CHAPTER 3

Key issues

3.1        This chapter discusses some of the key issues raised during the inquiry, including:

• in-principle support for a parliamentary joint committee on human rights;
• suggestions for improvement to the role, mandate and practical operation of the new joint committee, namely:
• expansion of coverage of relevant 'human rights' standards; and
• additional or specific functions and powers for the new joint committee; and
• content, form and scope of statements of compatibility.

Support for a parliamentary joint committee on human rights

3.2        The vast majority of submitters and witnesses expressed in-principle support for the proposed new joint committee.[1] While many submissions noted their disappointment that the government's response to the National Human Rights Consultation does not include a federal Human Rights Act or a Charter of Human Rights,[2] all of those submissions nevertheless welcomed the introduction of the measures in the two bills as an important step towards improving protection of human rights in Australia and ensuring that human rights are taken into account during the legislative process.

3.3        The Law Council of Australia (Law Council) expressed its 'general support' for the bills;[3] in particular, the Law Council supported the establishment of a human rights committee and the requirement that all bills and certain delegated legislation must be accompanied by statements of compatibility:

Australia is the only Western democracy without an effective federal constitutional statutory mechanism to provide comprehensive parliamentary scrutiny of new and existing laws for compliance with human rights. The mechanisms proposed in these bills are, in our submission, an important step towards addressing this gap.[4]

3.4        Similarly, the Australian Human Rights Commission (AHRC) submitted that, in its view, the new joint committee 'will form an important mechanism at the parliamentary level to ensure that the human rights impact of legislation and delegated instruments [is] fully considered as part of the policy development process'.[5]

3.5        The Human Rights Council of Australia noted that, '[w]hile the Government's decision to not accept the Brennan Committee's recommendation for a federal Human Rights Act was disappointing', the establishment of the new joint committee would be 'a very significant step forward' for better protecting and promoting human rights in Australia:

It is particularly pleasing that the rights to which the Parliamentary Joint Committee must have regard when performing its functions are all of the rights expressed and declared in the relevant international instruments listed in clause 3(1) of the Bill, as distinct from merely a selection of some of these rights. This will serve to remind the federal legislature that, at international law, Australia has an obligation to observe and respect all rights that are the subject of international treaties to which Australia is a party. This is very welcome.[6]

3.6        The Public Interest Law Clearing House (PILCH) also expressed its support for the bills:

PILCH is pleased that the Bills, if enacted into law, will enhance parliamentary scrutiny of proposed laws for compatibility with human rights. Enhanced parliamentary scrutiny will help to ensure that the human rights of all persons, including the most vulnerable and disadvantaged members of society, are respected, protected and fulfilled. In this regard, the Bills represent an important step forward in the domestic protection and promotion of human rights and fundamental freedoms.[7]

3.7        The Human Rights Law Resource Centre welcomed the bills, despite perceived 'gaps and deficiencies in the Government's Human Rights Framework', and supported their expeditious passage:

Whilst our system undoubtedly has strengths, we should always strive to do better to ensure the enjoyment of human rights by all people in Australia. The Human Rights (Parliamentary Scrutiny) Bill 2010 is a small step in the right direction. It has the potential to make a modest but welcome contribution to the legislative and institutional protection of human rights in Australia and to play an important role in human rights education and acculturation.[8]

3.8        Professor David Kinley and Ms Christine Ernst from the Sydney Law School, University of Sydney commended the introduction of the measures:

We believe that the Human Rights (Parliamentary Scrutiny) Bill is an important step towards creating a human rights culture. Its introduction ought to be commended. By proposing a Joint Committee on Human Rights and requiring new legislation to be accompanied by a statement of compatibility, the Bill seeks to make human rights considerations an integral part of the decision-making of Parliament and the Executive.[9]

3.9        Amnesty International Australia also endorsed the bills:

A Parliamentary Scrutiny Committee tasked with assessing legislation on the basis of adherence to the seven major international human rights instruments to which Australia has committed to upholding is a positive step towards human rights protection in this country...

In the absence of a Human Rights Act, the Human Rights (Parliamentary Scrutiny) Bill 2010 if implemented in full will be a useful and tangible measure to further the human rights protection for people in Australia.[10]

Suggested improvements to enhance role and mandate of joint committee

3.10      Despite widespread support for the proposed new joint committee and the other measures contained in the bills, most submitters and witnesses were of the view that the joint committee's role and mandate could be usefully enhanced in a number of ways to better achieve its intended purpose. Without such improvement, many argued that the capacity of the joint committee to protect and promote human rights in Australia would be significantly undermined.

Definition of 'human rights'

3.11      Concerns were raised about the definition of 'human rights' contained in clause 3 of the Human Rights Bill on the basis that the definition is too narrow, uncertain in coverage, and fails to include important international and domestic human rights standards.[11]

Recognition of a wider range of international human rights instruments

3.12      Many submissions proposed that the definition of 'human rights' should be expanded to include a wider range of international instruments than the seven core UN conventions currently captured, in order to more accurately reflect Australia's international human rights obligations.

3.13      For example, the Centre for Comparative Constitutional Studies at the University of Melbourne argued that a 'genuine commitment' to scrutinise bills and existing legislation to ensure compatibility with Australia's obligations under international law 'will require the proper consideration of more international instruments than the seven core human rights treaties to which Australia is a party'.[12] In particular:

The list of treaties in section 3(1) is not a comprehensive list of the international human rights instruments to which Australia is a party as it excludes several of the Optional Protocols to these treaties to which Australia is also a party. For example, it excludes the Optional Protocol to the Convention on the Rights [of the Child on] the Sale of Children, Child Prostitution and Child Pornography which was ratified by Australia on 8 January 2007.

The list of treaties in section 3(1) does not include those international treaties to which Australia is a party and which impact directly on human rights. Treaties that fall within this category include, for example, the Convention Relating to the Status of Refugees 1951, which was ratified by Australia on 22 January 1954 and the numerous conventions of the International Labour Organisation to which Australia is a party...[13]

3.14      Further:

The definition of human rights does not make any reference to the various declarations and resolutions that have been adopted by the United Nations General Assembly on human rights and which Australia has adopted or affirmed. The most notable exclusion is the Universal Declaration of Human Rights but there are others such as the United Nations Declaration on the Rights of Indigenous Peoples which was affirmed more recently by the Federal Government. Although these instruments do not impose direct obligations on Australia under international law, they are often relevant to understanding the meaning of the rights under the core human rights treaties.[14]

3.15      The Australian Privacy Foundation argued that the human rights conventions specified in clause 3 of the Human Rights Bill should be a minimum 'floor' and that the joint committee 'should have the discretion to make reference to higher 'ceilings' such as other human rights instruments and laws, both international and in other jurisdictions, even where they have not yet been adopted in Australia'. Accordingly:

...the role of the Committee [would keep] pace with both domestic and international developments, and [would] not fall behind 'world's best practice' pending the inevitably lengthy process of treaty negotiations and ratification. The Committee would of course distinguish in its reports between rights already formally accepted by Australia and other relevant rights and standards. Parliament, and the public, could then decide what if any weight to give to the latter.[15]

3.16      The NSW Disability Discrimination Legal Centre (NSWDDLC) also suggested expanding the definition in clause 3 to recognise international human rights instruments of a 'lesser status' than the seven core treaties:

There may be compelling reasons why, in specific instances, the Australian Government would wish to recognise international human rights instruments of lesser status to the core human rights treaties as falling within the definition of human rights for the purpose of this Bill. For example, the United Nations Declaration on the Rights of Indigenous Peoples is not a core human rights treaty and is not currently within the Bill's definition of human rights. In our view it ought to be, as none of the other treaties deals in any substantial way with the specific rights of indigenous peoples. In our view the Bill ought to therefore also include provision for the Attorney-General to declare, in appropriate circumstances, 'other human rights instruments' as falling within the definition of human rights.[16]

