ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS


ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS

1.1        The Australian Greens are committed to Australia fully discharging its international human rights obligations, at home and abroad. This means a greater international respect for and protection of human rights; and, stronger international machinery for the protection of human rights, such as the United Nations Human Rights Council and the United Nations treaty bodies.

1.2        We agree with the majority of submissions that these bills are a welcome first step towards human rights protection but that the Government has fallen short of meeting community expectations by failing to introduce a Human Rights Act.  The opportunity to extend to all Australians meaningful and practical protection has been missed.

A Human Rights Act – a missed opportunity

1.3        Australia is the only western democracy which does not guarantee the consideration of our human rights by the Government, the parliament or the courts through an effective federal constitutional or statutory mechanism, such as a Human Rights Act. More often than not human rights are inextricably linked to human dignity – in the case of refugees and their families, in the case of those experiencing mental health issues or the aged or in the case of our Indigenous peoples. The implementation of a National Human Rights Act would substantially enhance our democracy and grant many Australians the human dignity expected in our liberal democracy.

1.4        We note that the Government has committed to reviewing the Australian Human Rights Framework in 2014 and urge that the terms of reference of this review include consideration of a Human Rights Act.

Recommendation 1

1.5        That the 2014 review of the Human Rights Framework includes a commitment to the implementation of a Human Rights Act.

Definition of human rights – unnecessarily narrow

1.6        Section 3(1) of the Human Rights (Parliamentary Scrutiny) Bill 2010 provides the definition of human rights for the purposes of the Act. The definition is restrictive with rights being clearly limited to the seven international instruments listed and must be more encompassing than the minimum obligation laid out by our international commitments.

1.7        Submissions to this inquiry have noted that there are multiple other international sources of rights which the bill could be expanded to include. For example, but not limited to, the:

  • Convention relating to the Status of Refugees 1951
  • Conventions of the International Labour Organisation to which Australia is a Party
  • UN Declaration on the Elimination of Intolerance and Discrimination Based on Religion and Belief
  • UN Declaration on the Rights of Indigenous Peoples
  • Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
  • Convention for the Protection of All Persons from Enforced Disappearance (not yet in force)
  • Optional Protocol to the Convention against Torture.

1.8        The Greens are particularly concerned that, with more than 6000 asylum seekers held in immigration detention, this Bill does not include a specific reference to the Convention relating to the Status of Refugees. When the purpose of the proposed Joint Committee is to assess the human rights compatibility of legislation before it, excluding key international rights from its scope is not only inappropriate, but also inconsistent with basic human rights principles. Expanding the list of human rights treaties to which Australia is a signatory, would therefore allow for consideration of a broader range of human rights issues when developing legislation.

1.9        We disagree with the majority Committee Report with regard to the definition of human rights. Given the broad dissatisfaction with the definition amongst submissions we do not believe the definition is an appropriate initial reference point. We believe that the matters listed in recommendation 1 of the majority Committee Report, regarding the definition and sources of law, should be addressed by the Minister prior to the passage of these bills.

Recommendation 2

1.10             That section 3 of the Human Rights (Parliamentary Scrutiny) Bill 2010 be amended to state that the human rights explicitly listed are not considered to be exhaustive and do not preclude consideration of other rights (be they pre-existing rights within Australian domestic law, common law rights, statutory or Constitutional rights).

Recommendation 3

1.11             That there should be consistency between the definition of human rights for the purposes of the proposed Parliamentary Joint Committee and the Australian Human Rights Commission’s mandate. Specifically we note that the Commission itself 'recommends that the Human Rights (Parliamentary Scrutiny) (Consequential Provisions) Bill 2010 include amendments to the Australian Human Rights Commission Act 1986 to include the following instruments within the definition of human rights for the purposes of that Act:

  • International Covenant on Economic, Social and Cultural Rights;
  • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and
  • UN Declaration on the Rights of Indigenous Peoples.'

