligations, and to report on those matters to both Houses of the Parliament; and
  • to inquire into, and report to the Parliament, on any matter relating to human rights which is referred to it by the Attorney-General.

1.7        The Consequential Bill contains amendments that arise as a consequence of the Human Rights Bill, as well as other matters (including amendments to the Administrative Appeals Tribunal Act 1975 and the Legislative Instruments Act 2003).

Background

Australia's current system of human rights protection

1.8        The elements of the current system for protecting human rights in Australia include constitutional protections, international human rights conventions which have been ratified by Australia, protections under federal, state and territory legislation, and rights recognised by the common law.[3]

Constitutional protections

1.9        The Australian Constitution provides express protection for certain rights, including:

  • the right to trial by jury (section 80) (applying only to federal offences and only to those who are to be tried by indictment);
  • freedom of religion (section 116) ('[t]he Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth');
  • a prohibition on discrimination based on residence (section 117) (prohibiting governments from imposing 'any disability or discrimination' based on an individual's place of residence);
  • the right to review of government actions (paragraph 75(v)) (giving the High Court of Australia the power to issue writs of mandamus (which compel the performance of a public duty), prohibition and injunction (which forbid or prevent specified acts or omissions) against officers of the Commonwealth);
  • acquisition of property on just terms (paragraph 51(xxxi)) (the Commonwealth can acquire 'property' only on 'just terms'); and
  • freedom of interstate trade (section 92) ('trade, commerce and intercourse among the States...shall be absolutely free').

1.10      However, these constitutional protections are subject to various limitations and have generally been interpreted narrowly by the courts.[4]

1.11      The High Court of Australia has also recognised implied rights or freedoms based on the system of government mandated by the Australian Constitution, including freedom of political communication and the right to vote.[5]

International law

1.12      Australia has ratified many international conventions aimed at protecting human rights, including the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the Convention on the Rights of the Child (CROC); and the Convention on the Rights of Persons with Disabilities.[6]

1.13      Australia is also a party to optional protocols to ICCPR, CEDAW and the Convention on the Rights of Persons with Disabilities, which allow individuals to take a complaint about human rights breaches to the relevant United Nations committee once domestic remedies have been exhausted.[7] Similarly, Australia has made declarations under article 14 of CERD and article 22 of CAT which recognise the competence of the United Nations committees established under CERD and CAT to hear complaints lodged by individuals relating to breaches of those conventions.[8]

1.14      There are also human rights protections recognised as customary international law norms which bind all states. These include the prohibition of genocide and other crimes against humanity; the prohibition of torture and other forms of cruel, inhuman or degrading treatment; and the prohibition of slavery and forced labour.[9]

Commonwealth legislation

1.15      Some of Australia's international human rights obligations have been incorporated into domestic law through specific anti-discrimination legislation, the most notable of which are the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004.

1.16      Another legislative element of the federal system of human rights protection is the Australian Human Rights Commission Act 1986 (AHRC Act) which establishes the Australian Human Rights Commission (AHRC). The AHRC's functions include:

  • inquiring into, and attempting to conciliate, complaints of unlawful discrimination;
  • assisting the Federal Court of Australia and the Federal Magistrates Court as amicus curiae[10] in matters which raise human rights issues;[11]
  • when requested to do so by the Attorney-General, examining proposed enactments to ascertain whether those enactments would be inconsistent with any human right, and reporting to the Attorney-General the results of any such examination; and
  • undertaking research and educational programs for the purpose of promoting human rights.[12]

1.17      The AHRC also has specific functions under each piece of federal anti-discrimination legislation.[13]

State and territory legislation

1.18      Each state and territory has enacted its own anti-discrimination legislation.[14] The protections available under state and territory legislation overlap with those available under federal legislation, and are broader in some respects because of the constitutional limitations on federal legislative power.