3.17      The National Tertiary Education Union (NTEU) expressed particular concern about the omission from clause 3 of the Declaration on the Rights of Indigenous Peoples:

...the National Human Rights Consultation final report...focused upon the need for a framework to consider the distinct impact of legislative acts upon Aboriginal and Torres Strait Islander peoples (Recommendation 15) as well as a negotiated framework for self-determination (Recommendation 16). Considering the Federal Government's strong stated commitment to 'closing the gap', it is a major concern that the Declaration on the Rights of Indigenous Peoples has not explicitly been included as a 'human rights' matter within the auspice of the Joint Committee.[17]

3.18      While acknowledging that the Declaration on the Rights of Indigenous Peoples is not legally binding and does not create new rights, Australians for Native Title and Reconciliation also argued that, for the sake of clarity, the declaration should be included in clause 3 as a relevant international instrument, or scheduled as an interpretive tool. This would provide 'a comprehensive statement of Australia's human rights obligations to Indigenous peoples for consideration by the Joint Committee'.[18]

3.19      The Australian Council of Trade Unions (ACTU) also submitted that the definition of human rights does not capture the full scope of internationally protected human rights. Focussing on the rights of workers, the ACTU argued that the definition in clause 3 should be broadened to include reference to the work of the International Labour Organisation (ILO) when determining the scope and applicability of workers' rights, particularly in relation to freedom of association.[19] Further, it was suggested that reference to the ILO's work should not be limited to the text of its conventions, but should also include the work of the respective treaty bodies of the ILO that interpret the human rights outlined in the ILO conventions.[20]

3.20      There were also calls for other rights to be recognised in the definition of 'human rights':

• the Arts Law Centre of Australia suggested broadening the definition to take into account the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions to 'further ensure critical examination of the potential impact of new legislation on freedom of expression';[21]
• the Australian Privacy Foundation argued that the current definition, which includes reference to the ICCPR (covering privacy at Article 17), should also specify the parent treaty, the Universal Declaration of Human Rights, capturing privacy at Article 8;[22] and
• Urban Taskforce Australia suggested that the Universal Declaration of Human Rights should be included, to address its concerns that the seven core international instruments contained in the current definition do not contain explicit recognition of property rights.[23]

3.21      Mr Philip Lynch, from the Human Rights Law Resource Centre, held a different view. Favouring an inclusive definition of 'human rights', he contended that it is not necessary to explicitly enumerate any additional international treaties in the Human Rights Bill. Suggesting the replacement of the word 'means' with the word 'includes' in subclause 3(1), Mr Lynch argued that the additional treaties would be covered in any case:

First, most if not all of the rights contained in those instruments are covered by the seven core human rights treaties. Second, declarations, particularly the Declaration on the Rights of Indigenous Peoples, whilst important instruments that should guide the development and interpretation of law and policy, are not legally binding and therefore do not have the status or carry the legal obligations of the seven treaties. Finally, as a practical matter, the task of prelegislative and parliamentary scrutiny risks becoming overly complex if the assessment of compatibility is against too many instruments.[24]

Consistency with Australian Human Rights Commission's mandate

3.22      The AHRC recommended that there should be consistency between the definition of human rights for the purposes of the joint committee and for the purposes of the AHRC's mandate, and recommended amendments to both the definition in clause 3 and the definition in the AHRC Act. In particular, the AHRC noted that the AHRC Act empowers the AHRC to investigate complaints and to report to the Parliament on breaches of human rights in relation to ILO Convention 111 concerning Discrimination in respect of Employment and Occupation, and the UN Declaration on Religion and Belief:

Given that people in Australia have an avenue to pursue a remedy through the [AHRC] where their rights are breached under these instruments, it would be logical for government to ensure processes to assess compatibility with these instruments in order to avoid infringements of people's rights in the first place.[25]

3.23      In addition:

...while the UN Declaration on the Rights of Indigenous Peoples does not create binding legal obligations, it does provide a comprehensive guide to assist in protecting the rights of Indigenous peoples. The rights in the Declaration are covered in the seven instruments listed and under which Australia does have binding legal obligations. Including the Declaration in the definition of human rights would explicitly acknowledge this connection and ensure that the rights of Indigenous peoples are explicitly considered in the development of statements of compatibility and by the Joint Committee. It would also give meaning to Australia's formal position that it supports the Declaration.[26]

3.24      At the public hearing in Canberra, the President of the AHRC, Ms Catherine Branson QC, elaborated on the rationale for harmonising the definitions of human rights under the Human Rights Bill and the AHRC Act:

...I think to have differing definitions of human rights in this bill—should it become an act—[and] in the Australian Human Rights Commission Act, is likely to cause confusion, and I think it would be detrimental to the achievement of the objectives of the national framework on human rights and education and understanding in this country. It would of course also facilitate this commission providing submissions and such support to the committee should it come into existence, as it might be asked to do. We would then be able to make submissions more readily across the full range of the human rights that the joint committee is concerned with, and our own work would encompass that broader range of rights.

...

So I think that harmonisation of the definitions of human rights would be extremely helpful for...principally educative purposes and to assist clear understanding of human rights.[27]

3.25      Accordingly, the AHRC specifically recommended inclusion in clause 3 of the ILO Convention 111 concerning Discrimination in respect of Employment and Occupation; the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief; and the UN Declaration on the Rights of Indigenous Peoples.[28]

3.26      The AHRC also noted that the absence of some of the seven core UN treaties from the mandate of the AHRC 'is a longstanding concern', and is inconsistent with the first key principle of the Australian Human Rights Framework to promote awareness and understanding of human rights in the Australian community and to respect the seven core United Nations human rights treaties to which Australia is a party. The AHRC therefore recommended that the Consequential Bill include amendments to the AHRC Act to ensure that the following instruments fall within the definition of 'human rights' for the purposes of the AHRC Act: the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the UN Declaration on the Rights of Indigenous Peoples.[29]

Incorporation of human rights recognised by customary international law

3.27      Several submissions argued that the definition of 'human rights' should be expanded to explicitly include recognition of customary international human rights law.[30] Examples of human rights that are recognised in customary international law are the right to life; the prohibition of torture and other forms of cruel, inhuman or degrading treatment; the prohibition of arbitrary detention; the prohibition of slavery and forced labour; the principle of equality before the law; the freedoms of thought, conscience and religion; freedom of speech; the right to fair trial; and the principle of non-refoulement.^[31]

3.28      At the public hearing in Melbourne, Professor Spencer Zifcak from Liberty Victoria argued that customary international law rights should also be included in the definition of 'human rights' in clause 3:

Customary international law is law that is developed on [the] basis of state practice and which is accepted by the community of nations as being imperative...[F]or the sake of completeness it seems to me that...rights [recognised under customary international law] ought also to be considered as part of the joint committee's scrutiny. Having said that[,]...most of them are already included in the human rights treaties themselves, but just for the sake of completeness we have said let us look at the fundamental rights that are recognised as pre-emptory norms of international law.[32]

3.29      The NSWDDLC expressed a similar view:

International statutory law is not the only source of 'core' human rights law. We view it as essential that the definition of human rights incorporated into the Bill explicitly include customary international human rights law. Apart from ensuring that existing customary human rights law that is currently not also codified is capable of being recognised, this would assist in ensuring that the definition of human rights incorporated into the Bill does not become time-locked against future developments in customary international human rights law.[33]

3.30      In this context, Mr Benjamin Lee and Mr Chris Sidoti argued that customary international law 'should not be narrowly construed'. Further:

It should extend beyond human rights norms to include peremptory provisions in international criminal law and international humanitarian law. This would be consistent with Australia's international obligations and consonant with domestic legislation.[34]