Recommendation 4

1.12             We support the Human Rights Law Reform Commission's recommendation that an additional provision, clause 3(3), be inserted into the Bill, which states:

International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in determining the scope and content of the rights and freedoms recognised or declared by an international instrument.

Role of the parliamentary joint committee – a broad mandate

1.13      In order for the proposed Parliamentary Joint Committee (PJC) to be effective the bill should provide some guidance in respect of non-absolute, or derogable, human rights.

1.14      The Greens agree with the recommendation of the National Human Rights Consultation Report that the same limitations with regard to derogable rights that are set out in the Victorian and ACT human rights statutes should apply federally. Section 7(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) states:

A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including:

(a)          the nature of the right; and

(b)          the importance of the purpose of the limitation; and

(c)          the nature and extent of the limitation; and

(d)          the relationship between the limitation and its purpose; and

(e)          any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

1.15      In the absence of a federal Human Rights Act these limitations should be provided to the PJC as guidance for their deliberations and reports.

1.16      It is desirable for the Australian PJC to have powers comparable to the UK House of Lords/House of Commons Joint Committee on Human Rights, These include, but are not limited to, the power to initiate inquiries into issues raised in findings of United Nations treaty bodies and special procedures of the UN Human Rights Council (such as reports of special rapporteurs, working groups and under the Universal Periodic Review process).

1.17      We support the majority Committee Report recommendations 2 through to 7 inclusively. The Australian Greens draw particular attention to the need for the PJC to have a broad function.

Recommendation 5

1.18             Section 7(c) of the Human Rights (Parliamentary Scrutiny) Bill 2010 be amended to grant additional powers of inquiry to the Parliamentary Joint Committee, specifically the power to inquire into and report on any matter relating to human rights referred by either House of the Parliament and the power to inquire into and report on any matter relating to human rights that it sees fit.

Statements of compatibility – form and timeliness

1.19      The effectiveness of the statements of compatibility will rely on their form and their timeliness.

1.20      The Australian Greens recommend that the Bill should include a provision similar to section 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.

1.21      We understand that the statements of compatibility would have the same weight in statutory interpretation as that currently granted to Explanatory Memoranda and will provide a guide to the judiciary as to the Parliament's intent. The statements should be drafted to a minimum standard which ensures the statements are effective.

1.22      In order to provide guidance to members introducing bills, we agree with the submission of the Public Interest Advocacy Centre which suggests that clauses 8(3) and 9(2) should replicate section 28(3) of the Victorian Charter of Human Rights and Responsibilities 2006. That section states that:

A statement of compatibility must state –

(a)          whether, in the member's opinion, the Bill is compatible with human rights and, if so, how it is compatible; and

(b)          if, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility.

1.23      The Greens agree with recommendation 8 of the majority Committee Report.

1.24      Recommendation 9 of the majority Committee Report has our partial support. However, if an objects clause is inserted it should guide the public, the judiciary, the parliament, the PJC, and no doubt many others, as to the intent of the bill. We agree with the suggestion of the Human Rights Council of Australia that the object of the bill should be to promote and protect human rights.

1.25      We agree with the sentiment of the Committee's recommendations 10 and 11, however we would suggest the following be substituted.

Recommendation 6

1.26             That an objects or statement of intent clause be inserted into the bills.

Recommendation 7

1.27             That section 8 of the Bill be amended to include a provision similar to section 28(2) of the Victorian Charter of Human Rights and Responsibilities Act 2006 ensuring statements of compatibility are tabled prior to second reading speeches.

Recommendation 8

1.28             That sections 8(3) and 9(2) of the Bill be amended to include a provision similar to section 28(3) of the Victorian Charter of Human Rights and Responsibilities Act 2006 providing guidance on the required content for statements of compatibility.

1.29      The Greens look forward to considering the Government's response both to the Committee's recommendations and our recommendations outlined above prior to the debate in the Senate.

Senator Sarah Hanson-Young

Australian Greens

Navigation: Previous Page | Contents | Next Page