CHAPTER 2

Overview of the bills

2.1        This chapter provides a brief summary of the main provisions contained in the Human Rights Bill and the Consequential Bill.

Human Rights (Parliamentary Scrutiny) Bill 2010

2.2        The Human Rights Bill contains four parts:

• Part 1 deals with preliminary matters including commencement and definitions;
• Part 2 establishes the Parliamentary Joint Committee on Human Rights, and sets out its functions and administrative arrangements;
• Part 3 introduces a requirement for statements of compatibility to be prepared for all bills, and for all legislative instruments subject to disallowance; and
• Part 4 deals with miscellaneous matters, and enables the Governor-General to make regulations.

Part 1 – Definition of 'human rights'

2.3        Clause 3 defines the key terms used in the Human Rights Bill. The term 'human rights' is defined as the rights and freedoms recognised or declared by the seven core United Nations (UN) human rights treaties, as those treaties apply to Australia. The relevant treaties are:

• International Convention on the Elimination of All Forms of Racial Discrimination (CERD);
• International Covenant on Civil and Political Rights (ICCPR);
• International Covenant on Economic, Social and Cultural Rights (ICESCR);
• Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);
• Convention on the Rights of the Child (CROC); and
• Convention on the Rights of Persons with Disabilities.[1]

Part 2 – Parliamentary Joint Committee on Human Rights

Establishment of committee

2.4        Clause 4 provides that, as soon as practicable after commencement of the first session of each Parliament, a joint committee of members of the Parliament, to be known as the Parliamentary Joint Committee on Human Rights (joint committee), is to be appointed according to the practice of the Parliament.

Membership of committee

2.5        Clause 5 sets out the administrative arrangements for the establishment of the new committee and for the appointment of members according to the practice of the Parliament. The explanatory memorandum (EM) states that this approach 'is consistent with provisions for the appointment of other statutory committees such as the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity, the Parliamentary Joint Committee on the Australian Crime Commission,[2] and the Parliamentary Joint Committee on Corporations and Financial Services'.[3]

2.6        The new committee will consist of ten members of Parliament: five members of the House of Representatives, to be appointed by that House; and five members of the Senate, to be appointed by the Senate.[4] A Minister, President, Speaker, Deputy President or Chair of Committees cannot be appointed to the committee, and will cease to be a member of the committee if he or she obtains one of those offices after their appointment. Each House of the Parliament may appoint one of its members to fill a vacancy among the members of the committee appointed by that House.

Powers and proceedings of committee

2.7        Clause 6 provides that all matters relating to the powers and proceedings of the joint committee are to be determined by resolution of both Houses of the Parliament.

Functions of committee

2.8        Clause 7 sets out the functions of the new joint committee, which are to:

• examine bills for Acts and legislative instruments for compatibility with human rights;
• examine Acts for compatibility with human rights; and
• inquire into any matter relating to human rights that is referred to it by the Attorney-General.[5]

2.9        The joint committee is to report on each of the matters listed above to both Houses of the Parliament.

2.10      The EM states that the examination of bills and legislative instruments is primarily a traditional scrutiny function, and will be the major activity of the new joint committee. Further, the EM advises that the new committee:

...will also be able to inquire more thoroughly into bills and legislative instruments including calling for submissions, holding public hearings and examining witnesses, when it considers this appropriate.[6]

2.11      In addition to the scrutiny function, the new joint committee will be able to examine Acts and conduct broader inquiries on matters related to human rights referred to it by the Attorney-General. In performing these functions, the committee will also be able to call for submissions, hold public hearings and examine witnesses.[7]

2.12      The EM notes that the joint committee 'will be able to determine the manner in which it performs its scrutiny function to ensure that reports on compatibility of bills and legislative instruments with human rights are provided to the Parliament in a timely manner'.[8]

Part 3 – Statements of compatibility

2.13      Clause 8 of the Human Rights Bill sets out the requirements for preparation of statements of compatibility for bills and presentation of such statements to the Parliament. Under clause 8, statements of compatibility must be presented to the House of Representatives or the Senate (as appropriate) by the member of Parliament who introduces the relevant bill, or another member acting on his or her behalf. The EM suggests that a statement of compatibility 'will ordinarily form part of the explanatory memorandum for the bill'.[9]