Incorporation of international human rights jurisprudence

3.31      A number of submissions also suggested that the definition of 'human rights' should be expanded to provide scope for consideration of international human rights jurisprudence in assessing Australian legislation for compatibility with human rights obligations.[35]

3.32      For example, the Castan Centre for Human Rights Law (Castan Centre) suggested that the jurisprudence of a range of bodies, including UN treaty monitoring committees, the courts of other countries and regional human rights systems, must logically form part of the content of human rights for the purposes of the Human Rights Bill.[36] The Castan Centre recommended amending the Human Rights Bill to clarify that the joint committee may refer to jurisprudence from such sources in assessing the compatibility of Australian legislative provisions with human rights.[37]

3.33      The Human Rights Law Resource Centre considered that clause 3 should be amended to ensure that, in determining the scope and content of 'human rights', proper consideration is given to international human rights law and the judgements of domestic, foreign and international human rights courts, bodies and tribunals:

This would encourage and enable both policy-makers and parliamentarians to draw on extensive and illuminating international and comparative human rights jurisprudence. This direction would also be consistent with and complement the principle that it is desirable, as far as possible, that expressions used in international agreements be construed in a uniform and consistent manner by both municipal courts and international courts and panels.[38]

3.34      The NSWDDLC expressed an analogous viewpoint, arguing that the definition of 'human rights' should explicitly provide that 'in determining the scope and content of a human right, proper consideration must be given to relevant international law and jurisprudence'.[39]

Maintaining currency of the definition

3.35      Another criticism of the definition of 'human rights' was the apparently static nature of the exhaustive list of seven core human rights treaties, which makes no provision for other international instruments to which Australia may become a party in the future.

3.36      The NSWDDLC recommended that, given that the development of international human rights treaties is an ongoing process, the Human Rights Bill should be amended to permit the Attorney-General to declare additional human rights instruments as falling within the definition of 'human rights' if Australia becomes party to future relevant treaties.[40]

3.37      In their submission, a number of academics from the ANU College of Law suggested that the definition should 'anticipate prospective legislative compatibility treaties Australia has signed, but not yet ratified'.[41] In a similar vein, the NTEU argued that the definition in the Human Rights Bill fails to address '[p]rospective human rights obligations that Australia may become a signatory to in the future'.[42]

Specific coverage of human rights protected under domestic law

3.38      Many submissions argued that the definition in clause 3 is deficient because it does not include human rights protected under domestic law, including express or implied constitutional rights or guarantees, judicial decisions that develop the common law, and legislation.

3.39      For example, Civil Liberties Australia (CLA) argued that 'the current definition...ignores the vast body of human rights which derive from the Common Law and the Australian Constitution'. In CLA's view, this means that the joint committee would be deprived 'of an important function to ensure the compatibility of proposed legislation with the full breadth of human rights'.^[43]

3.40      Dr Julie Debeljak from the Castan Centre proposed that the current definition in the Human Rights Bill could be amended to make it inclusive, which would indicate that 'pre-existing rights within Australian domestic law, be they common law, statutory based or constitutional based, are not excluded'.[44]

3.41      Mr Phil Lynch from the Human Rights Law Resource Centre also supported an inclusive, rather than an exclusive, definition of 'human rights':

That would do two things. The first is that it would allow for the evolutionary nature of human rights and enable the consideration of human rights incidents that are not enumerated in proposed section 3(1) but that are clearly relevant to the proposed law. It would also clarify that the committee was empowered to consider those human rights that are recognised in the seven treaties but are also enshrined in Australian law, whether in legislation, the common law or the Constitution.[45]

3.42      Professor Spencer Zifcak of Liberty Victoria concurred:

We agree, broadly speaking, with the definition of human rights in the legislation. However, we think that this ought to be an inclusive rather than an exclusive definition. In other words, the definition of human rights would include the rights in the seven human rights treaties but not exclude others that may also be recognised legitimately as fundamental human rights.[46]

3.43      Reverend Professor the Hon. Michael Tate AO, a former Senator, former Minister for Justice and former Chairman of the Senate Scrutiny of Bills Committee, provided the committee with an alternative approach to defining 'human rights' under clause 3:

My definition would run this way: that the committee should report on the compatibility or incompatibility of the bills for acts insofar as they may trespass on personal rights and liberties recognised or expressed under the Australian Constitution, in the common law, in statutes of the parliament or in treaties ratified with the government of Australia and incorporated into law.[47]

3.44      Reverend Professor Tate submitted that this approach:

...has the merit of being politically uncontroversial in that it refers to the sources of law with which we are familiar. And it is ambulatory: able to encompass any changes made by the electorate in referenda, by the judiciary expounding Constitutional and Common Law, by the Parliament passing legislation, or by the Government ratifying treaties incorporated into law.[48]

3.45      The Australian Christian Lobby (ACL) expressly endorsed Reverend Professor Tate's suggested definition and agreed that 'such a definition of human rights is more politically acceptable than the framework proposed because it is more inclusive and reflective of the way that human rights have come to be expressed and understood in Australia throughout its democratic past and present'.[49]

3.46      The ACL also argued that the current definition in clause 3 is problematic because it 'creates a difficult hierarchy of rights that de-emphasises domestic sources of rights'. In particular:

This is troublesome because it negates the very good work of parliaments past to negotiate and pass legislation which balances rights in a way that is reflective of the unique cultural circumstances of Australia. The definition of human rights in the Bills regards with more esteem the statements of international bodies than Australian parliamentary law, our own common law tradition and even the Constitution.[50]

3.47      Professor Bryan Horrigan from Monash University also noted the significance of rights and freedoms enshrined under Australian constitutional, statutory and non-statutory law:

...the catalogue of possible legal sources to which the Parliament might have regard in assessing how a proposed law interacts with basic rights and liberties – under international human rights instruments, human rights as protected under Australian legislation (whether pursuant to formal international instruments or not), and human rights respected by the common law – are part of the legal equation in assessments of compatibility of laws, even putting to one side for the moment wider public policy goals in assessing competitions between rights and conflicts between rights and social goals within the legislative domain.[51]

3.48      In this context, former Senator Mr Barney Cooney drew comparisons with the much wider ambit of the Senate Scrutiny of Bills Committee and argued that the process undertaken by the Scrutiny of Bills Committee is superior to that currently proposed for the joint committee under the Human Rights Bill:

The Joint Committee's task is limited to making a judgment as to whether or not legislation is in conflict with the provisions of a modest number of international conventions or covenants whereas the Scrutiny of Bills Committee can express an opinion about the overall fairness and justice of Acts and Bills.

The Joint Committee is restricted to interpreting legislation and deciding whether it is compatible with its concept of certain international instruments. This is a judicial like function rather than a parliamentarian one and confines the capacity of those on it to act as members of the Legislature. In contrast members of the Scrutiny of Bills Committee undertake a much wider exercise and can deal with legislation as parliamentarians.[52]

3.49      The Queensland Council for Civil Liberties agreed that the Senate Scrutiny of Bills Committee 'should be the model' for the new joint committee but emphasised that it 'would not like to see [the Scrutiny of Bills Committee] abolished or its functions reduced in any way'.[53]

3.50      Professor James Allan from the University of Queensland opposed the bills '(t)o the extent the proposal outsources views about rights to offshore people'.[54] However, Professor Allan expressed support for 'the joint committee aspect'[55] and argued that the Human Rights Bill would be improved if the joint committee were to assess legislation against its own view of whether particular statutory language trespasses unduly on rights:

I think it would be a better bill if the joint committee were directed to consider whether bills trespass unduly on personal rights and liberties in accord with the existing set-up [of the Scrutiny of Bills Committee]. I think there is a risk in outsourcing the rights to treaties that were entered into under the prerogative power...