1.19      In addition, the Australian Capital Territory (ACT) and Victoria have enacted human rights legislation.[15] Among other things, this legislation requires human rights statements of compatibility for legislation introduced into the ACT Legislative Assembly or the Victorian Parliament.[16] The ACT and Victorian legislation also requires that the human rights issues raised by proposed legislation are to be considered and reported on by a parliamentary committee.[17]

Common law

1.20      Some human rights are protected at common law. For example, the common law has recognised the right of an accused to a fair trial, the right against self-incrimination, and the immunity from search without warrant.[18]

1.21      The common law has also developed rules of statutory interpretation which require that, when interpreting legislation, the courts will presume that parliament did not intend to interfere with fundamental rights; and that, in general, legislation must be interpreted and applied, so far as its language permits, so that it is consistent with established rules of international law.[19]

1.22      However, these common law protections can be overridden by legislation if the relevant legislation expresses a clear intention to do so.[20]

National Human Rights Consultation Committee

1.23      In recent years, there has been significant public debate about human rights in Australia. While much of this debate has tended to focus on the specific issue of whether Australia should enact a Bill of Rights, the Brennan Committee was established in December 2008 by the Rudd Labor Government to 'seek out the diverse range of views held by the community about the protection and promotion of human rights'.[21]

1.24      The Brennan Committee was tasked with seeking the views of Australians on three key questions, namely: which human rights (including corresponding responsibilities) should be protected and promoted; whether these human rights are currently sufficiently protected and promoted; and how Australia could better protect and promote human rights.[22]

1.25      The Brennan Committee's report was required to set out the issues raised in the consultation, and include options to enhance the protection and promotion of human rights for the Australian Government's consideration. The Brennan Committee's terms of reference also specified that the options identified 'should preserve the sovereignty of the Parliament and not include a constitutionally entrenched bill of rights'.[23]

1.26      The Brennan Committee presented its report to the Australian Government in September 2009, and made 31 recommendations aimed at promoting the protection of human rights, including:

  • Australia should adopt a federal Human Rights Act based on the 'dialogue' model;
  • a statement of compatibility with Australia's human rights obligations should be required for all bills and legislative instruments;
  • a joint committee on human rights should be established to review all bills and relevant legislative instruments for compliance with Australia's human rights obligations; and
  • the functions of the AHRC should be expanded to include examination of any bill at the request of the proposed joint committee on human rights, for the purpose of ascertaining if any provisions of the relevant bill are inconsistent with Australia's human rights obligations.[24]

Australia's Human Rights Framework

1.27      In April 2010, in response to the Brennan Committee's report, the Attorney-General announced a policy known as Australia's Human Rights Framework 'which outlines a range of key measures to further protect and promote human rights in Australia'.[25] The framework is based on five main principles and focuses on:

  • reaffirming a commitment to Australia's human rights obligations;
  • the importance of human rights education;
  • enhancing Australia's domestic and international engagement on human rights issues;
  • improving human rights protections, including greater parliamentary scrutiny; and
  • achieving greater respect for human rights principles within the community.[26]

1.28      Specifically, the framework includes elements such as:

  • providing additional funding to the AHRC and non-government organisations to provide education and information about human rights to the community;
  • combining federal anti-discrimination laws into a single Act; and
  • a proposed new parliamentary joint committee with responsibility for reviewing legislation against human rights obligations.[27]

1.29      The framework does not include a Human Rights Act or a Charter of Human Rights. According to the Attorney-General:

While there is overwhelming support for human rights in our community, many Australians remain concerned about the possible consequences of such an Act. The Government believes that the enhancement of human rights should be done in a way that as far as possible unites, rather than divides, our community. The Government is committed to positive and practical change to promote and protect human rights. Advancing the cause of human rights in Australia would not be served by an approach that is divisive or creates an atmosphere of uncertainty or suspicion in the community.[28]

Conduct of the inquiry

1.30      The committee advertised the inquiry in The Australian newspaper on 13 October 2010 and wrote to over 125 interested parties inviting written submissions by 27 October 2010. Details of the inquiry, the bills and associated documents were placed on the committee's website.

1.31      The committee received 79 submissions, including those submissions received in relation to the inquiry referred in the 42nd Parliament. Submissions are listed at Appendix 1.

1.32      Public hearings were held in Melbourne on 4 November 2010 and in Canberra on 25 November 2010. A list of the witnesses who appeared at the hearings is at Appendix 2, and copies of the Hansard transcripts are available through the internet at http://aph.gov.au/hansard.

Acknowledgement

1.33      The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearings.

Scope of the report

1.34      Chapter 2 provides an overview of the main provisions of the two bills; and Chapter 3 discusses the key issues raised in submissions and evidence.

Note on references

1.35      Submission references in this report are to individual submissions as received by the committee, not to a bound volume. References to the Committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official Hansard transcripts.

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