2.14      There is no prescribed form for statements of compatibility under the main Bill. However, clause 8 provides that a statement of compatibility must include an assessment of whether a particular bill is compatible with human rights as defined in clause 3. The EM notes that statements of compatibility 'are intended to be succinct assessments aimed at informing Parliamentary debate and containing a level of analysis that is proportionate to the impact of the proposed legislation on human rights'.[10]

2.15      In a media release issued at the time the two bills were introduced in the 42^nd Parliament, the Attorney-General explained the purpose of statements of compatibility:

The Statements will assist in explaining the purpose and intent of legislation, to contextualise human rights considerations, and where appropriate, justify restrictions or limitations on rights in the interests of other individuals or society more generally.[11]

2.16      In his second reading speech in the 43^rd Parliament, the Attorney-General noted that statements of compatibility:

...will establish a dialogue between the executive and the parliament whereby members and senators will be able to consider the impact of proposed legislation on the citizens they represent.

And in turn, the new parliamentary committee will establish a dialogue between the parliament and its citizens whereby the members of the committee can canvass the views of the public, including affected groups, as to how they will be affected by proposed legislation.[12]

2.17      The Attorney-General noted that, accordingly, 'these measures incrementally advance the concept of participatory democracy by providing additional means for citizens to have input into the legislative process';[13] further, statements of compatibility are intended to alert the Parliament to relevant human rights considerations and assist in informing parliamentary debate.[14]

2.18      Subclause 8(4) provides that a statement of compatibility in relation to a bill will not be binding on a court or tribunal. However, the EM explains that this provision is not intended to exclude the operation of section 15AB of the Acts Interpretation Act 1901, which deals with use of extrinsic material in the interpretation of an Act.[15] The EM also notes that, consistent with the current rules of statutory interpretation, a statement of compatibility and a report of the new joint committee could be used by a court to assist in ascertaining the meaning of provisions in a statute where the meaning is unclear or ambiguous.[16]

2.19      Subclause 8(5) provides that a failure to comply with clause 8 will not affect the validity or operation or enforcement of the enacted bill, or any other law of the Commonwealth.

2.20      Clause 9 of the Human Rights Bill relates to the preparation and presentation of statements of compatibility by the relevant rule-maker in relation to legislative instruments subject to disallowance under the Legislative Instruments Act 2003.

2.21      The rule-maker for a disallowable legislative instrument must cause a statement of compatibility to be prepared in respect of that legislative instrument; and the statement of compatibility must be included in the explanatory statement for the relevant legislative instrument. Similarly to statements of compatibility for bills, the EM notes that statements for legislative instruments 'are intended to be succinct assessments aimed at informing Parliamentary debate and containing a level of analysis that is proportionate to the impact of the proposed legislative instrument on human rights'.[17]

2.22      Subclause 9(3) provides that a statement of compatibility in relation to a legislative instrument would not be binding on a court or tribunal; however, this is not intended to exclude the operation of section 15AB of the Acts Interpretation Act 1901. The EM also notes that, consistent with the current rules of statutory interpretation, a statement of compatibility in relation to a disallowable legislative instrument could be used by a court to assist in ascertaining the meaning of provisions in a legislative instrument where the meaning is unclear or ambiguous.[18]

Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010

2.23      The Consequential Bill contains amendments that arise as a consequence of the Human Rights Bill, along with other matters.

2.24      The key provisions contained in Schedule 1 of the Consequential Bill will amend:

• the Administrative Appeals Tribunal Act 1975 (AAT Act) to include the President of the Australian Human Rights Commission (AHRC), as established by subsection 8(1) of the AHRC Act, as an ex officio member of the Administrative Review Council (ARC);
• amend the AAT Act to increase the quorum of the ARC from four to five members; and
• amend the Legislative Instruments Act 2003 to require an explanatory statement in respect of a disallowable legislative instrument to contain a statement of compatibility prepared under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2010.

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