...

...just asking the legislators whether the bill unduly trespasses on personal rights and liberties really puts the question right to the elected legislators. The way this bill has been set up is not asking you what you think, it is asking you what you think the UN committee thinks, which is a mistake...^[56]

Departmental response

3.51      At the public hearing in Canberra, officers from the Attorney-General's Department responded to some of the concerns raised in relation to the definition of 'human rights'. An explanation was provided as to why the Human Rights Bill defines 'human rights' by reference to the seven core human rights treaties to which Australia is a signatory:

The government's view is that the seven treaties are widely recognised as the pre-eminent international human rights instruments. Together they cover the most prevalent areas of discrimination and human rights concerns. The rights in those treaties also overlap or duplicate rights found in other United Nations instruments. The seven treaties are directly relevant to the human rights issues which are likely to arise in the context of Australia's domestic legislation.

3.52      Further:

The seven treaties are international instruments to which Australia is a party and we have indicated to the world that we will abide by the obligations set out in them. The seven treaties were identified in the national human rights consultation committee report as listing the rights which should be protected and promoted. The seven treaties taken together provide a clear and useable set of enumerated obligations on which the new committee and public officials can rely when scrutinising legislation or drafting statements of compatibility respectively.[57]

3.53      The officer also put forward reasons for the omission from the definition of the ILO Convention No. 111 concerning Discrimination in respect of Employment and Occupation; the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief; and the UN Declaration on the Rights of Indigenous Peoples:

The Declaration on the Rights of Indigenous People is a UN resolution. It is not binding on Australia. The ILO is not considered to be a treaty in the same sense as those treaties I have referred to, and the declaration I think is exactly that and not binding on Australia.[58]

3.54      However, according to the departmental officer, the joint committee would not be precluded from considering such instruments:

The parliamentary committee can consider all those matters but would only report back...on the question of compatibility in relation to the seven treaties...But all those issues could indeed be engaged with, particularly through public hearings and so forth.[59]

3.55      The officer also noted that '[t]here is quite a considerable overlap, particularly in relation to Indigenous people', between the 'kinds of issues that are picked up in [the relevant declarations] and the rights and freedoms that are outlined in [clause 3]'.[60]

Functions and powers of new joint committee

3.56      A large number of submissions and witnesses argued that the functions and powers of the new joint committee should be expanded in order to enable it to better perform its role. Specifically, there were suggestions that, in addition to the Attorney-General's power to refer matters to the joint committee for inquiry and report, the joint committee should have the power to initiate its own inquiries.[61] Many also expressed the view that both Houses of the Parliament should have the ability to refer matters relating to human rights to the joint committee.[62]

3.57      Mr Nicholas Cowdery AM QC from the Law Council drew an analogy with the powers of other parliamentary joint committees in expressing support for the new joint committee to undertake its own inquiries:

...unlike other joint committees, the general powers for the human rights committee are not explicitly prescribed in the bill and do not extend to the committee initiating its own inquiries or receiving references from other than the Attorney-General into matters of substantial human rights concern. The Law Council submits that the effectiveness of the human rights committee would be enhanced by providing the committee with specific powers, including the power to initiate its own inquiries and receive references from elsewhere...[63]

3.58      Former Senator Mr Andrew Murray submitted that '[t]here is a deliberate omission in [clause] 7 which should be rectified' so that the new joint committee has 'the power to provide advice or make recommendations to the Parliament or to any Minister on human rights on its own motion'.[64]

3.59      Amnesty International argued that the joint committee's 'mandate should be expanded to allow for [it] to regularly conduct more thematic inquiries into human rights issues and how they relate to Commonwealth legislation'.[65] By way of example, Amnesty International pointed to the UK Joint Committee on Human Rights, noting that it 'regularly conducts inquiries on a broad range of areas with human rights implications'.[66]

3.60      Liberty Victoria expressed a similar view:

The Joint Parliamentary Committee on Human Rights in the United Kingdom, which is empowered to conduct own motion inquiries on thematic questions, has done enormously useful work in considering the human rights implications of a diverse array of government legislation, policies and practices...These thematic inquiries have been the most successful aspect of the Joint Parliamentary Committee's work, resulting in major changes in policy and extensive public education with respect to human rights issues.[67]

3.61      Members of the Centre for Comparative Constitutional Studies at the University of Melbourne agreed that the functions of the joint committee should be expanded to enable it to conduct wide-ranging inquiries:

[Our] recommendation is modelled on one of the terms of reference of the UK Parliament's Joint Committee on Human Rights [JCHR]. It has allowed the UK JCHR to examine systemic and structural issues about the protection of human rights, and issues about the protection of human rights in practice that are not revealed by a single-minded focus on the terms of Bills and Acts.[68]

3.62      The Human Rights Law Resource Centre supported a broad referral function from either House of the Parliament:

In the HRLRC's view, the functions conferred under s 7 should be expanded to include the power 'to inquire into any matter relating to human rights which is referred to it by resolution of either House of Parliament'. This would enhance the independence and effectiveness of the Committee and ensure that its capacity to conduct thematic inquiries is not solely determined by the Government of the day.[69]

Broader monitoring function for new joint committee

3.63      Many submissions suggested that the joint committee should have a broader human rights monitoring function as part of its power to self-initiate inquiries; and, in particular, that such a monitoring role should include the ability to initiate and conduct inquiries regarding the issues raised in the findings of UN treaty bodies (such as concluding observations) and special procedures of the UN Human Rights Council (such as reports of special rapporteurs, working groups and under the Universal Periodic Review process).[70]

3.64      Ms Emily Howie of the Human Rights Law Resource Centre submitted:

We...support and call for the expansion of the new parliamentary scrutiny committee's role and function to include monitoring and reporting on the implementation of the recommendations from United Nations human rights bodies. Through this function, the parliament can become part of the constructive dialogue with the international community on the application of international human rights standards in Australia. Parliament has an important institutional oversight role to play in relation to the implementation of treaties that are ratified by the executive...[71]

3.65      The Law Council agreed that the new joint committee should undertake a monitoring function:

...the Human Rights Committee would be well placed to assist the Australian Government in its interactions with the UN treaty monitoring bodies. When exercising its scrutiny functions under the Parliamentary Scrutiny Bill, the Human Rights Committee will develop experience and expertise at analysing how the rights contained in the seven core treaties apply in Australia. This experience and expertise would in turn prove useful when Australia is reporting on the performance of its international human rights obligations, or responding to recommendations from the treaty monitoring bodies.[72]

Departmental response

3.66      In evidence before the committee, a representative from the Attorney-General's Department explained the policy position with respect to own-motion inquiries for the new joint committee:

There is the capacity for own-motion inquiry around Acts, which is very clear and, in the department's view, quite broad. The policy decision taken thus far does limit the own-motion inquiries to those. However, the Attorney is able to refer matters too.[73]

3.67      In relation to any monitoring role for the joint committee, the representative confirmed that any such monitoring would need to be the subject of a specific referral from the Attorney-General.[74]

Procedural powers and resources for new joint committee

3.68      Many submissions made suggestions about the types of procedural powers that should be made available for the new joint committee. Some argued that these powers should be entrenched in the Human Rights Bill itself;[75] however, others considered that such matters could appropriately be included in resolutions of the Houses of the Parliament, as contemplated by clause 6.[76]

3.69      The Centre for Comparative Constitutional Studies at the University of Melbourne suggested that, if the joint committee is to operate effectively, 'it is likely to require the full suite of powers normally conferred on Committees by resolution of the House..., including the powers listed in Odgers Guide to Australian Senate Practice'. These include the power to:

• send for persons and documents (that is, to summon witnesses and require the production of documents);
• move from place to place;
• take evidence in public or private session;
• meet and transact business notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives; and
• appoint subcommittees.[77]

3.70      Former Senator Mr Andrew Murray submitted that the joint committee 'must be able to freely interact with Ministers, government agencies, and other individuals or entities as part of its function'. Further:

One would assume that would automatically be the case for any parliamentary committee, but if there is any doubt the [Senate Legal and Constitutional Affairs Committee] should recommend an unfettered ability to function in this manner.[78]

3.71      The Queensland Council for Civil Liberties agreed that the joint committee 'should be empowered to communicate directly with members of the Executive';[79] and the Law Council recommended 'that consideration be given to investing the Human Rights Committee with the power to request and obtain relevant information from Ministers and government departments in a timely manner'.[80]

3.72      There were also suggestions that the joint committee should have access to independent legal or specialist advisers to assist the committee in undertaking its work.[81] For example, the AHRC expressed the view that the new joint committee should have the ability to obtain and utilise independent legal advice in a similar way to other scrutiny committees:

...the Committee will be best able to execute its complex role with the assistance of independent legal advice. This will require adequate resourcing of the committee to ensure such advice as required. This is a common practice for committees of this nature. It is also a common feature of parliamentary scrutiny committees on human rights in other jurisdictions (such as in Victoria and in the United Kingdom).[82]

3.73      A number of submitters and witnesses also suggested that it is imperative that the new joint committee be adequately resourced to fulfil its functions,[83] particularly since, as Liberty Victoria (and a number of other submissions) noted, the seven core international human rights treaties to which Australia is a party are long and comprehensive instruments, and the task of reviewing all Commonwealth Bills and Acts with reference to these treaties is a 'formidable' one.[84]

3.74      The Centre for Comparative Constitutional Studies at the University of Melbourne described the joint committee's scrutiny task as being 'so onerous that there is a question whether the approach to human rights protection proposed in the Bill is practicable, except in the most perfunctory sense'. Further:

We have suggested that this Bill will only achieve its aims if the definition of human rights is expanded. However, this will make the already onerous task imposed by the Bill even more considerable. It is important that this be recognised before the Bill is enacted and appropriate commitments given that resources will be adequate to the task. (In particular, effective scrutiny could not be achieved if the Joint Committee on Human Rights were only allocated a single adviser as proposed in at least one submission.) It would be a great pity if the promise of the Bill is undone because resources are not adequate to the task of effective scrutiny.[85]

3.75      However, the Public Interest Advocacy Centre (PIAC) noted that, while there may be criticism that 'the task of considering seven instruments will be too complex', in practice:

...the complexity of the task is diminished by the fact that only the relevant human rights instruments and provisions will be considered, in the context of a particular legislative instrument. PIAC believes it is not only a good thing in principle to include all the international human rights instruments to which Australia is a party, but that it is necessary to ensure that the particular impacts of government laws on people facing particular disadvantage due to race, gender, age, disability, etc, need to be expressly considered and understood.[86]

3.76      In their submission, Mr Benjamin Lee and Mr Chris Sidoti also advocated a 'strategic and targeted' approach to the joint committee's work. In particular:

While required to screen all Bills for human rights compliance, the Committee should 'focus...its inquiries and reports on those Bills which raise prima facie human rights concerns'. Similarly, it should examine Acts 'with the greatest potential impact on human rights' first...[T]he Joint Committee should also have the power to appoint subcommittees. Accordingly, it may wish to consider dedicating a separate subcommittee to each of its main functions.[87]

Content, form and scope of statements of compatibility

3.77      Submitters strongly supported statements of compatibility as a mechanism to enhance government transparency and accountability, and to ensure that human rights considerations are integrated into policy-making and legislative development.[88] However, many argued that greater guidance should be provided in relation to the precise content, scope and form of statements of compatibility to, among other things, avoid them becoming a mere 'tick in the box' exercise.[89]

Lack of requirement for reasons

3.78      In particular, a number of submitters expressed concern about the lack of a requirement for reasons to be provided in a statement of compatibility.

3.79      As Liberty Victoria explained:

The statement of compatibility must include 'an assessment of whether the Bill is compatible with human rights'. This raises the question as to what will constitute an adequate and appropriate assessment. In the early years of the operation of the UK Human Rights Act, the Government thought it sufficient simply to say that the Minister concerned believed that legislation proposed was compatible or incompatible without specifying the reasons for that view. This is clearly inadequate. To be effective as a means of strengthening the capacity of the Parliament to review proposed legislation, a statement of compatibility must be accompanied by a clear analysis of provisions in a Bill that may limit human rights and the reasons for determining whether any such limit is consistent or inconsistent with the human rights to which it relates.[90]

3.80      The NSW Young Lawyers Human Rights Committee argued that, '[i]n addition to an 'assessment', it is critical that statements of compatibility also include reasoned, sound, evidence-based justifications in relation to any incompatibility with human rights'.[91]

3.81      The ACT Human Rights Commission submitted that a requirement for reasoned statements could be made clearer in the Human Rights Bill:

In our view this is important, because in the ACT the absence of reasons for compatibility has reduced the transparency of the compatibility assessment process, and has made it more difficult for the community to understand the reasoning behind compatibility decisions.[92]

3.82      Some submissions argued that a similar model to that used in Victoria should be adopted in the Human Rights Bill. For example, Dr Julie Debeljak noted:

Section 28(3) [of the Charter of Human Rights and Responsibilities Act 2006 (Vic)] explicitly acknowledges the possibility that a proposed law may be considered incompatible by requiring the executive to state whether a Bill is compatible or incompatible with human rights. Section 28(3) also imposes an obligation on the executive to state 'how [a Bill] is compatible' or 'the nature and extent of the incompatibility'.[93]

3.83      The ACT Council of Social Service (ACTCOSS) favoured the Victorian model over the approach taken in the Australian Capital Territory. According to ACTCOSS, '[u]nder the ACT model, there is a risk the scrutiny will be cursory and little in-depth analysis will be engaged in about the true extent' of a bill's compatibility with human rights. Specifically:

The Victorian requirement is more stringent than that of the ACT, as it requires an explanation of how the Bill is consistent, not just whether it is consistent and requires an explanation of the nature and extent of any incompatibility.[94]

Lack of guidance as to form

3.84      The Victorian Government noted that 'without any specific guidance' in the Human Rights Bill:

...there is the prospect of one-line statements of compatibility noting that a bill is incompatible with human rights without any detail regarding the human rights that are limited and why the legislation needs to be passed notwithstanding its incompatibility with human rights. This would not achieve the goal of increased transparency and accountability where proposed legislation is incompatible with human rights.[95]

3.85      The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) agreed:

In some jurisdictions, this type of provision has led to a one-line statement of compatibility. This approach has not been useful in informing parliament about the human rights issues raised by a bill and can severely limit the capacity of statements of compatibility to contribute to public oversight of legislation.[96]

3.86      However, drawing on the experience in Victoria, VEOHRC provided some useful information in relation to how statements of compatibility might develop over time:

In practice, Ministers have had to find a balance between providing enough detail and not being overly legalistic and technical. In Victoria, work has been done since the Charter came into force to find this balance and statements have improved in recent years. One of the ways this improvement has been achieved has been by focusing on the rights that may be limited, rather than every right that is potentially engaged by a bill. Public sector staff, particularly those directly involved in preparing statements of compatibility, are also becoming more adept at identifying and evaluating the human rights implications of legislative proposals. These developments have been accompanied by increasing use of public consultations when developing legislation (before it is tabled in Parliament).[97]

3.87      The Human Rights Law Resource Centre emphasised the importance of ensuring that the content and form of statements of compatibility are relative to the impact on human rights arising from any proposed legislation:

Statements [of compatibility] should not be too long, legalistic or technical as this will detract from their utility in informing parliamentary dialogue about rights. Neither, however, should they be too brief or cursory. The detail and length of Statements should be commensurate with the human rights implications of the proposed legislation or legislative instrument.[98]

3.88      The Human Rights Council of Australia suggested that an objects clause could be included in the Human Rights Bill as a means of clarifying what information should be included in statements of compatibility:

The Council submits that consideration be given to amending the Bill so as to include an objects provision or some other equivalent statement about the purposes of the Bill. This provision should make it clear that the purpose of the Bill is to promote and protect human rights. This will help to guide those preparing statements of compatibility.[99]

3.89      The Human Rights Council of Australia submitted further:

...statements of compatibility should, as far as possible, include a description of the nature and extent or the degree and type of incompatibility. Reasons should be given for why a legislative measure infringes an internationally recognised and declared human right, particularly where it has already been adopted or endorsed by the Australian Government. This will assist both the Parliament and the Parliamentary Joint Committee in making an assessment as to whether the measure is justified for proper policy reasons.[100]

Lack of guidance for derogating from certain human rights

3.90      The Gilbert and Tobin Centre of Public Law (Gilbert and Tobin Centre) also noted that the Human Rights Bill does not provide instruction on the basis for drafting and considering statements of compatibility that will accompany legislation (nor on how the new joint committee should carry out its functions). In particular, the Gilbert and Tobin Centre noted that the Human Rights Bill does not set out any principles that should be applied by the joint committee, Ministers or the Parliament more generally when considering conflicting rights or the need to derogate from certain human rights; therefore, the Human Rights Bill should be amended to clarify the position in respect of non-absolute, or 'derogable', human rights.[101]

3.91      Similarly, the Law Council argued:

Unlike the consolidated lists of rights contained in human rights legislation in the ACT, Victoria and the UK, there is no common limitation clause or proportionality test within the seven core treaties to guide decision makers as to what circumstances, if any, may justify a limitation on or derogation from a protected right. This has implications for the information and analysis included in the Statements of Compatibility and their format.[102]

Timing for presentation of statements of compatibility

3.92      The Human Rights Bill does not specify when statements of compatibility should be presented, although the EM suggests that the statement will usually be incorporated in the EM or the explanatory statement accompanying the relevant bill or legislative instrument.[103]

3.93      PIAC suggested that the Human Rights Bill be amended to clearly provide that statements of compatibility should be presented before the second reading speech. In particular, PIAC submitted that the Human Rights Bill should include a provision similar to subsection 28(2) of the Victorian Charter of Human Rights and Responsibilities Act 2006 which states:

A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.[104]

3.94      The Centre for Comparative Constitutional Studies at the University of Melbourne argued that any substantive amendments to a bill should also be accompanied by a statement of compatibility:

Statements of Compatibility should be required for any substantive proposed amendment to a Bill (even if such statements may not be able to be introduced at precisely the same time as the Bill). Experience in New Zealand has shown that the amendment process is one of the stages in which legislation is vulnerable to the inclusion of poorly thought out additions that can have serious implications for human rights. For the same reason, legislation that undergoes substantial amendment after it has passed though the joint committee process should be returned to the committee to determine if it wishes to make any further points with respect to amendments.[105]

Training for those preparing statements of compatibility

3.95      The Law Council argued that the quality of statements of compatibility will rest upon the provision of adequate human rights training for public servants:

...in order to ensure the quality of Statements of Compatibility, and that human rights considerations are integrated throughout the policy making process, it will be critical that all government policy makers receive adequate training in order to become familiar with the rights contained in the definition proposed in clause 3 and their practical application in the Australian context.

...This is likely to be resource intensive for many Departments and Agencies who may benefit from a centralised repository of advice, such as a particular Unit within the Attorney General’s Department.

This approach has been adopted in Victoria where the Human Rights Unit within the Department of Justice has responsibility for coordinating implementation of the Charter of Human Rights and Responsibilities (the Charter) and facilitating the development of a human rights culture across the Victorian Government.[106]

3.96      PIAC suggested the development of guidelines for those preparing statements of compatibility:

PIAC submits that the nature of the examination envisaged in the Explanatory Memorandum and Second Reading Speech necessitates the development of comprehensive guidelines for legislative and policy officers across government, to enable them to make reasoned and rigorous assessments to complete statements of compatibility. These guidelines will need to include information regarding relevant interpretive communications and international and domestic human rights jurisprudence appropriate to the identified human rights to be considered under the Bill.[107]

Departmental response

3.97      At the Canberra public hearing, an officer from the Attorney-General's Department reiterated the intended purpose of statements of compatibility as a 'dialogue' between the executive and the legislature:

The bills establish a requirement that all new legislation be accompanied by a statement of compatibility outlining the compliance of the new laws with the rights set out in the seven treaties. However, statements are not simply an additional step in the legislative process. As the Attorney-General has said in the debate on the bills, the statements effect a dialogue between the executive which is responsible for formulating statements and the legislature which considers the statements as part of its process for enacting new laws. Statements of compatibility also ensure that human rights are considered from the very early stages of policy formulation and they contribute to the transparency and accountability of government. Taken together the requirement for statements of compatibility and the establishment of the joint committee on human rights will provide increased parliamentary scrutiny, support a transparent and accountable legislative process, and promote greater participatory democracy.^[108]

3.98      In relation to the content of statements of compatibility, the departmental officer noted that '[i]t will be a matter for each minister how the relevant statement of compatibility is prepared and expressed'. Further:

There is nothing which prevents ministers from including in those statements an explanation as to why the exercise of a certain right may have been limited. For example, statements may contain analysis of restrictions or limitations on rights in a bill and an assessment on whether restrictions are in the interests of other individuals or society more generally as consistent with the government's responsibilities under the seven treaties. Overall, statements 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.[109]

3.99      The officer also clarified that the effect of statements of compatibility will not be as far-reaching as in other jurisdictions:

The bill does not confer additional powers on judges and statements of compatibility do not change the current rules of statutory interpretation. The courts can only use statements of compatibility as aides to statutory interpretation similar to explanatory memoranda. The bills do not provide judges power to issue statements of inconsistency—that is, declarations that a law is inconsistent with a jurisdiction's human rights obligations, as is the case in the United Kingdom, the Australian Capital Territory and Victoria.[110]

Committee view

3.100         The committee notes that the key objectives of the measures contained in the Human Rights Bill are to enhance understanding of, and respect for, human rights in Australia, and to ensure appropriate recognition of human rights issues in legislative and policy development. The committee strongly supports these objectives. The committee is of the view that the new Parliamentary Joint Committee on Human Rights will provide a platform for an Australian human rights discourse, and regards the establishment of the joint committee as an integral element of the Human Rights Framework announced by the Attorney-General in April 2010.

3.101         The committee notes that the vast majority of submitters and witnesses expressed their in-principle support for the measures contained in the bills. Much of the evidence provided to the committee during the course of the inquiry was therefore aimed at improving the effectiveness of the bills in achieving their objectives. The committee is cognisant that contributors to the inquiry invested considerable time and energy in identifying possible improvements to the bills, and acknowledges all efforts made in that regard.

Definition of 'human rights'

3.102         The committee heard a range of views regarding the definition of 'human rights' in clause 3 of the Human Rights Bill, which defines 'human rights' by reference to the seven core UN human rights treaties. In particular, concerns were raised that the definition is restrictive and fails to capture the full range of internationally protected human rights.

3.103         The committee notes that a number of submitters and witnesses suggested that additional international human rights instruments should be added to the list of seven core treaties in the proposed definition. In particular, it was suggested that the ILO Convention No. 111 concerning Discrimination in respect of Employment and Occupation; the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion and Belief; and the UN Declaration on the Rights of Indigenous Peoples, should be included in the list of international human rights instruments identified in subclause 3(1).

3.104         However, the Attorney-General's Department advised that the seven core treaties are the pre-eminent international human rights instruments and that there is considerable overlap between the provisions of those instruments and the provisions of the treaties already listed in subclause 3(1). While their inclusion may assist in clarifying the definition of 'human rights', the committee agrees that it is unnecessary to specifically include them at this stage.

3.105         Evidence to the committee also raised concerns that the approach of defining human rights by reference to the core international human rights treaties is static and makes no provision for the incorporation of rights protected under international instruments to which Australia may accede in the future. Further, the definition does not encompass other important domestic sources of law which protect human rights: namely, the rights protected under the Australian Constitution, statute and the common law. In particular, the committee notes the omission from the definition of those rights recognised under domestic law, and the inability of the definition to accommodate new rights which may be recognised in the future (under international or domestic law).

3.106         Several submissions and witnesses suggested that human rights should be defined by reference to the sources of law which establish rights. The committee considers that this may be a superior approach because it permits the inclusion of rights recognised under domestic Australian law, which may not be recognised internationally, and it allows the content of rights to evolve over time without the need for amendments to the statutory definition. Further, such an approach may facilitate parliamentarians undertaking assessments of human rights compatibility based on their own judgements, rather than requiring them to undertake a judicial-like function. The committee notes that this would align with the approach taken by the Senate Scrutiny of Bills Committee in assessing bills against its terms of reference which, in the view of the committee, accounts for that committee's long-term effectiveness in protecting and promoting fundamental common law rights.

3.107         The committee acknowledges the extensive discussion and evidence throughout the inquiry in relation to the definition of 'human rights'. However, the committee is of the view that, at this stage, priority should be given to establishing the joint committee, and the seven core UN conventions listed in clause 3 provide an appropriate context at this point in time within which the joint committee should operate. In other words, the committee is satisfied that the current definition of 'human rights' is appropriate to provide an initial reference point upon which the new joint committee can rely when undertaking its scrutiny role. As noted by the Attorney-General's Department, the seven core conventions taken together provide a clear set of overarching obligations most directly relevant to the types of human rights issues which are likely to arise in the context of Australian domestic legislation.

3.108         Having said that, the committee recognises that the current definition of human rights may be too prescriptive in practice and that an inclusive definition of 'human rights' may be a preferable long-term approach. Accordingly, the committee considers that the joint committee should comprehensively review the definition of 'human rights' and the scope under which it has operated during its first 12 months. The purpose of the review should be to ensure that the seven core UN conventions provide an appropriate basis for the definition and to ascertain, in particular, whether the following sources of law should be specifically articulated in the definition itself:

• the Australian Constitution;
• the common law as applied in Australia; and
• statutes of the Commonwealth or state or territory parliaments.

3.109         The committee is also of the view that, as far as possible, there should be consistency between the definition of 'human rights' for the purposes of the joint committee and for the purposes of the mandate of the Australian Human Rights Commission. The committee is aware that the AHRC Act is currently being reviewed; following that review, the committee recommends that the respective definitions of 'human rights' used for both purposes should be harmonised.

Recommendation 1

3.110         In acknowledging the significant level of discussion throughout the inquiry in relation to the definition of 'human rights' in clause 3 of the Human Rights Bill and its relevance to the role and functions of the proposed joint committee, the committee recommends that the joint committee undertake a comprehensive review of the definition at the end of the joint committee's first 12 months of operation. The purpose of the review should be to ensure that the seven core UN conventions provide an appropriate basis for the definition, and the review should include specific consideration of whether the following sources of law should be articulated in the definition:

• the Australian Constitution;
• the common law as applied in Australia; and
• statutes of the Commonwealth or state or territory parliaments.

The joint committee's review should also consider harmonising the definitions of 'human rights' for the purposes of the new joint committee and for the purposes of the Australian Human Rights Commission's mandate.

Role and mandate of new joint committee

3.111         The committee considers that the functions of the new joint committee, as described in clause 7 of the Human Rights Bill, are too limited, and that the joint committee should be given a wider mandate to allow it to operate more flexibly. In particular, the committee agrees with suggestions that the joint committee should have broad and permissive powers to undertake own-motion inquiries in relation to those human rights issues relevant to its duties and functions, particularly in relation to thematic or systematic human rights issues, or those of national significance.

3.112         The committee is of the view that the joint committee should not be restricted to inquiring into matters that the executive is willing to refer to it, rather than having a wider remit to identify and investigate human rights issues of its own initiative. The current requirement for a reference from the Attorney-General is, in the committee's view, a significant restraint on the potential effectiveness of the joint committee, as it may have the effect of limiting the joint committee's capacity to conduct general human rights inquiries to the priorities and agendas of the government of the day. If it is only the Attorney-General who has the power to refer matters impacting on human rights which are not regulated by a Commonwealth Act to the joint committee, there may well be circumstances where particular inquiries would be uncomfortable for the relevant government and would never be referred. In the committee's view, that would clearly be an unsatisfactory outcome.

3.113          Further, as currently drafted, clause 7 would not empower the joint committee to initiate inquiries in relation to existing subordinate legislation, in order to determine whether that legislation is consistent with human rights, because paragraph 7(b) refers only to the ability of the joint committee to examine Acts for compatibility with human rights. As legislative instruments regulate many significant matters, this could prevent the joint committee from properly fulfilling its role of scrutinising the full range of existing Commonwealth legislation.

3.114         The committee also notes that existing parliamentary joint committees with statutory functions have broad powers to initiate and conduct inquiries related to their duties or functions. Under their establishing legislation, those committees are also able to inquire into matters related to their duties and functions which are referred to them by either House of the Parliament.[111]

3.115         The committee's view is that the new joint committee should have a similarly broad mandate, to examine not only the compatibility of Commonwealth Acts with human rights standards, but also other human rights issues of systemic or national significance. The committee is also concerned to ensure that the joint committee has the independence and credibility which comes from joint committees receiving broader references from the parliamentary chambers.

3.116         As a result, the committee recommends that clause 7 of the Human Rights Bill should be amended to provide the joint committee with the power to initiate human rights inquiries connected to its functions, and to inquire into human rights matters connected to its functions which have been referred by either House of the Parliament. The committee notes that, under a broader function articulated in this way, the joint committee would also have the ability to examine issues raised in the findings of UN treaty bodies (such as concluding observations) and special procedures of the UN Human Rights Council (such as reports of special rapporteurs, working groups and under the Universal Periodic Review process), if considered appropriate.

3.117         As an additional point, the committee recommends that specific provision should be made in clause 7 of the Human Rights Bill for the joint committee to examine any amendments to bills; and recommends that statements of compatibility must accompany all such amendments, particularly those amendments which have a substantive outcome or impact.

Recommendation 2

3.118         The committee recommends that clause 7 of the Human Rights (Parliamentary Scrutiny) Bill 2010 be amended to enable the proposed joint committee to report to both Houses of the Parliament, with such comments as it thinks fit, upon any matter connected with the performance of its functions that the joint committee considers should be directed to the attention of the Parliament.

Recommendation 3

3.119         The committee recommends that clause 7 of the Human Rights (Parliamentary Scrutiny) Bill 2010 be amended to enable the proposed joint committee to inquire into any matter or question in connection with its functions which is referred to it by either House of the Parliament, and to report to that House upon that matter or question.

Recommendation 4

3.120         The committee recommends that paragraph 7(a) of the Human Rights (Parliamentary Scrutiny) Bill 2010 be amended to specifically provide that the proposed joint committee may examine any amendments to bills that come before either House of the Parliament for compatibility with human rights.

Procedural powers and proceedings for the new joint committee

3.121         The committee agrees with suggestions that the joint committee should have wide-ranging procedural powers in order for it to properly fulfil its role and purpose, and is of the view that the Senate Scrutiny of Bills Committee is a useful model on which such powers could be based. In particular, the committee considers that the joint committee should have the unfettered ability to communicate with Ministers (and relevant government departments and agencies) to request and obtain information relevant to its functions; and to request clarification, or consideration that matters or concerns be addressed in a particular way.

3.122         In line with the powers of other parliamentary joint committees and the Senate Scrutiny of Bills Committee, it is imperative that the new joint committee has the power to, for example, call for submissions, conduct public hearings, move from place to place and examine witnesses, including relevant departmental officers. The committee notes advice in the Attorney-General's second reading speech, the EM, and evidence from the Attorney-General's Department that this is intended; and the committee anticipates that such procedural powers would be included in the resolutions of both Houses, as provided for under clause 6 of the Human Rights Bill.

3.123         The EM to the Human Rights Bill suggests that the joint committee will be able to determine the manner in which it performs its scrutiny function, to ensure that reports on the compatibility of bills and legislative instruments with human rights are provided to the Parliament in a timely manner.[112] The committee is of the view that the joint committee should have to ability to report to the Parliament on a regular basis (for example, on a weekly basis if considered appropriate), in a similar way to the Senate Scrutiny of Bills Committee. Therefore, the committee considers that the Parliament's resolutions, as contemplated by clause 6, should entrench a specific power for the joint committee to report from time to time its proceedings and evidence, and any recommendations; and to make regular reports of the progress on its proceedings.

3.124         The committee also emphasises the importance of adequate resources for the joint committee, including engagement of specialist legal advisers as considered appropriate, and a suitably staffed secretariat.

3.125         As a final point, the committee recognises that there may be some interaction between the new joint committee and the existing bipartisan Senate Scrutiny of Bills and Regulations and Ordinances committees. The committee notes that there are many circumstances where Senate, House and joint committees have overlapping responsibilities: parliamentary committees are often required to perform their functions in a manner that prevents unnecessary duplication and accords comity to the activities of other committees. The committee's view is that the new joint committee should not prevent existing Senate scrutiny committees from continuing to perform their valuable roles. While there may be some overlap between the role of the new joint committee and these existing committees, the committee is confident that the committees will identify and develop constructive means of operating in tandem, and effectively managing any such interaction.

Recommendation 5

3.126         The committee recommends that the parliamentary resolutions contemplated under clause 6 of the Human Rights (Parliamentary Scrutiny) Bill 2010 relating to the powers and proceedings of the proposed joint committee should include the ability for the committee to report from time to time its proceedings and evidence, and any recommendations; and to make regular reports on the progress of its proceedings.

Recommendation 6

3.127         The committee recommends that the parliamentary resolutions contemplated under clause 6 of the Human Rights (Parliamentary Scrutiny) Bill 2010 relating to the powers and proceedings of the proposed joint committee should include the ability to interact freely with, and request and obtain information from, Ministers, government agencies and other individuals or entities in relation to the exercise of the joint committee's functions.

Recommendation 7

3.128         The committee recommends that the parliamentary resolutions contemplated under clause 6 of the Human Rights (Parliamentary Scrutiny) Bill 2010 relating to the powers and proceedings of the proposed joint committee should include the ability to draw to the relevant Minister's attention any matters or concerns in relation to a bill, Act, legislative instrument or other human rights issue; and to request clarification, or consideration that those matters or concerns be addressed in a particular way.

Statements of compatibility

3.129         The committee recognises that statements of compatibility will have an important role in forming part of the dialogue between the executive and the legislature, and providing an initial assessment of the executive's view of the human rights compatibility of a particular bill or legislative instrument. The committee supports statements of compatibility as a useful mechanism to enhance government transparency and accountability, and to assist in ensuring that human rights standards are considered during the legislative process.

3.130         In the committee's view, statements of compatibility will form one part of the range of information, material and resources provided to the Parliament (and to the joint committee) to inform parliamentary debate and to enhance the understanding of human rights issues throughout the legislative process. Further, the committee would expect the joint committee, in assessing and reporting on the human rights compatibility of legislation and legislative instruments, to conduct rigorous, evidence-based and independent analysis, over and above its consideration of statements of compatibility. The joint committee will necessarily draw its own conclusions in reporting on the compatibility of legislation with applicable human rights standards.

3.131         The joint committee will develop expertise on statements of compatibility over time; and the joint committee will no doubt express its view in due course with respect to the content of statements of compatibility and the manner in which they are, and should be, presented so as to provide optimal assistance to the joint committee (and the Parliament) in its examination of proposed legislation against relevant human rights standards.

3.132         The committee is mindful of evidence it received from a number of witnesses and submitters expressing concern that the Human Rights Bill provides little guidance in relation to the content and form of statements of compatibility. The committee considers that the Attorney-General's Department should, as soon as practicable, set out more detailed requirements in relation to the form and content of statements of compatibility, and make them publicly available.

3.133         In this context, the committee understands that, while there is no prescribed form for statements of compatibility, a range of templates will be developed to assist in their preparation.[113] The committee would also encourage the development of guidelines to assist those preparing statements of compatibility. As a matter of principle, the committee considers that statements of compatibility should be comprehensive and sufficiently detailed, but not legalistic or overly complex.

3.134         The committee recommends that the Human Rights Bill should be amended to provide that statements of compatibility must clearly explain the nature and extent of, and provide reasons for, any incompatibility with relevant human rights standards. Relevant to that, the committee notes that the EM provides that the level of analysis in statements of compatibility must be proportionate to the impact of the proposed legislation on human rights.[114]

3.135         The committee also agrees with the suggestion that an objects clause could be usefully included in the Human Rights Bill as a means of clarifying what information should be included in statements of compatibility. The objects clause should make it clear that the purpose of the Human Rights Bill is to promote and protect human rights in Australia. In the committee's view, such a clause may assist in providing guidance in the preparation of statements of compatibility.

3.136         The committee also considers that there should be a clearer articulation as to the timing of presentations of statements of compatibility to the Parliament in the EM to the Human Rights Bill. Specifically, the EM should be revised to explain that statements of compatibility must form part of, or be attached to, the EM and must be provided as part of the EM's presentation to the Parliament.[115]

Recommendation 8

3.137         The committee recommends that subclause 8(1) of the Human Rights (Parliamentary Scrutiny) Bill 2010 be amended to require that a member of Parliament who proposes to introduce amendments to a bill into a House of the Parliament must cause a statement of compatibility to be prepared in respect of those amendments.

Recommendation 9

3.138         The committee recommends that the Human Rights (Parliamentary Scrutiny) Bill 2010 be amended to include an objects clause to serve as a means of clarifying the content of statements of compatibility by clearly articulating that the purpose of the Human Rights Bill is to promote and protect human rights in Australia.

Recommendation 10

3.139         The committee recommends that clauses 8 and 9 of the Human Rights (Parliamentary Scrutiny) Bill 2010 be amended to provide that statements of compatibility must clearly explain the nature and extent of, and provide reasons for, any incompatibility of a bill or legislative instrument with relevant human rights standards.

Recommendation 11

3.140         The committee recommends that the Explanatory Memorandum (EM) to the Human Rights (Parliamentary Scrutiny) Bill 2010 be revised to provide greater detail in relation to the timing of presentation of statements of compatibility, namely that statements of compatibility must form part of, or be attached to, the EM and must be provided as part of the EM's presentation to the Parliament.

Recommendation 12

3.141         Subject to the preceding recommendations, the committee recommends that the Senate pass the Human Rights (Parliamentary Scrutiny) Bill 2010 and the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010.

Senator Trish Crossin

Chair

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